Karnataka High Court
Jyothi Veeranna S/O Ravindrappa vs Jyothi Jagadeeshappa on 10 July, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
REGULAR FIRST APPEAL No.1484/2003 (DEC)
BETWEEN
1. JYOTHI VEERANNA,
S/O RAVINDRAPPA,
2. JYOTHI KOTRESHI,
S/O RAVINDRAPPA,
(BOTH MINORS, REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
SMT.RATNAVVA,
W/O. RAVINDRAPPA, HOTEL KEEPER,
CHIKKAJANU NEAR KAMPLI,
HOSPET TALUK. ... APPELLANTS
(BY SRI P CHANDRASHEKAR, ADVOCATE)
AND :
JYOTHI JAGADEESHAPPA
S/O. MOOGA BASAPPA
40 YEARS,
AGRICULTURIST,
MYDUR VILLAGE,
HARAPANAHALLI TALUK. ... RESPONDENT
(BY SRI G S GURUMATH, ADVOCATE FOR CAVEATOR /
RESPONDENT)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF THE CIVIL PROCEDURE CODE, 1908,
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AGAINST THE JUDGMENT AND DECREE DATED: 14.08.2003
PASSED IN O.S.No.225/2002 ON THE FILE OF THE CIVIL
JUDGE,(SR.DN.), HARIHAR, DECREEING THE SUIT FOR
DECLARATION, POSSESSION AND INJUNCTION.
THIS RFA COMING ON FOR FURTHER ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 and 2 in O.S. No.225/2002 (old No.76/1994) on the file of Civil Judge (Sr. Dn.), Harihar, have come up in this appeal impugning the judgment and decree dated 14.08.2003 in decreeing the suit of the plaintiff for declaration and permanent injunction.
2. The facts leading to this second appeal are as follows:
2.1 The suit in O.S. No.76/1994 before the Court of Civil Judge and JMFC., Hospet, is for the relief of declaration of plaintiff's title in respect of suit schedule properties viz., lands bearing: Sy. No.284 measuring 04 cents; Sy. No.354 measuring 03 Acres 93 cents; Sy. No.355B measuring 01 Acre 39 cents; Sy. No.360B measuring 94 cents and Sy. No.359A measuring 09 Acres 13 cents and consequently, for perpetual -3- injunction restraining the defendants, their heirs, agents etc., from interfering with his peaceful possession and enjoyment of the suit schedule properties. He also sought for a direction to the Revenue authorities to correct the mutation entries in the revenue records pertaining to the suit schedule lands by entering his name as the owner in possession. The said suit was re-numbered as O.S. No.657/2000 on being transferred to the Court of Prl. Civil Judge, Davanagere. Subsequently, it was transferred to the Court of Civil Judge (Sr. Dn.), Harihar, and re-numbered as O.S. No.225/2002.
2.2 The plaintiff is the biological son of Sri Basappa @ Basappa Jyothi and Smt. Annakka @ Annapoornavva. It is stated in the plaint that plaintiff's grandfather, Jyothi Channa Settappa, had two brothers, namely, Linga Settappa and Mana Settappa. Mana Settappa died issueless. Linga Settappa had a son by name Rudra Settappa. The said Rudra Settappa had only one daughter by name Smt. Pathri Basavva, who was married to her maternal uncle, Mooga Basappa Setty @ Mooga Basappa. Since Smt. Pathri Basavva and Mooga Basappa were issueless, they adopted the plaintiff when he was eight -4- years old in a ceremony by observing the religious and customary formalities, which included giving of the plaintiff by his genitive parents and taking him in adoption by his adoptive parents, in the presence of more than 25 persons. In that behalf, the genitive parents of the plaintiff executed adoption deed dated 16.06.1961, which was registered in the office of Sub-Registrar, Harapanahalli. The suit schedule properties were owned by Mooga Basappa Setty and Smt. Pathri Basavva and they were in possession and enjoyment of the same. The plaintiff referred to the recital in the adoption deed dated 16.06.1961, wherein his adoptive parents had affirmed that the movable and immovable properties of the adoptive family belonged to him.
2.3 It is stated that about one year after execution of adoption deed, misunderstanding arose between the adoptive parents and genitive parents of the plaintiff and as a result, his adoptive parents viz., Sri Mooga Basappa and Smt. Pathri Basavva unilaterally executed registered document dated 21.06.1962 cancelling the adoption deed dated 16.06.1961.
It is further stated that the plaintiff's adoptive father, Mooga -5- Basappa Setty, went missing from Mydooru village about 20 years next before the date of filing of the suit and his whereabouts were not known and he was presumed to be dead. The plaintiff was assisting his adoptive mother, Smt.Pathri Basavva, who was old, by getting her lands cultivated and he was managing the affairs of the house. It is the further case of the plaintiff that the parents of the defendants viz., Smt. Rathnavva and Ravindrappa never took care of Smt. Pathri Basavva except visiting her once in a while on the pretext of enquiring about her health and they were staying at Chikka Janur village near Kampli, which is more than 80 Kms. from Mydur / Mydooru. It is alleged that the defendants by misrepresentation and playing fraud on Smt. Pathri Basavva, got the Will dated 23.08.1989 (mentioned as 03.08.1989 in the plaint) executed by her.
2.4 It is further averred in the plaint that the plaintiff immediately after the death of Smt.Pathri Basavva, applied for mutation of the suit properties in his name on the basis of registered adoption deed dated 16.06.1961. The parents of the defendants too applied for mutation of the suit properties -6- in their favour on the basis of the alleged Will dated 23.08.1989 executed by Smt. Pathri Basavva. The matter was referred to Deputy Tahasildar, Chigateri, who by his order dated 22.06.1994, allowed the application filed by Smt. Rathnavva and Sri Ravindrappa and ordered for mutation of the suit properties (excluding the extent of 05 Acres in Sy. No.359AB) in favour of the minor defendants represented by their mother, Smt. Rathnavva. Since the defendants threatened to dispossess the plaintiff from the suit schedule properties on the strength of the said order of mutation, he filed the suit for the aforesaid reliefs.
2.5 On service of suit summons, minor defendants represented by their mother and natural guardian appeared through their counsel. Smt. Rathnavva, the mother of the defendants, filed her written statement. She denied the fact that Mana Settappa died issueless and Rudra Settappa was the son of Linga Settappa. However, she admitted that Smt.Pathri Basavva, who was the only daughter of Rudra Settappa, she was married to Mooga Basappa Setty and that the plaint schedule properties were owned by Mooga Basappa -7- Setty and Smt. Patri Basavva, who were issueless. She denied the fact that the plaintiff was taken in adoption by Mooga Basappa as stated in the plaint and that the adoption deed dated 16.06.1961 was executed in that behalf. It is stated that Mooga Basappa's father and defendants' great grandfather were brothers. She contended that the averment made in the plaint to the effect that misunderstanding arose between the adoptive parents and the genitive parents of the plaintiff due to cancellation of adoption deed by his adoptive parents and the fact that the plaintiff applied for mutation of records only after the death of Smt. Pathri Basavva, would indicate that registered adoption deed dated 16.06.1961 was not acted upon till 23.11.1993, the date on which Smt. Patri Basavva died. Hence, the claim of the plaintiff was barred by time. She further contended that the relationship between herself and Smt. Pathri Basavva was cordial and Smt. Pathri Basavva on her own volition, had executed the Will dated 23.08.1989 (mentioned as 03.08.1989 in the written statement) bequeathing the suit properties in favour of the minor defendants and same was valid and binding on the -8- plaintiff. She further stated that due to failure of rains in Malavi village, after 1995, herself and her husband left Malavi and settled in Chikkajayiganoorvillage for their livelihood. After the death of Smt.Pathri Basavva, she applied for change of mutation of the suit lands before the Tahasildar. She contended that the plaintiff instead of filing an appeal against the order of the Tahasildar, had filed the suit. Accordingly, she sought for dismissal of the suit and for grant of compensatory cost of Rs.1,000/- under Section 35(a) of the Civil Procedure Code, 1908.
2.6 Based on the aforesaid pleadings of the parties, the Court below framed the following issues:
"1. Whether plaintiff proves his ownership to suit schedule property as an Adopted son of couples Smt. Pathri Basavva & Mooga Basappa ?
2. Whether plaintiff further proves that his adoptive father Mooga Basappa is un-heard since 20 years?
3. Whether plaintiff proves his lawful possession to suit schedule properties and alleged illegal interference from defendants ?
4. Does plaintiff further prove the defendants illegally getting mutated the schedule -9- properties into his name through alleged Will dated 03.08.1989 ?
5. Whether suit of the plaintiff is barred by limitation as contended in written statement para No.8 ?
6. Whether plaintiff is entitle for the reliefs prayed?
7. For what order or decree ?"
2.7 On behalf of the plaintiff, he got examined himself as PW.1 and examined seven other witnesses as PWs.2 to 8 and he got marked the documents as per Exs.P1 to P22. Ex.P1 is the original adoption deed dated 16.06.1961. Ex.P2 is death certificate of Smt. Pathri Basavva. Ex.P3 is certified copy of cancellation deed dated 21.06.1962. Ex.P4 is certified copy of Will dated 23.08.1989 executed by Smt. Pathri Basavva. Exs.P5 to P20 are the RTC extracts in respect of the suit lands. Ex.P21 is tax paid receipt in respect of the house property of the plaintiff. Ex.P22 is the original order of Deputy Tahasildar dated 22.06.1994.
2.8 PW.1 - Sri Jagadeeshappa, in his examination-in- chief, has reiterated the averments made in the plaint. He
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stated that he took care of Smt. Pathri Basavva during her lifetime and was cultivating her lands and he had no knowledge of execution of the cancellation deed (Ex.P3) by Mooga Basappa Setty and Smt. Pathri Basavva to which deed his genitive parents were not parties. According to him, he came to know about the same when he applied for change of khata of the suit properties.
2.9 PW.2 - Venkobarao is the scribe of the adoption deed dated 16.06.1961 vide Ex.P1. He supported the case of the plaintiff that when he was aged about eight years, he was taken in adoption by Sri Mooga Basappa and Smt. Pathri Basavva in a ceremony that took place in the presence of about 20 persons. He had affixed his signature as a witness to Ex.P1. The suit schedule properties were in possession of the plaintiff.
2.10 PW.3, M.B. Basavanagowda, is witness to the adoption deed dated 16.06.1961. He has spoken about adoption of the plaintiff by Mooga Basappa and Smt. Pathri Basavva in a ceremony held in the presence of the elders of
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the village and execution of adoption deed vide Ex.P1 by the genitive parents of the plaintiff. He further stated that Mooga Basappa went missing from Mydooru village about 15 to 20 years next before the date of his examination-in-chief (witness examined on 04.12.2001). After the death of Smt. Pathri Basavva, the plaintiff was cultivating the suit lands.
2.11 PW.4 - Ninganagowda is the owner of the land, which is situate adjacent to the land of the plaintiff. He deposed that Mooga Basappa went missing from the village about 20 years next before the date of his examination-in- chief (witness examined on 04.12.2001). The plaintiff was cultivating the suit lands. It is elicited in his cross- examination that he had not furnished the survey number and the extent of his land, which was adjacent to suit lands.
2.12 PW.5 - Hanumanthappa is the owner of the land adjacent to the suit lands. He has deposed that the plaintiff was taken in adoption by Mooga Basappa and Smt. Pathri Basavva, who had no issues, about 40 years next before the date of his examination-in-chief (witness examined on
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04.12.2001). Mooga Basappa went missing since 20 years next before the date of his examination-in-chief. The plaintiff was cultivating the suit lands.
2.13 PWs.2 to 5 have consistently deposed that the plaintiff looked after Smt. Pathri Basavva during her lifetime and when she died, he had performed her obsequies.
2.14 PW.6 - Dyamanagowda is a witness to the adoption deed, Ex.P1. He has spoken about the adoption ceremony in which the plaintiff was taken in adoption by Mooga Basappa and Smt. Pathri Basavva. It is stated that Smt. Pathri Basavva had arranged feast on that occasion. The adoption deed was got registered two to three days after the adoption ceremony. He identified his signature at sl. No.15 in the list of witnesses to Ex.P1. He further deposed that the plaintiff took care of Smt. Pathri Basavva during her lifetime and was in possession and cultivation of the suit lands. The defendants at no point of time cultivated the suit lands.
2.15 PW.7 - Patel Basavanagowda is a witness to the adoption deed vide Ex.P1. He deposed that the plaintiff was
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adopted by Mooga Basappa and Smt. Pathri Basavva. The adoption deed was written by Venkoba Rao as per the instructions of Mooga Basappa and Smt. Pathri Basavva. He along with other 10 to 12 residents of Mydooru village had affixed their signatures to Ex.P1. In connection with the adoption ceremony, feast was arranged by the adoptive parents and genitive parents of the plaintiff. The plaintiff was taking care of Smt. Pathri Basavva during her lifetime and he was cultivating the suit lands. The witness identified his signature at Sl. No.20 on Ex.P1.
2.16 PW.8 - Smt. Annapoornavva is the genitive mother of the plaintiff. She deposed that Smt. Pathri Basavva and Sri Mooga Basappa, who were issueless, had approached her with a request to give her son in adoption to them for which she agreed. She has spoken about the adoption ceremony including giving of her son, the plaintiff, to Smt. Pathri Basavva and Sri Mooga Basappa in the presence of relatives and elders of the village and feast arranged in that behalf for the guests. She deposed that about two to three
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days after the adoption ceremony, Smt. Pathri Basavva and Mooga Basappa had got written the adoption deed in the Sub- Registrar's office at Harapanahalli. She further stated that PW.2 - Venkanna had written the adoption deed. She has identified her signature on Ex.P1 at Ex.P1(h). After the said adoption, the plaintiff lived with his adoptive parents and he was managing the properties of his adoptive family. The plaintiff took care of Smt. Pathri Basavva during her lifetime.
2.17 On behalf of the defendants, their mother, Smt.Rathnavva, was examined as DW.1 and she also examined three other witnesses as DWs.2 to 4 and got marked the documents as per Exs.D1 to D16. Ex.D1 is the original Will dated 23.08.1989 executed by Smt. Pathri Basavva. Ex.D2 is Krishi Pass book. Ex.D3 is patta book standing in the name of Smt. Pathri Basavva. Exs.D4 to 16 are certified copies of pahanis in respect of the suit lands.
2.18 DW.1 - Smt. Rathnamma / Smt. Rathanvva is the mother of defendant Nos.1 and 2. She has deposed that her grandfather and Sri Mooga Basappa were brothers. Her
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Husband, Ravindrappa, had expired. Mooga Basappa had gone missing and his whereabouts were not known. Smt. Pathri Basavva / Smt. Pathri Basamma died about nine years next before the date of her examination-in-chief (witness examined on 28.10.2002). Smt. Pathri Basavva during her lifetime had got executed the Will vide Ex.D1 about 13 years next before the date of her examination-in-chief. The said Will was got written in Veerabhadreshwara Temple in Harapanahalli and thereafter, it was got registered in the Sub-Registrar's office. She stated that Chinivalara Kotrappa and K. Maheshappa had affixed their signatures as witnesses to the Will. She further stated that she was taking care of Smt. Pathri Basavva during her lifetime and she was also managing the suit properties. She denied the fact that the plaintiff was the adopted son of Smt. Pathri Basavva and that he took care of her. She was in possession of the suit properties and pahanis in respect of the said properties stood in the name of their family.
2.19 DW.2 - Sri Kotrappa is a witness to the Will, Ex.D1. He has stated in his examination-in-chief that the husband of Smt. Rathnavva, namely, Sri Ravindrappa, was
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Smt. Pathri Basavva's uncle's son. The Will was got written by Smt. Pathri Basavva in Veerabhadreshwara temple in Harapanahalli. The contents of the Will was read over to Smt. Pathri Basavva. It is elicited in his cross-examination that there was cordial relationship between himself and the father of Smt. Rathnamma. Smt. Pathri Basavva had informed him about the Will about 3 to 4 months prior to the date when the Will was written. The Will was written by one Swami and stamp paper was purchased by Ravindrappa. Smt. Pathri Basavva was aged about 68 to 70 years at the time when the Will was written. The Will was written as per the instructions of Smt. Pathri Basavva. He did not know about Kotrappa and another witness and he met them when he came to Harapanahalli.
2.20 DW.3 - K.M. Mruthyunjayappa is the scribe of the Will vide Ex.D1. He stated that the said Will was written in Sri Veerabhadreshwara temple as per the instructions of Smt. Pathri Basavva. He read over the contents of the Will to Smt. Pathri Basavva and thereafter, he presented the said Will for registration in the Sub-Registrar's office. Sub-Registrar read
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over the contents of the Will to Smt. Pathri Basavva and thereafter, she affixed her thumb-mark to the Will. He further stated that he had identified the thumb mark of Smt. Pathri Basavva and had written shara / endorsement on the Will. Sri Kotrappa and Sri Maheshappa had affixed their signatures as witnesses to the said Will. Under the said Will, Smt. Pathri Basavva had bequeathed the properties mentioned therein in favour of the defendants.
2.21 DW.4 - Smt. Gangamma is the mother of DW.1 - Smt. Rathnavva and grandmother of the defendants. She stated that Smt. Pathri Basavva / Smt. Pathri Basamma and Mooga Basappa were her aunt and uncle respectively. Her native place was Mydooru and her matrimonial house was at Malavi. She did not know about the whereabouts of Mooga Basappa. Smt.Pathri Basavva had executed the Will, Ex.D1, bequeathing the suit properties in favour of the minor defendants, represented by their mother. Smt. Pathri Basavva was residing along with her. She was looking after the properties of Smt. Pathri Basavva when she was alive and after her death, herself and defendants were managing the
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said properties. The plaintiff neither during lifetime of Smt. Pathri Basavva nor after her death was in possession of the suit properties. The plaintiff did not take care of Smt. Pathri Basavva. She further stated that at the time of writing of Will, herself, her daughter, Smt. Rathnamma, her son-in-law Ravindrappa, and two witnesses viz., Kotrappa from Malavi and Maheshwarappa from Mydooru were present. Smt. Pathri Basavva had taken them to Harapanahalli. Sri Mruthyunjayappa was the scribe of the Will, Ex.D1 and he had written the Will as per the instructions of Smt. Pathri Basavva. Thereafter, the Will was presented before the Sub-Registrar's office for the purpose of registration. The Sub-Registrar read over the contents of the Will to Smt. Pathri Basavva, who after approving the same, affixed her thumb-mark to the Will. Maheshappa and Kotrappa had affixed their signatures as witnesses to the Will.
2.22 The Court below took up issue Nos.1 to 6 for consideration together. The Court below considering the evidence adduced by the plaintiff and his witnesses, PWs.2 to
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8, has observed that the plaintiff was given in adoption by his genitive parents, Jyothi Basappa and Smt. Annapoornavva to Sri Mooga Basappa and Smt. Pathri Basavva in a ceremony that took place in the native place of genitive parents of the plaintiff by following the customary and religious formalities and thereafter, the genitive parents of the plaintiff executed adoption deed, which was registered on 16.06.1961, vide Ex.P1. The Court below further observed that mere non- mentioning of the date in the adoption deed as to when the adoption ceremony took place did not imply that there was no ceremony to that effect and the evidence on record clearly indicated that the adoption ceremony was performed two or three days earlier to registration of the adoption deed and since the adoption deed vide Ex.P1 was a registered document, presumption arose under Section 16 of the Hindu Adoptions and Maintenance Act, 1956, with respect to performance of valid ceremony for adoption. Accordingly, the Court below held that the plaintiff had successfully proved that he was the adopted son of Sri Mooga Basappa Setty and Smt. Pathri Basavva.
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2.23 The Court below in the light of the provisions of Section 15 of the Hindu Adoptions and Maintenance Act, 1956, has held that the cancellation deed dated 21.06.1962 vide Ex.P3 executed by Sri Mooga Basappa and Smt. Pathri Basavva was not at all valid and the adoption of the plaintiff by Sri Mooga Basappa and Smt. Pathri Basavva by virtue of registered adoption deed dated 16.06.1961, Ex.P1, remained in-tact.
2.24 With regard to issue No.2 concerning Mooga Basappa, the Court below has observed that the evidence adduced by the plaintiff indicated that he had left Mydooru and his whereabouts were not known since more than twenty years next before the date of filing of the suit and the said fact was admitted by DW.1 - Smt. Rathnavva and DW.4 - Smt. Gangamma in their evidence and hence, presumption had to be drawn that he was no more.
2.25 With reference to issue No.3, the trial Court has held that the plaintiff has proved his possession in respect of
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the suit schedule properties and alleged interference from the defendants.
2.26 So far as issue No.4 concerning the execution of the Will dated 23.08.1989 vide Ex.D1 by Smt. Pathri Basavva bequeathing about 10 Acres (10 Acres 44 cents) in the suit schedule properties in favour of the defendants is concerned, the Court below has observed that both Smt. Pathri Basavva and the plaintiff had equal rights over the suit schedule properties i.e., they were entitled to 7½ Acres each in the suit schedule properties. The Court below opined that the bequest made by Smt. Pathri Basavva was not proper as she had no right beyond the extent of 7½ Acres in the suit properties.
2.27 With reference to issue No.5 dealing with the question of limitation, the defendants contended that since registered adoption deed dated 16.06.1961, Ex.P1, was subsequently cancelled by Sri Mooga Basappa and Smt. Pathri Basavva by executing cancellation deed dated 21.06.1962 vide Ex.P3, the plaintiff ought to have filed his suit for declaration within three years as per Article 57 of the
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Limitation Act, 1963. The Court below considering the material on record, has negatived the said contention of the defendants and held that the suit was filed within time as cause of action for the suit arose when the defendants infringed over the right of the plaintiff and when they got mutated the entries in the record of rights with respect to the suit schedule properties and the provisions of Articles 57 and 58 of the Limitation Act, 1963, were not applicable to the facts of the case.
2.28 Accordingly, the Court below answered issue Nos.1 to 4 in the affirmative, issue No.5 in the negative and issue No.6 as per the final order. The Court below, by its judgment dated 14.08.2003, decreed the suit of the plaintiff against the defendants by declaring the plaintiff as the owner in possession of the suit schedule properties by virtue of the adoption deed executed by Smt. Pathri Basavva and Mooga Basappa dated 16.06.1961 vide Ex.P1 and consequently, restraining the defendants from interfering with or causing an obstruction for the peaceful possession and enjoyment of the suit schedule properties by the plaintiff. Being aggrieved by
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the same, defendant Nos.1 and 2 in the suit have come up in this appeal.
3. This appeal was admitted on 16.11.2004. On that day, a coordinate Bench of this Court had stayed the judgment and decree of the Court below dated 14.08.2003 until further orders.
4. Today, this appeal is taken up for final hearing in the presence of learned counsel for the appellants as well as the contesting respondent.
5. Learned counsel for appellants contended that the adoption deed dated 16.06.1961 vide Ex.P1 relied upon by the plaintiff - respondent herein to prove that he is the adopted son of Sri Mooga Basappa and Smt. Pathri Basavva is not valid as it did not indicate as to whether actual ceremony of giving and taking of the child i.e., plaintiff was performed and also the date on which such ceremony took place. The Court below had not appreciated the adoption deed with reference to the legal provisions of the Hindu Adoptions and Maintenance Act,
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1956, which govern the adoption. The Court below failed to consider that about one year after the adoption of the plaintiff, Sri Mooga Basappa and Smt.Pathri Basavva had executed registered cancellation deed dated 21.06.1962 vide Ex.P3 in cancelling the earlier adoption deed dated 16.06.1961, Ex.P1.Having regard to the fact that Mooga Basappa had gone missing from Mydooru village about 20 years next before the date of filing of the suit, Smt. Pathri Basavva, who was admittedly the sole surviving member of her family, had inherited the suit schedule properties as its full owner and the Court below was not justified in coming to the conclusion that she had right only in respect of land to an extent of 7½ Acres in the suit properties and the Will executed by her bequeathing about 10 Acres (10 Acres 44 cents) in the suit schedule properties in favour of defendants, appellants herein, was not enforceable in law. Learned counsel further contended that the Court below had completely ignored the right of the adoptive family in disposing of the property standing in their name as provided under Section 13 of the said Act and proceeded to decree the suit of the plaintiff.
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6. During the course of his arguments, the learned counsel for the respondent referred to the affidavit dated 29.06.2018 filed by the respondent - Sri Jyothi Jagadishappa, the plaintiff in the suit, along with several documents as per Annexures 'A' to 'J' to the affidavit. The respondent - Jyothi Jagadishappa has stated in his affidavitthat during the pendency of this appeal, Sri Vishwanath / Jyothi Vishwanath, who is the younger brother of the first appellant, by impersonating himself as appellant No.1 - Jyothi Veeranna along with appellant No.2 - Jyothi Kotreshi had executed three separate registered sale deeds: (1) sale deed dated 04.03.2014, wherein land measuring 03 Acres 93 cents in Sy. No.354 situate in Mydooru village, Chigateri hobli, Harapanhalli Taluk, Davanagere village, was sold in favour of Sri Siddeshwara Gowda @ Siddesh for a sale consideration of Rs.2,76,000/-; (2) sale deed dated 04.03.2014, wherein two items of lands i.e., land bearing Sy. No.355/B measuring 01 Acre 39 cents and land bearing Sy. No.360/B measuring 94 cents were sold in favour of Sri Siddeshwaragowda for a sale consideration of Rs.1,64,000/- and (3) sale deed dated
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04.03.2014, wherein land measuring Sy. No.359/AB measuring 09 Acres 13 cents was sold in favour of Siddeshwaragowda for a sale consideration of Rs.6,40,000/-. The respondent contended that Smt. Pathri Basavva had bequeathed the land measuring to an extent of only 10 Acres 44 cents in favour of the appellants herein under the Will dated 23.08.1989 vide Ex.D1 and hence, suit schedule properties i.e., 15 Acres 39 cents could not have been conveyed in favour of Sri Siddeshwaragowda under the aforesaid three sale deeds, which are illegal and unsustainable in law.
7. In the said affidavit, the respondent - Jyothi Jagadishappa alleged that Sri Vishwanath had impersonated his brother, appellant No.1 - Jyothi Veeranna, and had forged his signature in the said sale deeds dated 04.03.2014. It is stated that Sri Vishwanath in collusion with Sri Siddeshwaragowda, Sri Jyothi Kotreshi and Smt. Rathnavva had executed the aforesaid three sale deeds. It is further stated that the respondent herein came to know about the
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said impersonation and forgery committed by Sri Vishwanath only on 29.09.2015 when appellant No.1 - Jyothi Veeranna filed an interlocutory application in I.A. No.10/2015 in the aforesaid suit in O.S. No.52/2014 filed by him.
8. The respondent has further stated in the said affidavit that he had filed a private complaint against Smt. Rathnavva, the mother of appellants herein, and Sri Siddeshwaragowda @ Siddesh as they had trespassed into his land. The jurisdictional Police after investigation had filed the chargesheet and the same was pending trial in the Court of Civil Judge (Sr. Dn.) and JMFC., Harapanahalli, in C.C. No.743/2014. The respondent had also filed P.C.R. No.15/2016 (old No.64/2014) in the Court of the Civil Judge (Sr. Dn.,) and JMFC., Harapanahalli, against Siddeshwaragowda alleging that he had committed theft of onions grown by him in about 9 Acres of land by trespassing into his land. It is stated that in the said case, order dated 01.10.2014 was passed by the trial Court for search and seizure of tractors involved in the theft of onions. Further, the respondent has referred to Writ petition in W.P.
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No.24172/2015, which is filed by Sri Siddeshwaragowda and is pending consideration before this Court.
9. The records would indicate that the respondent herein - Jyothi Jagadeeshappa filed the suit in O.S. No.52/2014 before the Court of Senior Civil Judge, Harapanahalli, for the relief of declaration that the nominal sale deeds dated 04.03.2014 executed by defendant Nos.2 and 3 in the said suit, namely, Veeranna @ Veeresh and Jyothi Kotreshi @ Kotresha, in favour of defendant No.1, Sri Siddeshwaragouda / Siddeshwara Gowda, were void and they were not binding on the plaintiff. He also sought for permanent injunction against the defendants, their agents, servants etc. restraining them from interfering with the peaceful possession and enjoyment of the suit schedule properties viz., lands bearing: Sy. No.354 measuring 3 Acres 93 cents; Sy. No.355B measuring 01 Acre 39 cents; Sy. No.360B measuring 94 cents and Sy. No.359AB measuring 09 Acres 13 cents situated in Myduru village, Davanagere, Harapanahalli District.
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10. In the said suit (O.S. No.52/2014), the plaintiff - Jyothi Jagadeeshappa alleged that defendant No.1 colluding with defendant Nos.2 and 3, got the nominal sale deeds executed in his favour on 04.03.2014. Defendant No.1 made an application for change of khata and though the plaintiff objected to the same, the revenue authorities changed the khata in the name of defendant No.1 -Siddeshwaragouda. Subsequently, the plaintiff preferred appeal before the Assistant Commissioner. The Assistant Commissioner stayed the mutation order passed by the Tahasildar. It is stated that the plaintiff had also filed a criminal case against the defendant in Crime No.53/2014 before Chigateri Police Station and the same was pending at enquiry stage.
11. It is seen that in the suit in O.S. No.52/2014, the Court of Senior Civil Judge and JMFC., Harapanahalli, by its order dated 25.11.2014, allowed I.A. No.1 filed by the plaintiff
- Jyothi Jagadeeshappa under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908, for temporary injunction against defendant No.1, Siddeshwaragouda, while dismissing the said application against defendant Nos.2 and 3 in the said suit.
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Accordingly, defendant No.1 was restrained from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiff. Being aggrieved by the same, Siddeshwaragowda preferred M.A. No.55/2014 before the Court of II Additional District and Sessions Judge, Davanagere. The said Court by its order dated 07.03.2015, dismissed the appeal filed by Siddeshwaragowda while confirming the order dated 25.11.2014 passed on I.A. No.1 in O.S. No.52/2014 without cost.
12. Siddeshwaragouda / Siddeshwara Gowda aggrieved by the order of the Court below dismissing his miscellaneous appeal,preferred W.P. No.24172/2015 seeking for issue of a writ of certiorari quashing the orders dated 25.11.2014 passed by the learned Senior Civil Judge and JMFC., Harapanahalli, on I.A. No.1 in O.S. No.52/2014 and the order dated 07.03.2015 passed by the learned II Additional District and Sessions Judge, Davanagere, in M.A. No.55/2014.
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13. In the said writ petition (W.P. No.24172/2015), on 15.06.2015, this Court ordered for issuance of emergent notice to the respondents returnable by 24.06.2015. The order sheet in the said writ petition would indicate that the matter was adjourned from time to time to enable the parties to settle the matter. The parties have not yet reported the settlement and the writ petition is pending consideration.
14. The material on record discloses that in the suit in O.S. No.52/2014, the second defendant - Sri Jyothi Veeranna, who is second appellant in this appeal, filed the said I.A. No.10/2015 under Section 340 of the Criminal Procedure Code, 1973, seeking legal action against seven persons viz., Sri Siddeshwaragowda, Sri Jyothi Kotresha, Smt. Jyothi Rathnamma, Sri Sangappa, Sri Marulusiddappa, Sri T. Chandrappa and Sri Jyothi Vishwanatha mentioned in the schedule to the said application. In the affidavit filed in support of I.A. No.10/2015, Jyothi Veeranna contended that he was not aware of the execution of sale deeds dated 04.03.2014 by his mother, Smt. Rathnamma / Smt. Rathnavva, and his brothers, Sri Jyothi Vishwanatha and Sri
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Jyothi Kotreshi, and the same were done behind his back by playing fraud on him and he had not agreed to sell the suit schedule properties.
15. Sri Siddeshwaragowda, defendant No.1 in O.S. No.52/2014, has filed objections to the said application in I.A. No.10/2015 inter alia stating that the judgment and decree passed by the Court below in O.S. No.225/2002 had been stayed by this Court. He is a bona fide purchaser of the suit schedule properties having purchased the same for a valuable sale consideration under three registered sale deeds of even date i.e., 04.03.2014. He has referred to the writ petition in W.P. No.24172/2015 filed by him before this Court against the order dated 07.03.2015 passed by the first appellate Court dismissing the miscellaneous appeal filed by him. He stated that Smt. Jyothi Rathnamma expressed her intention to sell the suit schedule properties for her bona fide necessity, and she introduced him to two persons identifying them as her children, Veeresh and Kotresh. Smt. Jyothi Rathnamma and her sons had received the entire sale consideration of Rs.10,80,000/- from him at the time of execution of the
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aforesaid registered sale deeds. After taking possession of the suit schedule properties, he had developed the same by investing more than Rs.5,00,000/-. In para XII of the objections statement, Sri Siddeshwaragowda stated that it was the mother of the appellants herein, Smt. Jyothi Rathnamma, and her children, who had committed the offence of impersonation and forgery. Hence, he sought to reject the application in I.A. No.10/2015 filed in O.S. No.52/2014.
16. In fact, in this Court during the pendency of this appeal, the first defendant in O.S. No.52/2014, Siddeshwaragowda, had appeared before the Court and admitted that he had purchased the entire extent of the suit schedule properties in O.S. No.225/2002. He admitted that he is a practicing Advocate at Harapanahalli. He also admitted that he was aware of the pendency of the suit in O.S. No.225/2002, which was disposed of by the Court below by judgment dated 14.08.2003. However, in spite of admitting that, he feigned ignorance with regard to the appeal being filed in R.F.A No.1484/2003. He also stated that he was in contact with his counsel and he was negotiating for settlement
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with Sri Jyothi Jagadeeshappa, the plaintiff in O.S. No.52/2014, and also the other defendants in the said suit. Thereafter, he did not come back. Thus, it is clear that the said Siddeshwaragowda, who is defendant No.1 in O.S. No.52/2014, is aware of the entire proceedings in the suit in O.S. No.225/2002, out of which the present appeal arises, and hence, he was present before this Court. His presence was identified by learned counsel, Sri G.S. Gurumath, appearing for the respondent herein. The said learned counsel also identified Sri Siddeshwaragowda as being a member of the same profession to which he belonged. It is seen that Sri Siddeshwaragowda even after coming to know of the proceedings pending before this Court is said to have purchased the suit schedule properties knowing fully well that one of the executants of the sale deeds, Sri Jyothi Vishwanath, had impersonated his elder brother, Jyothi Veeranna - appellant No.1 herein. With such knowledge, he had purchased the suit schedule properties. The conduct of Sri Siddeshwaragowda is highly deplorable and the matter is
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required to be referred to the Bar Council for taking action with reference to his professional misconduct.
17. Be that as it may, as stated above, there is criminal prosecution launched by Jyothi Veeranna (appellant No.1 herein) against his mother, Smt. Rathnamma / Smt. Rathnavva, his brothers, Jyothi Vishwanath and Jyothi Kotreshi (appellant No.2 herein) as well as against the said Siddeshwaragowda (defendant No.1 in O.S. No.52/2014) on the ground that theyhad conveyed the properties, which were the subject matter of the suit in O.S. No.225/2002, in favour of Sri Siddeshwaragowda in a clandestine manner. The said matter is pending consideration in I.A. No.10 of 2015 filed under Section 340 of the Cr.P.C., in O.S. No.52/2014. Defendant No.1 - Siddeshwaragowda, who filed objections to the said I.A. No.10/2015 has stated that the mother of the appellants herein, Smt. Jyothi Rathnamma, and her children, Jyothi Vishwanatha and Jyothi Kotreshi, had committed the offence of impersonation and forgery.
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18. In fact, it is really disturbing to notice that Sri Siddeshwaragowda, a practicing Advocate, being aware of the pending proceedings in this Court has ventured into purchase of the suit schedule properties in spite of the fact that decree had already been passed in favour of Sri Jyothi Jagadeeshappa, plaintiff in O.S. No.225/2002, who is subsequently pursuing another suit in O.S. No.52/2014 for cancellation of three sale deeds dated 04.03.2014 executed by Sri Jyothi Vishwanath, by impersonating himself as his brother, Jyothi Veeranna, and Jyothi Kotreshi in favour of Sri Siddeshwaragowda.
19. Now coming to the merits of the present appeal filed by appellant NOs.1 and 2, who are defendant Nos.1 and 2 in O.S. No.225/2002, it is not sustainable in its entirety i.e., insofar as it pertains to the right of the plaintiff - Jyothi Jagadeeshappa in respect of the suit schedule properties.
20. What is required to be considered in this appeal is whether the Court below was justified in decreeing the suit of the plaintiff in O.S. No.225/2002 in its entirety or the Court
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below should have restricted the right of the plaintiff only to the extent of his share in the suit schedule properties owing to the fact that the said properties are joint family properties and the adoptive mother of the plaintiff, Smt. Pathri Basavva, also had a subsisting right in the suit properties, which originally belonged to her husband, Mooga Basappa, who admittedly had gone missing from Mydooru since 20 years next before filing of the suit as is borne out from the evidence on record and who is presumed to be dead.
21. The records reveal that the plaintiff was taken in adoption by Sri Mooga Basappa and Smt. Pathri Basavva, who were issueless. The oral evidence adduced by the plaintiff and his witnesses, PWs.2 to 8, as well as the recital in the adoption deed, Ex.P1, indicate that the adoption ceremony was performed by following the religious and customary formalities including giving and taking of the plaintiff, who was then eight years old. Thereafter, the adoption deed vide Ex.P1was executed by the genitive parents of the plaintiff, Sri Basappa and Smt. Annapoornavva in favour of Sri Mooga Basappa and Smt. Pathri Basavva. The adoption deed, Ex.P1,
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was got registered in the Sub-Registrar's office, Harapanahalli, and as many as 27 persons had affixed their signatures as witnesses to the adoption deed. It is not in dispute that the plaintiff had continued his relationship with his genitive parents even after his adoption and there is nothing on record to demonstrate that he exclusively continued to live with his genitive parents. The finding of the Court below that the plaintiff had successfully proved that he was the adopted son of Sri Mooga Basappa and Smt. Pathri Basavva by virtue of adoption deed dated 16.06.1961 vide Ex.P1 appears to be just and proper.
22. Having regard to the provisions of Section 15 of the Hindu Adoptions and Maintenance Act, 1956, which stipulate that no adoption which had been validly made could be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth, it is clear that the cancellation deed dated 21.06.1962 vide Ex.P3 executed by Sri Mooga Basappa and Smt. Pathri Basavva cancelling registered adoption deed dated 16.06.1961 is not
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valid and unsustainable in law . As stated earlier, admittedly, Sri Mooga Basappa, the husband of Smt. Pathri Basavva, had gone missing from Mydooru village about 20 years next before filing of the suit and his whereabouts were not known and he is presumed to be dead.
23. In the fact situation, both Smt. Pathri Basavva, the adoptive mother of the plaintiff, and the plaintiff are entitled to half share each in the suit schedule properties, which totally measures 15 Acres 43 cents.
24. Now, coming to the registered Will dated 23.08.1989 executed by Smt. Pathri Basavva, the Court below has held that the said Will was executed under suspicious circumstances and Smt. Pathri Basavva could not have bequeathed an extent of 10 Acres (10 Acres 44 cents)in the suit schedule properties in favour of the defendants when she herself was entitled to an extent of only 7½ Acres of land in the suit properties.
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25. On re-appreciation of the evidence available on record, it is seen that Smt. Pathri Basavva was related to Smt. Rathnavva, the mother of the defendants, inasmuch as Smt. Rathnavva's grandfather and Sri Mooga Basappa were brothers. Smt. Pathri Basavva was hale and healthy and she was in a position to decide about the bequest, which she had made in favour of the minor defendants represented by their mother Smt. Rathnavva. The material on record does not point to any undue influence exerted either by Smt. Rathnavva or her husband, Sri Ravindrappa, on Smt. Pathri Basavva. Though there is inconsistency in the evidence of DWs.1 to 4, it cannot be held that the Will dated 23.08.1989 was not at all executed by Smt. Pathri Basavva vide Ex.D1, which is a registered document and hence, a presumption arises that it had been validly executed and the plaintiff in O.S. No.225/2002 has not produced satisfactory evidence to rebut the same. A perusal of the Will dated 23.08.1989, Ex.D1, discloses that the subject-matter of the Will are lands bearing: Sy. No.284 measuring 04 cents; Sy. No.354 measuring 3 Acres 94 cents; 355B measuring 01 Acre 39
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cents; Sy. No.360B measuring 94 cents and Sy. No.359AB measuring 04 Acres 13 cents (out of the total extent of 09 Acres 13 cents).
26. As could be seen from the records, though the adoptive family of the plaintiff was owning suit schedule properties measuring to an extent of 15 Acres 43 cents, Smt. Patri Basavva had executed the Will only to an extent of 10 Acres 44 cents. The question is as to whether she had the right to bequeath the said extent of 10 Acres 44 cents in favour of the defendants, appellants herein. Smt. Pathri Basavva was entitled to half share in the suit schedule properties and she could have executed the Will dated 23.08.1989 vide Ex.D1 only to the extent of 07 Acres 71½ cents and not beyond that and the Will dated 23.08.1989 executed by Smt.Pathri Basavva is required to be set aside in respect of the extent of land in excess of 07 Acres 71½ cents.
27. Therefore, the declaratory relief granted by the Court below in favour of the plaintiff - respondent herein could only be half share / 50% in respect of the suit schedule
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properties and unless that half share / 50% is determined in the final decree proceedings initiated by them for division of the suit properties, beneficiaries of the Will of Smt. Pathri Basavva namely, Jyothi Veeranna and Jyothi Kotreshi, who are appellants herein, had / have no right to sell the suit schedule properties either in favour of Siddeshwaragowda or any other person. Therefore, in this background, it is clear that three sale deeds of even date i.e., 04.03.2014 executed by defendant No.2 - Sri Jyothi Kotreshi and his younger brother, Jyothi Vishwanath, who had impersonated himself as appellant No.1 - Jyothi Veeranna, are not sustainable in the eye of law. Hence, the suit in O.S. No.52/2014 filed by the respondent herein - Sri Jyothi Veeranna is required to be decided by the Court of Senior Civil Judge and JMFC., Harapanahalli, by considering the aforesaid facts.
28. With such observations, the appeal is allowed in part. The judgment and decree passed by the Court below dated 14.08.2003 in O.S. No.225/2002 is modified by holding that the plaintiff - respondent herein and Smt. Pathri Basavva since deceased and represented by appellants herein are
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entitled to half share each in the suit schedule properties. The appellants herein, namely, Sri Jyothi Veeranna and Jyothi Kotreshi, are entitled to the benefit of bequest made in their favour by Smt. Patri Basavva under registered Will dated 23.08.1989 vide Ex.D1 only to the extent of 07 Acres 71½ cents in the suit schedule properties and the remaining bequest, which was made in their favour is without any authority or title being vested in Smt. Pathri Basavva and hence, the same would not enure to their benefit. The relief of permanent injunction granted by the Court below against defendants, appellants herein, is applicable only in respect of an extent of 7 Acres 71½ cents in the suit schedule properties.
29. The appellants herein and respondent herein are directed to get their respective portion in the suit schedule properties divided by approaching the Final Decree Proceedings Court. The FDP Court shall draw the final decree by identifying the share of the plaintiff, Jyothi Jagadeeshappa, to an extent of 50% in the suit schedule properties and that of Smt. Pathri Basavva to the remaining extent of 50%, which
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had fallen to the share of defendants, appellants herein, under registered Will dated 23.08.1989 vide Ex.D1.
30. While resting with this, liberty is reserved to the respondent, Sri Jyothi Jagadeeshappa, to file appropriate application in O.S. No.52/2014 before the Court of Civil Judge (Sr. Dn.), Harapanahalli, to initiate proceedings for prosecuting the defendants in the said suit, namely, Siddeshwaragouda / Siddeshwara Gowda, Veeranna and Jyothi Kotreshi @ Kotresha who had supported Siddeshwaragouda in getting the properties, which are the subject-matter of O.S. No.225/2002, registered in his name under the sale deeds dated 04.03.2014. The respondent herein is also permitted to file appropriate complaint against Siddeshwara Gowda, Advocate, for misusing his office as an Advocate to involve himself in an unrighteous litigation by getting the properties to an extent of 15 Acres 39 cents, which are subject-matter of the suit in O.S. No.225/2002, conveyed in his favour under three registered sale deeds dated 04.03.2014 executed by Sri Jyothi Vishwanath, who
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impersonated himself as appellant No.1 - Sri Jyothi Veeranna and forged his signature, and Jyothi Kotreshi even though the registered Will dated 23.08.1989 vide Ex.D1 executed by Smt. Pathri Basavva revealed that the defendants viz., Sri Jyothi Veeranna and Jyothi Kotreshi were entitled to only 10 Acres 44 cents in the suit properties.
Sd/-
JUDGE sma