Bangalore District Court
Smt. Yeshodamma vs Gowda Nayak on 24 November, 2022
1
O.S.No.6788/2014
KABC010190172014
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Prakash S. Helavar, B.Com., LL.M.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 24th day of November, 2022.
O S No. 6788/2014
PLAINTIFF :: Smt. Yeshodamma,
W/o. Late. G.Rangaswamy,
Aged about 60 years,
Residing at No.104, 33rd
Cross, Narasimhaswamy
Badavane,Nandini Layout,
Bangalore-560 096
(By Sri. C.R.G., Advocate)
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O.S.No.6788/2014
V/s.
DEFENDANTS :: 1. Gowda Nayak, S/o.
Chandra Nayak, Aged
about 53 years,
2. Smt. Taviramma, W/o.
Gowda Nayak, Aged about
47 years,
3. Kum. Sindura Nayaki,
D/o. Gowda Nayak,
Represented by her natural
guardian Gowda Nayak,
Aged about 11 years,
All are residing at No.66,
9th Main, 7th Cross,
Dwarakanagar,
Hosakerehalli, BSK 3rd
Stage, Bangalore-560 085
(By Sri. A.B.N., Advocate
for D-1 & 2, D-3 ex-parte)
Date of Institution of the Suit :: 04-09-2014
Nature of the Suit :: Declaration & Injunction
Date of commencement of
recording of evidence :: 30-05-2019
Date on which the Judgment
was pronounced. :: 22-11-2022
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O.S.No.6788/2014
Year/s Month/s Day/s
Total Duration :: 08 02 19
(Prakash S.Helavar),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGEMENT
The above numbered suit is filed by the plaintiff seeking the relief of declaration to declare that the Adoption Deed dated 13-03-2003 executed between Late. Sri. Rangaswamy and the defendants as null and void.
2. Brief facts of the plaintiff's case is in nutshell as under:-
It is pleaded by the plaintiff that one Sri. G.Rangaswamy S/o. Late. C.Muniyappa was the legally wedded husband of the plaintiff and out of their wedlock they got six daughters and two sons. It is further alleged that the plaintiff came 4 O.S.No.6788/2014 to know about the fact that her husband late Sri. G.Rangaswamy adopted the daughter of 1st and 2nd defendant i.e., 3rd defendant as his daughter by way of registered Adoption Deed dated 13-03-2003. The said fact of execution of registered Adoption Deed came to know to the plaintiff during the pendency of petition R.A.No.145/2013 before the Assistant Commissioner, Dodaballapura Sub-Division. It is pleaded that some people assaulted the husband of the plaintiff late Sri. G.Rangaswamy on 07-03-1997. The said assault made to her husband clearly indicated in wound certificate and medical bills, since from the date of the said assault, her husband was not in stable condition. During that period of time, the defendants playing fraud to defeat the rights of the plaintiff, created registered Adoption Deed on 13-03-2003. 5
O.S.No.6788/2014
3. It is further alleged that the husband of the plaintiff G.Rangaswamy has not taken the consent of the plaintiff to the adoption deed therefore, the plaintiff got the cause of action on 13-03-2003 and on 21-09-2013 filed the present suit seeking declaration to declare that the Adoption Deed dated 13-03-2003 as null and void. In view of the above said pleadings and allegations, the plaintiff sought for decretal of the suit.
4. The defendant No.1 & 2 entered their appearance through their counsel. One Mr. H.N.R., Advocate entered appearance for the minor defendant No.3. Later, in view of I.A.No.14 filed by the counsel for defendant No.3 on 25-11-2021, guardianship has been discharged and alter, the court guardian Sri. H.M.Ramesh, 6 O.S.No.6788/2014 Advocate has also been discharged. Later, suit summons were issued to the defendant. But she did not appear to the suit summons by way of RPAD. However, at later point of time, a paper publication was taken by the plaintiff, which was published in Samyuktha Karnataka newspaper. But the defendant No.3 not appeared and thus, she placed ex-parte.
5. The defendant No.1 & 2 jointly filed the written-statement by resisting the plaint averments contending that the suit is not maintainable and liable to be dismissed with exemplary cost. The said defendant No.1 & 2 contended that the suit is barred by law of limitation. Because, the registered Adoption Deed was executed on 13-03-2003, which was very much within the knowledge of the plaintiff. The 7 O.S.No.6788/2014 present defendant No.1 & 2 are not parties to the proceedings in R.A.No.145/2013 therefore, the question of production of Adoption Deed before the said office does not arise. The plaintiff in order to bring the suit has made allegations in respect of all the said fact just to overcome the limitation. The plaint does not disclose the cause of action. The suit is hit by Article 57 of Limitation Act and even as per Section 34 of the Indian Specific Relief Act. It is also contended that the plaintiff has built up a false story to bring the suit. The defendant No.1 & 2 are not aware about the assault to Sri. G.Rangaswamy. On the contrary, the said G.Rangaswamy was in state of mind on the date of execution of Adoption Deed dated 13-03-2003. In view of the above said contentions, the defendant No.1 & 2 sought for dismissal of suit.
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O.S.No.6788/2014
6. The Court Guardian for the defendant No.3 also filed written statement denying the plaint averments. He contends that the averments made in Adoption Deed dated 13-03-2003 are true and correct. It is contended that Late. Sri. G.Rangaswamy legally adopted the defendant No.3 by way of registered Adoption Deed and the defendant No.,3 was 11 days baby on the date of said registered Adoption Deed. So, the defendant No.3 is the legally adopted daughter of late Sri.G.Rangaswamy. Thus, she has derived every right in the movable and immovable property of late Sri. G.Rangaswamy. There is no cause of action for the suit. In view of the above said contentions, the Court Guardian of the defendant No.3 sought for dismissal of the suit with exemplary cost.
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O.S.No.6788/2014
7. On the basis of pleadings of the parties, my learned predecessor had framed the following issues.
1. Whether the plaintiff proves that the Adoption Deed dated 30-03-2003 executed by defendant No.1 and 2 in favour of her husband adopting the defendant No.3 is null and void ?
2. Whether the plaintiff is entitled for the reliefs as prayed ?
3. What order or decree ?
ADDL.ISSUE :
1. Whether the suit of the plaintiff is barred by law of limitation and hence, not maintainable ?
8. The plaintiff has deposed as PW-1 and relied upon the 17 documents marked at Ex.P-1 to P-17 and closed her side.10
O.S.No.6788/2014
9. On the other hand, the defendant No.1 deposed as DW-1 and he relied upon one document marked at Ex.D-1 and closed his side.
10. I have heard the arguments from the learned counsel for plaintiff and perused the records. No argument is canvassed by the learned counsel for the defendants.
11. I propose to answer to the above said issues are as follows:
ISSUE No.1 :: In the affirmative
ISSUE No.2 :: Partly in the affirmative
Addl.ISSUE No.1 :: In the negative
ISSUE No.3 :: As per final order for the
following:-
REASONS
12. ISSUE NO.1 :: It is stated by the plaintiff in her oral evidence that she is the legally 11 O.S.No.6788/2014 wedded wife of G.Rangaswamy S/o. C.Muniyappa and out of their wedlock they have begotten six daughters and two sons. It is further stated by her that she came to know from the Adoption Deed dated 13-03-2013 produced by the respondents in R.A.146/2013 pending before the Assistant Commissioner, Doddaballapura Sub- Division that her husband late Sri. G.Rangaswamy adopted the 3rd defendant of this case, who is the daughter of defendant No.1 & 2.
13. It is also stated by her that her husband late G.Rangaswamy was subjected to assault on 07-03-1997 by some people. From the said date, he was not in conscious and not stable therefore, the defendants by playing fraud upon him cooked up the registered Adoption Deed dated 13-03-2003. It is also stated by her that her 12 O.S.No.6788/2014 husband G.Rangaswamy has not taken her consent for the said adoption therefore, the said Adoption Deed is to be declared as null and void. 14. On the other hand, defendant No.1 & 2 denied the case of plaintiff by way of written statement and even the advocate, who was appointed as a Court Guardian for defendant No.3 also denied the case of the plaintiff by filing written-statement. It appears from the records that defendant No.3 attained majority during the pendency of the suit and thus, suit summons has been issued to her. She did not appear and hence, remained as unrepresented.
15. The defendant No.1 has deposed stating that late. G.Rangaswamy executed registered Adoption Deed dated 13-03-2003 and thereby adopted his daughter defendant No.3 and he is 13 O.S.No.6788/2014 not aware whether the plaintiff is the legally wedded wife of late G.Rangaswamy or not. He has also stated that he is not aware whether the plaintiff has six daughters and two sons. He has denied that the plaintiff came to know about the registered Adoption Deed dated 13-03-2013 when she obtained certified copy of the said document produced in R.A.145/2013. Further, he has deposed that he has recently come to know that the plaintiff and her children filed O.S.No.4682/2012 against Smt. Champakavathi and others for cancellation of the marriage dated 01-06-1985 between Champakavathi and late G.Rangaswamy.
16. So, upon perusal of oral evidence of the parties it appears that according to the plaintiff, without her consent the said adoption has been 14 O.S.No.6788/2014 taken place therefore, it cannot be held it is a valid document. On the other hand, the defendant No.1 states that he is not aware that the plaintiff has six daughters and two sons and also he is not aware that the plaintiff is the wife of G. Rangaswamy. In this back drop of the matter, it is necessary to reproduce Section 7 of the Hindu Adoptions and Maintenance Act, 1956 and it reads thus;
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.15
O.S.No.6788/2014
17. The above said provision of law makes it very clear that any male Hindu who is of sound mind having the capacity can take a son or a daughter in adoption: But if he is having wife living, under such circumstances, he shall not adopt except with the consent of his wife. In case, his wife has completely and finally renounced the world or has been ceased to be a Hindu or she has been declared by a competent court as she is unsound mind, in that circumstances,the consent of the said wife is not necessary.
18. In the present case, the defendants have not made out any case that what prevented them in not taking the consent of the plaintiff and also no case is made out that what are the ceremonies have been taken place on the said 16 O.S.No.6788/2014 date of adoption deed or even prior to the said adoption. As can be seen from the said Adoption Deed at Ex.P-17, which is in certified copy produced by the plaintiff. It makes clear that nowhere it is recited in respect of living wife of late G.Rangaswamy or anything else. The said document is totally bald. Because, only the recital has been stated that Sri. G.Rangaswamy is the first party and the present defendant No.1 & 2 are the second party. Whereas, the first party has no son or daughter hence, he wants to adopt a daughter. Therefore, both defendant No.1 & 2 adopted their daughter present defendant No.3, who was 11 days baby on that day. Therefore, the first party has agreed that he would treat and maintain the present defendant No.3 as his own child by providing all the facilities such as, education, marriage when the child attains 17 O.S.No.6788/2014 majority and so on. The said defendant No.3 shall have all the rights over the movable and immovable properties of the 1st party. The said document has not been denied by the defendants and also they have not produced the original adoption deed.
19. The document produced by the plaintiff at Ex.P-1 certified copy of Genealogical Tree goes to show that the late Rangaswamy and present plaintiff have begotten six daughters and two sons. No doubt, in the course of cross- examination, the PW-1 states that as per her instructions the Ex.P-1 has been prepared. But the documents at Ex.P-5 to P-10 certified copies of identity cards of the said children of plaintiff including Ex.P-11 clearly go to show that the said persons are children of late Rangaswamy and 18 O.S.No.6788/2014 present plaintiff. As against these documents, no rebuttal has been placed by the defendants. So, it is evident from the records that late G.Rangaswamy and present plaintiff begotten six daughters and two sons out of their wedlock. But the said aspect has not been either denied by the defendants or explained what was the difficulty in non mentioning the said facts,even about the existence of present plaintiff in the deed of adoption.
20. It is evident from the Ex.P-2 certified copy of Marriage Invitation Card that o late G.Rangaswamy and the present plaintiff have contacted marriage. As against this document, no rebuttal is placed and no doubt, in this regard, there is a cross-examination to the PW-1 contending that the said kind of document can be 19 O.S.No.6788/2014 got prepared anywhere. It may be true that the said kind of document can be prepared and got printed. But unless the strong rebuttal is placed, the said document cannot be held as it is cooked up. Further, as can be seen from the cross- examination of PW-1, no worthwhile has been extracted to disbelieve the case made out by her.
21. On the contrary, the DW-1 during his cross-examination states that late Rangaswamy was his landlord and he was residing in his rental house. He states that he does not know the wife and children of late G.Rangaswamy. If at all the evidence of DW-1 is taken to be true that he was working under the late Rangaswamy, then certainly he must be aware about the family members of late G.Rangaswamy. Therefore, the said evidence cannot be believed. However, he 20 O.S.No.6788/2014 states that he does not know in whose custody the said defendant No.3 is continued after adoption. He further states that he has not seen the said child and also he states that he does not know as to whether the said Rangaswamy is alive. If this particular evidence is taken into consideration, it appears quite astonishing, since he has adopted his daughter to the late G.Rangaswamy and that be the case, he must be aware about the Rangaswamy and his family and even subsequent to the so called adoption.
22. In my opinion, no parents will be ignorant while adopting their own child to any person and even after the adoption. Herein the case, wherein, the defendant No.1 & 2 neither relative to late G.Rangaswamy nor hailing from same community. Moreover, it is evident from 21 O.S.No.6788/2014 the very testimony of DW-1 in the cross- examination that he is totally unaware about the family members of G.Rangaswamy. He states that within four months he vacated the house of Rangaswamy and went to his native place. His native place is Kuppam of Andhra Pradesh. If this evidence is evaluated, it can be stated that such a stranger how he could able to adopt his child, that too 11 days old child to the stranger.
23. As I stated supra, there is no case being made by the defendants about the ceremony of adoption and even no independent witness has been examined to prove the so called adoption. Merely because, Adoption Deed is registered it does not mean that the defendant No.3 was given in adoption to Late Sri. Rangaswamy. It is pertinent to note that, the available records 22 O.S.No.6788/2014 clearly go to show that the present plaintiff is the wife of late Sri. G.Rangaswamy and both begotten totally 8 children and such being the fact, without the consent of the present plaintiff so called adoption cannot be completed. Hence, in this regard, the argument of the learned counsel for the plaintiff that the Adoption Deed dated 13-03-2003 is hit by Section 7 of the Hindu Adoptions and Maintenance Act, 1956 has to be accepted, since his argument is supported by the judgment of Hon'ble Supreme Court of India reported in (2011) 2 Supreme Court Cases 298 in the case of Ghisalal Vs.Dhapubai (Dead) by his LRs and others and also supported by the Judgment of Hon'ble High Court of Karnataka reported in ILR 2004 KAR 3611 in the case of Siddaramappa and Others Vs. Smt. Gouravva. On the other hand, I find no reasons to accept the 23 O.S.No.6788/2014 case of the defendants. Hence, I view of the above said reasons, I am inclined to answer Issue No.1 in the Affirmative.
24. ADDl. ISSUE NO.1 :: The plaintiff states that for the first time she came to know about the adoption deed from the proceedings in RA 145/2013 pending before the Assistant Commissioner, Doddaballapura Sub-Division. Therefore, she applied for certified copy of the adoption deed and she got the cause of action on 13-03-2003 and on 21-09-2013 so, she filed the present suit. In this regard, the learned counsel for the defendants tried to elicit from the mouth of PW-1 during the cross-examination contending that the execution of adoption deed came to her knowledge when it was registered, but the said suggestion has been denied by her. 24
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25. It is the case of the defendants that they are not at all party to the said R.A.No.145/2013 proceedings before the Assistant Commissioner. Therefore, the question of production of the said document does not arise hence, the plaintiff has created a false story. In this connection, the plaintiff has relied upon the documents at Ex.P-15 & 16 certified copy of order passed in RA 145/2013 by the Tahasildar, Doddaballapura Sub-Division, at Bangalore in the petition filed under Section 136(2) of Land Revenue Act. Ex.P-16 is the order passed by the Executive Magistrate, Doddaballapura wherein, it is seen that as per the list of document dated 10- 10-2012 the copy of adoption deed at Sl.No.6 has been produced. The said litigations were between one Smt. Champakavathi and the present plaintiff. The said Smt. Champakavathi claiming 25 O.S.No.6788/2014 to be the wife of G.Rangaswamy and subsequently, the present plaintiff filed OS No.4682/2012 along with her children against Smt. Champakavathi and others, which can be seen at Ex.P-20 for declaration and perpetual injunction and the said suit came to be decreed declaring that the Gift Deed dated 28-01-2012 executed by late G.Rangaswamy in favour of the said Smt. M.Champakavathi and one Sri. Kumaraswamy has been cancelled and also marriage dated 01-06-1985 between Smt. Champakavathi and late Rangaswamy has been declared as null and void.
26. So, these documents clearly supported the case of the plaintiff, since the document at Ex.P-17 certified copy of the adoption deed indicates that the said certified copy has been 26 O.S.No.6788/2014 obtained by the plaintiff on 22-02-2014. Therefore, if the said date is taken into consideration certainly, the suit falls within the provision of Second limb of article 57 of the Limitation Act. Hence, it is opined that the plaintiff successfully established that she came to know about the adoption deed from the proceedings in RA 145/2013 and immediately within three years from the date of said knowledge, she has filed the present suit. Therefore, in my opinion the suit is well within time and thus, case of the defendants that the suit is barred by limitation does not stand for consideration. Accordingly, in view of the above said reasons, I am inclined to answer Addl. Issue No.1 in the negative.
27. ISSUE NO.2 :: The plaintiff sought a declaration to declare that the Adoption Deed 27 O.S.No.6788/2014 dated 13-03-2013 executed between late G.Rangaswamy and defendants is null and void. While assigning reasons to Issue No.1, I have come to the conclusion that the plaintiff has successfully established her case with oral and documentary evidence and under such circumstances, the plaintiff is entitled for the relief of declaration. But I find no reasons to grant any cost of the suit. Therefore, I am inclined to answer Issue No.2 partly in the affirmative.
28. ISSUE NO.3 :: In view of my findings on Issue No.1 & 2 and Addl.Issue No.1, I proceed to pass the following;
ORDER The suit filed by the plaintiff is decreed.
Therefore, it is declared that the 28 O.S.No.6788/2014 registered Adoption Deed dated 13-03-2013 executed between late. Sri. G.Rangaswamy and defendants is null and void.
No order as to cost.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 24 th day of November, 2022.) (Prakash S. Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) PLAINTIFF'S SIDE ::
PW-1 :: Smt. Yeshodamma
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(B) DEFENDANTS SIDE ::
DW-1 :: Gowda Nayak
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) PLAINTIFF'S SIDE :
Ex.P-1 :: Copy of the Genealogical tree Ex.P-2 :: Copy of the Wedding Card Ex.P-3 to Ex.P-10 :: 8 copies of the Identity Cards Ex.P-11 :: Copy of the Passport Ex.P-12 :: Copy of the Wound Certificate Ex.P-13 :: Copy of Hospital Bill Ex.P-14 :: Copy of the Death Certificate Ex.P-15 :: Copy of Revenue Appeal in R.A.145/2012-13 Ex.P-16 :: Copy of the order of Tahasildar, Doddaballapura Ex.P-17 :: Certified copy of Registered Adoption Deed dated 13-03-2003 Ex.P-18 :: Copy of the order sheet in RA No.145/2012-13 Ex.P-19 :: Copy of the vakalath Ex.P-20 & :: Copy of judgment and decree in 30 O.S.No.6788/2014 Ex.P-21 O.S.No.4682/2012 (B) DEFENDANTS SIDE :
Ex.D-1 :: Certified copy of the plaint in O.S.No.4682/2012 (Prakash S.Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.