Karnataka High Court
V Shankara Rao vs V Eswara Rao on 10 July, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1334 OF 2010
BETWEEN:
V. Shankara Rao,
Aged about 47 years,
Son of Late Venkoba Rao,
Residing at Dodda Ganjur Post,
Chintamani Taluk,
Kolar District.
Pin Code: 563 125. ... APPELLANT
(By Shri. G.L. Vishwantah, Advocate)
AND:
1. V. Eswara Rao,
Aged about 52 years,
Son of Late Venkoba Rao,
2. Smt. Sumithra Bai,
Aged about 39 years,
Wife of Late Narayana Rao,
3. V. Shivaji Rao,
Aged about 45 years,
2
Son of Late Venkoba Rao,
4. Krishnoji Rao,
Aged about 42 years,
Son of Late Venkoba Rao,
Respondent Nos. 1 to 4 are
Residing at No.78/3B,
Lottegollahalli,
RMV II Stage,
Bangalore - 560 094.
5. Janaki Bai,
Aged about 84 years,
Wife of Late Venkoba Rao,
Residing at No.65,
Lottegollahalli,
RMV II Stage,
Bangalore - 560 094.
6. G. Harish,
Aged about 28 years,
Son of B.M.Govindaraju,
Residing at No.208,
5th Cross, Ganesh Saw Mill Road,
T. Dasarahalli,
Bangalore - 560 057. ...RESPONDENTS
(By Shri. P. Raju, Advocate for M/s. P. Raju and company)
*****
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgement and decree
dated 5.4.2010 passed in O.S.No.6761/2007 on the file of the
3
XXXVIII Additional City Civil Judge, Bangalore, dismissing the
suit for partition, separate possession and declaration.
This Regular First Appeal having been heard and reserved
on 04.07.2013 and coming on for pronouncement of Judgment
this day, the Court delivered the following:-
JUDGMENT
This is a plaintiff's first appeal. The plaintiff's suit was for partition and separate possession of his 1/6th share in the suit schedule property. The plaintiff also sought the relief of declaration in respect of a sale deed executed by defendants 1 to 5 in favour of defendant no. 6, and to declare that it did not bind him. The defendants 1 to 4 were the brothers and sister of the plaintiff and defendant no.5 was his mother. Defendant no.6 was the purchaser of the suit property. The suit schedule property was a house bearing No.65, built on part of land in Survey No.1/2 of Lottegollahalli, Bangalore north taluk, measuring about 60 feet by 40 feet. The suit property had been sold by defendants 1 to 5 in favour of defendant no. 6 under a registered sale deed dated 29.6.2006.
4
2. It was the plaintiff's case that the suit property was purchased by his father under a sale deed dated 13.4.1977. He had died intestate. The plaintiff and defendants 1 to 5 succeeded to his estate and were thus entitled to 1/6th share each, in the suit property. As the same had been sold excluding him, the sale deed was not binding on him. The plaintiff had filed the suit immediately on learning about the transaction.
3. The suit was contested by the defendants. Defendants 1 to 5 in their written statement contended, that it was true that the plaintiff was the son of late Venkoba Rao. But when the plaintiff was eight months old he had been given in adoption to Shyam Rao and Manu Bai. The latter was the maternal aunt of the plaintiff and defendants 1 to 4 and the sister of defendant no.5. She had no children of her own. The plaintiff had lived with his adoptive parents at Doddaganjur throughout his life and had ceased to be a member of the defendants' family. The plaintiff was married and had settled down at the very place. He had inherited extensive 5 properties of his adoptive parents on their death. It was hence denied that the plaintiff had any claim over the suit property. It was claimed that the property had been sold for a legal necessity.
4. Defendant no.6 had reiterated the contentions urged by defendants 1 to 5 .
5. On the above pleadings the trial court had framed the following issues :
1. Whether the plaintiff proves that the suit property is joint family property consisting of himself and defendant nos.1 to 5?
2. Whether plaintiff proves that he is entitled to a share in the suit property, and if so to what share?
3. Whether defendant Nos. 1 to 5 prove that plaintiff has gone in adoption to Smt. Manubai and Sri Shamrao, hence, he ceases to be the member of their joint family?
4. Whether plaintiff is entitled to the relief sought for?"6
The trial court has answered Issues no.1,2 and 4 in the negative and Issue no.3 in the affirmative and has dismissed the suit with costs. It is that which is under challenge in the present appeal.
6. The learned counsel for the appellant contends that having regard to the defence pleaded as against the admitted fact that he was the son of Late Venkoba Rao, was that he had been given in adoption, at the age of eight. And that he became the adopted son of Shama Rao and Manu Bai. It is emphasized that one of the requirements of a valid adoption as prescribed under Section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 (Hereinafter referred to as the 'HAM Act', for brevity), is that there should be proof of actual giving and taking of the adopted child with intent to transfer the child from the family of its birth to the family of adoption. The physical act of giving and taking is 7 absolutely necessary for the validity of adoption. It is pointed out that there is no documentary proof of any such adoption.
There was no evidence at all to show that the plaintiff was actually handed over in adoption by his parents to Manu Bai and Shyam Rao. They were no more. The only competent person who was alive at the time of the trial and was competent to speak about the adoption was the plaintiff's mother. She had not entered the witness box . Therefore , it could not be said that adoption had been proved.
It is pointed out that the first defendant had sought to tender evidence of the plaintiff's adoption. He was two years older than the plaintiff. As it was claimed that the plaintiff had been given in adoption when he was eight months old, he had candidly admitted that he did not know when the adoption had taken place.
It is further pointed out that the court below had overlooked two important circumstances. The wedding invitation card relating to the plaintiff's wedding had been produced and marked in evidence and it was not disputed. The card described the 8 plaintiff as the elder son of Venkoba Rao, this was as late as 1.5.1980. This clearly established his status.
The next circumstance was that on 24.8.1984, Venkoba Rao and his sons, including the plaintiff had sold an item of property, which the father had obtained at a partition.
It is contended that though the court below had taken note of these two pertinent circumstances, it had erroneously accepted the specious argument canvassed that since both his adoptive parents were dead on the date of his marriage, his natural father's name had been indicated. And secondly, in so far as the plaintiff having joined the sale transaction along with his natural father and his brothers was only to reassure the purchaser that there would be no claim set up by the plaintiff in respect of the said property on account of his being the natural born son of Venkoba Rao. This, according to the counsel for the plaintiff, was wholly unfair and the trial court was not justified in negating the above circumstances, which clearly contradicted the theory of adoption. 9
It is also contended that Manu Bai having survived her husband, had bequeathed several items of landed property and a house in favour of the plaintiff under a registered will dated 31.3.1980. It is pointed out that if the said properties originally belonged to Shama Rao, the adoptive father of the plaintiff, he would have succeeded to his legitimate share of the property, as a Class -I heir . The trial court hence could not have considered the above testamentary succession as a factor of proof of the alleged adoption.
It is hence contended that the burden of establishing the factum of adoption was on the defendants and the same cannot be said to have been discharged, in the above facts and circumstances. On the other hand there is no dispute that the sale deed in respect of the suit property had been executed, without the plaintiff being a party to the same, and in the face of the undisputed relationship of the parties, the suit ought to be decreed. 10 The learned counsel for the appellant has relied on a large number of authorities in support of the case of the plaintiff.
7. The learned counsel for defendant no.6 who has contested this appeal seeks to justify the judgment of the trial court.
8. In the light of the above contentions, the primary question to be answered is, whether the plaintiff was disentitled to the suit reliefs on account of the plaintiff having been given in adoption. And whether in the eye of law such adoption stood established.
While it cannot be denied that one of the essential requirements of establishing a valid adoption is the factum of giving and taking in adoption, in terms of Section 11(vi) of the HAM Act, and the several decisions of the apex court emphasizing the rigour of the provision, and that the burden of proof in this regard is on a person seeking to plead adoption, the 11 lack of proof of such "giving and taking" in adoption, in the present case on hand, needs to be reconciled with candid admission of various circumstances pointing to the plaintiff having been adopted.
The fact of adoption must be proved in the same way as any other fact. There are no special rules of evidence to establish an adoption.
In the present case on hand, it was not the appellant who was seeking to prove that he had been adopted. On the other hand, it was his case that he was never given in adoption and he continued to be a member of his natural family. The several authorities referred to by the Counsel for the appellant emphasize that giving and receiving are absolutely necessary to the validity of an adoption. They are the operative part of the ceremony,being that part of it, which transfers the child from one family to another. As stated by the apex court, in Y.Debi Prasad vs. Tribeni Devi, 1970(1) SCC 677, that the Hindu law however does 12 not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption and that the child shall be handed over and taken for this purpose. It is also to be noticed that the several authorities relied upon by the learned Counsel for the appellant, were all cases in which the endeavour was to establish that there was adoption by the very person claiming to have been adopted. Whereas it is the reverse in the present case on hand. Admittedly, the appellant had lived with his maternal aunt and her husband, who are said to be his adoptive parents, from when he was 8 months old till their death and he continued to live in their house even at the time of filing the suit. He was 44 as on the date of suit. In this regard, it is also to be kept in view the admitted conduct of the plaintiff and the observations of the Supreme Court in Debi Prasad, supra, in case of ancient transactions as follows:
13
"10. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well."14
In the present case on hand, it is also highlighted that the natural mother of the appellant was alive and that she had not been examined to prove the giving and taking of adoption. In the opinion of this court, this would pale into insignificance having regard to the following statements made by the plaintiff in his cross-examination:
"Since 50 years I am residing in my address shown in cause title of plaint. I have studied at Doddaganjur in Chintamani Taluk, my marriage also took place at Doddaganjur in Chintamani Taluk. It is true to suggest that my name is included in the Voters List of Doddaganjur village. Ration Card has been issued to me on the address shown in the cause title of Plaint. It is true to suggest that I am owning a house in Doddganjur. I have myself constructed the house. The open space on which I have constructed house was earlier standing in the name of my aunt Smt.Manu Bai. It is true to suggest that Smt.Manu Bai was sister of my mother Smt.Janaki Bai. It is true to suggest that Sri.Shamarao is husband of Smt. Manu Bai. It is true to suggest that Smt.Manu Bai and Sri Shamarao had no issues. It is true to suggest that Sri Manu Bai and Shamarao have took me in adoption. (emphasis supplied) 15 It is true to suggest that after 10 years after Smt.Manu Bai and Sri Shamarao took me in adoption a daughter by name Janabai was born to them. It is true to suggest that Smt.Manu Bai and Sri Shamarao was performed marriage of their daughter and given a separate land to her. It is true to suggest that Smt.Manu Bai and Sri Shamarao have given their remaining properties to me.
It is true to suggest that after the death of Smt.Manu Bai, the land in Sy.No.272,286, 93 of Doddaganjur village which were earlier standing in the name of Smt.Manu Bai were came to be mutated in my name. It is true to suggest that the landed and house property belonged to Smt.Manu bai and Sri Shamarao are in my possession and enjoyment. When Smt.Manu bai and Sri Shamarao took in adoption my father was alive.
It is false to suggest that I am not entitled to share in the suit property. My genetic father had died in 1990. During lifetime of my father, I have not asked him to give a share in the properties belonging to them."
In the face of the above categorical admissions and the attendant circumstances, which clearly establish that the appellant was adopted by Manu Bai and Shama Rao and hence, he could not 16 claim any right under his natural father, the trial court has rightly dismissed the suit of the appellant.
The appeal stands dismissed.
Sd/-
JUDGE nv*