Bangalore District Court
Mr.Jayamuni M vs Mrs.Shashikala Jayaram on 31 August, 2019
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 31st day of August, 2019
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.3397/2014
Plaintiff: Mr.Jayamuni M.,
S/o.Muninanjappa,
Aged about 60 years,
R/at No.426, 'Vatsalya',
Gandhiji Road,
Munnikalappa Layout,
Ramamurthynagar,
Bengaluru-560 016.
Since deceased represented
By his legal heirs:
1(a). Mrs.Gowramma.N,
W/o late Jayamuni, M,
Aged about 56 years,
R/at No.426, 'Vatsalya',
Gandhji Road,
Munnikalappa Layout,
Ramamurthynagar,
Bangalore-560 016.
1(b). Mr.Gopinath, J,
S/o late Jayamuni. M
Aged about 36 years,
R/at No.82, 5th Main
Road, 12th Cross, Duo
Marvel layout,
Ananthapura,
Yelahanka,Bangalore-64.
2 O.S.No.3397/2014
1(c). Mr.Chandrashekar.J.
S/o late Jayamuni. M
R/at No.4,'Kogulan Nivas',
Chandrama Layout,
Doddabanasawadi,
Bangalore-560 043.
(By Sri J.Hudson Samuel A, Advocate.)
/VS/
Defendants: 1. Mrs.Shashikala Jayaram,
W/o Mr.Jayaram, Hosakote
Kodi,Virognagar Post,
Bangalore East Taluk,
Bengaluru-560 049.
2. Mrs.Yashoda,
W/o.Late Mr.Narendra Kumar,
Aged about 56 years,
R/o at No.68, New No.140,
6th Cross, Kadrrappa Road,
Doddakunte Cox Town,
Bengaluru-560 005.
3. Mrs.Shalini,
D/o Late Mr.Narendra Kumar,
Aged about 35 years,
R/o at No.68, New No.140,
6th Cross, Kadrrappa Road,
Doddakunte Cox Town,
Bengaluru-560 005.
4. Mr.Raghavendra,
S/o Late Mr.Narendra Kumar,
Aged about 33 years,
R/o at No.68, New No.140,
6th Cross, Kadrrappa Road,
Doddakunte Cox Town,
Bengaluru-560 005.
(Deft.1 & 2:Ex-parte,
Deft.2 & 4-By Sri. R.Lakshmikantha Rao,
Advocate.)
3 O.S.No.3397/2014
Date of Institution of the
suit: 28.04.2014.
Nature of suit: Partition.
Date of commencement of
recording of evidence: 08.06.2016
Date on which Judgment
pronounced: 31.08.2019
Total Duration: Years Months Days
05 04 03
JUDGMENT
Plaintiff instituted this suit for the reliefs of partition and separate possession of his share in the subject matter of the suit against the defendants.
2. During pendency of the suit, plaintiff died and his legal heirs plaintiff No.1(a) to 1(c) are brought on record and they proceeded with the suit.
3. The subject matter of the suit (hereinafter called as 'suit property') is all that piece and parcel of property bearing No.68, new No140, 6th Cross, Kadarrapa Road, Doddakunte, Cox Town, Bengaluru 560 005, measuring approximately 1825 Sq. ft. and having specific boundaries. Plaintiff given the description of the suit property in the schedule annexed to the plaint.
4 O.S.No.3397/20144. The case of the plaintiff is that, Muninanjappa and his wife Munimuddamma @ Rajamma were his parents and they had no children and hence, adopted three children viz. Plaintiff, defendant No.1 and one Narendra Kumar; the said Narendra Kumar was died and defendant No.2 to 4 are his legal heirs; the said adoptive father of plaintiff Sri.Muninanjappa expired on 16.6.1973 and adoptive mother Smt.Munimuddamma @ Rajamma expired on 11.7.2001; therefore, plaintiff, defendant No.1 and deceased Narendra Kumar were only the legal heirs to the said adoptive parents Muninanjappa and Munimuddamma @ Rajamma.
5. Plaintiff pleaded that, the adoptive father Muninanjappa gifted suit property to adoptive mother Munimuddamma @ Rajamma; thereafter the name of the adoptive mother mutated to the revenue records of suit property; the said adoptive mother died intestate and hence, the suit property devolves among plaintiff, defendant No.1 and deceasd Narendra Kumar; the said Narendra Kumar was in the service of central Govt. and he expired on 24.6.1987 leaving behind defendant No.2 to 4; hence, plaintiff is having 1/3rd share in the suit property and accordingly, defendant No.1 is having 1/3rd share and defendant No.2 to 4 jointly entitled to 1/3rd share in the suit property.
6. Plaintiff further pleaded that, the deceased brother Narendra Kumar lived with mother Munimuddamma @ Rajamma and this being so, defendant No.2 to 4 continued 5 O.S.No.3397/2014 to stay in the suit property and it appears that they are going to collect the rents from the tenants of suit property; plaintiff requested the defendant No.2 for effecting partition and allotment of his share in the suit property but defendant No.2 raising the emotional issues of she being widow and having the care of her children, pushing forward the partition of the suit schedule property; plaintiff apprehended that defendant No.2 may get transfer the revenue records of suit property in her name and in the names of her children excluding plaintiff; hence, he instructed his son Chandrashekar i.e. plaintiff No.1(c) to raise objection before ARO, BBMP; accordingly objections raised vide letter dated 6.10.2010 stating that plaintiff is the legal heir of late Munimuddamma and in the event any person approached for transfer of revenue records of suit property, the same has to be intimated to the plaintiff.
7. The plaintiff further also pleaded that, defendant No.2 approached the revenue authorities for changing the Khatha of suit property falsely stating that they are only the legal heirs to deceased Munimuddamma @ Rajamma and the revenue authorities without giving any notice to the plaintiff and without hearing him transferred the Khatha of suit property in the name of defendant No.2; plaintiff came to know about the said fact through a letter dated 8.10.2013 and it has been stated that as there was no response the Khatha of suit property was came to be changed in the name of defendant No.2.
6 O.S.No.3397/20148. Plaintiff furthermore pleaded that, neither he nor his son Chandrashekar received any communication from revenue authorities and as such, they sought the details of transfer of Khatha of the suit property from revenue authorities by filing an application under RTI Act and hence, letter dated 8.10.2013 was came to be issued; plaintiff preferred an appeal against the order of transfer of Khatha of suit property before the Appellate authority i.e. Joint Commissioner, BBMP, Bangalore.
9. Plaintiff furthermore also pleaded that, he and his brother Narendra Kumar and defendant No.1 were having 1/3rd share each in the suit property and defendant No.2 to 4 with an ulterior motive of usurping of the suit property falsely deposed and stated that they are only the legal heirs of Munimuddamma and fraudulently got transferred the revenue records of suit property in the name of defendant No.2; plaintiff is having legitimate right of 1/3rd share in the suit property and therefore, he filed this suit for partition and separate possession of the said 1/3rd share in the suit property against the defendants as they denied his legitimate right.
10. Plaintiff submitted that, the cause of action for the suit arose on 11.7.2001 when Munimuddamma @ Rajamma expired and subsequently on 8.10.2013 when he informed that the revenue records of suit property were transferred in the name of defendant No.2. Plaintiff further also submitted that, the location of the property is at Bengaluru and the cause of action for the suit also arose at 7 O.S.No.3397/2014 Bengaluru and therefore, this court is having jurisdiction to try and entertain the suit. Accordingly, plaintiff prayed to decree the suit.
11. Plaintiff also sought ex-parte temporary injunction order against defendants.
12. This court issued the suit summons to defendants and the said summons were served on defendants, but defendant No.1 and 3 were not appeared before this court and defended the suit. Defendant No.2 and 4 appeared before this court through their counsel and defended the suit by filing their common written statement.
13. The defence of the defendant No.2 and 4 is that, the suit of the plaintiff is not maintainable as neither plaintiff nor defendant No.1 are the legal heirs of Muninanjappa or they falls within Hindu Undivided Family; hence, suit is liable for dismissal in limine as plaintiff had no locus standi to institute the suit.
14. Defendant No.2 and 4 denied the contents of plaint para No.3 and 4 that plaintiff is also one of the adopted child of Muninanjappa and Munimuddamma @ Rajamma and he is a legal heir to the said couple.
15. Defendant No.2 and 4 submitted that plaintiff is a son of one Sri.M.Rajappa who was an employee of HAL and after his retirement plaintiff being a son received his service benefits; hence, it is false to state that plaintiff is a adopted son of Muninanjappa and Mumimuddamma; further it is 8 O.S.No.3397/2014 false to state that said Muninanjappa and Munimuddamma adopted three children.
16. Defendant No. 2 and 4 denied that, the suit properties devolved among plaintiff, defendant No.1 and Narendra Kumar.
17. Defendant No.2 and 4 submitted that the suit property is not a self acquired property of Muninanjappa and it is false to state that, plaintiff, defendant No.1 and defendant No.2 to 4 are having equal rights in the suit property; it is false to state that, plaintiff approached defendant No.2 and sought partition in the suit property; plaintiff is not at all having any right in the suit property.
18. Defendant No.2 and 4 submitted that, it is not within their knowledge that plaintiff filed applications under RTI Act before revenue authorities and sought information; they submitted that, defendant No.2 to 4 are only the legal heirs of Muninanjappa and Munimuddamma @ Rajamma; neither plaintiff nor defndant No.1 are entitled any share in the suit property and they have no any manner of right title or interest over the suit schedule property; there is no any cause of action for the suit. Accordingly, defendant No.2 and 4 prayed to dismiss the suit with costs.
19. During the proceedings I.A.No.I to IX were filed and the same have been disposed in accordance with law.
9 O.S.No.3397/201420. In view of rival pleadings of both parties, my predecessor framed the following issues:
1. Whether the plaintiff proves that deceased Muninanjappa and his wife Munimuddamma have adopted him and his brother Narendrakumar and the 1st defendant as their adopted children?
2. Whether the plaintiff further proves that himself and defendants are only legal heirs late Muninanjappa and Munimuddamma @ Rajamma?
3. Whether plaintiff is entitled for the partition and separate possession? If so, what is his share?
4. Whether plaintiff is entitled for the reliefs sought for?
5. What order or decree?
21. The burden of proving of Issue No.1 and 2 is on plaintiffs. In order to discharge the said burden of proof, plaintiffs resorted for both oral evidence and documentary evidence. Plaintiff No.1(c) examined as P.W.1 and he got marked the documentary evidence at Ex.P.1 to P.32.
22. Ex.P.1 is the Death Certificate, Ex.P.2 is the Power of Attorney, Ex.P.3 and 4 are Family trees, Ex.P.5 is the Death extract, Ex.P.6 is the Birth Certificate, Ex.P.7 is the SSLC marks card, Ex.P.8 is the Transfer Certificate, Ex.P.9 is the Diploma marks card, Ex.P.10 is the Passport, Ex.P.11 is the Identity Card, Ex.P.12 is the Aadhaar card, Ex.P.13 is the Identity Certificate, Ex.P.14 is the Acknowledgment issued by the I.T., Ex.P.15 is the Gift Deed, Ex.P.16 is the Khatha Extract, Ex.P.17 is the office 10 O.S.No.3397/2014 copy of the appeal filed before the BBMP, Ex.P.18 is the Encumbrance Certificate, Ex.P.19 is the Declaration, Ex.P.20 is the Khatha Extract, Ex.P.21 is the Letter Dt:06-10-2010, Ex.P.22 is the Endorsement issued by the BBMP, Ex.P.23 is the RTI application, Ex.P.24 is the Death Certificate, Ex.P.25 is the Birth Certificate, Ex.P.26 is the Letter, Ex.P.27 is the particulars furnished by the Office of Co-operative Audit, Ex.P.28 & Ex.P.29 are the photos, Ex.P.30 is the letter written by BBMP under RTI Act, Ex.P.31 is the certified copy of gift deed dated 31.8.1967 and Ex.P.32 is the notarized copy of gift deed dated 31.8.1967.
23. Defendants in order to discharge their onus cross-examined P.W.1. They also adduced their oral evidence by examining defendant No.4 as D.W.1 and got marked the documentary evidence at Ex.D.1 to D.11.
24. Ex.D.1 to Ex.D.3 are the Letters by Hindustan Aeronautics Limited, Ex.P.4 is the Cumulative Record, Ex.D.5 is the Khatha Certificate, Ex.D.6 is the Tax paid receipt, Ex.D.7 is the Encumbrance Certificate, Ex.D.8 is the certified copy of the Compromise Petition, Ex.D.9 is the NOC issued by BDA, Ex.D.10 is the certified copy of the Will and Ex.D.11 is certified copy of registered Gift Deed.
25. I carefully perused the pleadings of both parties, oral evidence adduced and documentary evidence produced by both parties. Heard the arguments of learned counsels appearing for both parties and also gone through the authorities relied.
11 O.S.No.3397/201426. My answers and findings to the above issues are as follows:
Issue No.1- In the Negative;
Issue No.2- In the Negative;
Issue No.3- In the Negative;
Issue No.4- In the Negative:
Issue No.5- As per the order passed for the following:
REASONINGS
27. Issue No.1: It is the case of the plaintiff that, plaintiff, defendantNo.1 and one Narendra Kumar i.e. husband of defendant No.2 and father of defendant No.3 and 4 are the adoptive children of a couple Muninanjappa and Munimuddamma @ Rajamma. Plaintiff in plaint para No.3 pleaded that, Muninanjappa and his wife Munimuddamma were not having any children and therefore, they adopted plaintiff, defendant No.1 and one Narendra Kumar.
28. Defendant No.2 to 4 denied that plaintiff and defendant No.1 are the adoptive children of Muninanjappa and Munimuddamma @ Rajamma. Plaintiffs in order to prove the fact of adoption of plaintiff produced the documentary evidence at Ex.P.4, 6 to 9 and 10 to 14 and Ex.P.27. The documentary evidence at Ex.P.4 is a general affidavit, wherein plaintiff No.1(c) sworn that his father M.Jayamuni i.e. the plaintiff was the adoptive son of Muninanjappa and Munimuddamma @ Rajamma. The said 12 O.S.No.3397/2014 affidavit is a self declaratory in nature and the self declaration is not of plaintiff. The documentary evidence at Ex.P.6 to 9 are the school records of plaintiff, wherein his name is entered as M.Jayamuni and it is shown as he is the son of Muninanjappa.
29. The documentary evidence at Ex.P.10 is a passport of plaintiff issued by passport authority, wherein it has been shown that the plaintiff is the son of Muninanjappa and Rajamma. In the said document, the name of the spouse of plaintiff is mentioned as Gowramma Nanjappa.
30. The documentary evidence at Ex.P.11 and 13 are identity card/certificate of plaintiff issued by the department in which he was served. In the said documentary evidence it is mentioned that plaintiff is the son of Muninanjappa.
31. The documentary evidence at Ex.P.12 is Aadhaar card of plaintiff and in the said document, the name of the plaintiff is mentioned as Jayamuni Muninanjappa. The Income tax Department addressed a letter on 25.6.2009 to the address of plaintiff by mentioning the name of the plaintiff as Muninanjappa Jayamuni. The said letter is at Ex.P.14.
32. On the basis of the above said documentary evidence, plaintiffs are going to establish that deceased plaintiff was an adoption son of the couple Muninanjappa and Munimuddamma. Plaintiffs except the above said 13 O.S.No.3397/2014 documentary evidence not produced any other evidence to show that deceased plaintiff was adopted by Muninanjappa and Munimuddamma @ Rajamma. Defendant No.2 to 4 denied the relation of deceased plaintiff through adoption with Muninanjappa and Munimuddamma. The counsel for defendant during argument submitted that, deceased plaintiff might be a foster child/son of Muninanjappa and Munimuddamma @ Rajamma. He contended that, Narendra Kumar, the husband of defendant No.2 and father of defendant No.3 and 4 was the son of Muninanajappa and Munimuddamma @ Rajamma and therefore, defendant No.2 to 4 being the wife and children of said Narendra Kumar are only the legal heirs to inherit the suit property. He relied the documentary evidence marked at Ex.P.32. The said documentary evidence is a Gift Deed dated 31.8.1967 executed by one Mariyappa in favour of R.Jayamuni son of Rajappa i.e. the deceased plaintiff. Plaintiffs themselves produced the said document. On careful perusal of the said document, it reveals that deceased plaintiff was the son of Rajappa and he was represented by his aunt Smt.Munimuddamma @ Rajamma. Thus, according to defendant No.2 to 4 defendant plaintiff was the son of one Rajappa, but parented by Munimuddamma @ Rajamma w/o. Muninanjappa and hence, deceased plaintiff was her foster child/son and not the adoptive son. Further, defendant No.2 to 4 produced the documentary evidence at Ex.D.9 i.e. NOC by BDA obtained under RTI Act, discloses that plaintiff is the son of one Rajappa. The said documentary evidence is not disputed by the plaintiffs.
14 O.S.No.3397/201433. Counsel for defendant further argued that the documentary evidence produced by the plaintiffs at Ex.P.4, 6 to 9 and 10 to 14 are not sufficient to hold that deceased plaintiff was the adopted son of couple Muninanjappa and Munimuddamma @ Rajamma. He further also argued that, there is no any scope under Hindu law for a couple to have multiple adoptions and according to him, the Hindu Law of Adoption permits only one adoption in each case of son and daughter. In this case it is an undisputed fact that the parties are Hindus and they are governed by Hindu law.
34. An adoption will become valid if the same is in accordance with the provisions of Section 6 to 9 and Section 11 of Hindu Adoptions and Maintenance Act, 1956. With respect to this case, Section 6 and 11 of the said Act are very significant. Section 6 of said Act provides that:
"Section-6: Requisites of a valid adoption.-No adoption shall be valid unless-
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter".
Thus, Section 6 enumerates the requirements of a valid adoption. (1) The person adopting the child must have the right to take and lawfully capable of taking a son or 15 O.S.No.3397/2014 daughter in adoption. (2) The person giving in adoption must be lawfully capable of doing so. (3) The person adopted must be lawfully capable of being taken in adoption. (4) The conditions related to adoption as stated in the other provisions of the Act must be fulfilled.
35. Thus, as per Section 6(iv) of Hindu Adoptions and Maintenance Act, 1956 the other conditions of an adoption are here at Section 11. Section 11 of Hindu Adoption and Maintenance Act, 1956 provides that:
S.11: Other conditions for a valid adoption.- In every adoption, the following conditions must be complied with:
(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty one years older than the person to be adopted;16 O.S.No.3397/2014
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption.
Provided that the performance of datta homam shall not be essential to the validity of an adoption."
Thus, as per the provisions of Section 11(vi), an adoption to be valid, there must be giving of the child by the natural parents and acceptance of the said child by the adoptive parents.
36. The Hon'ble Supreme Court of India in AIR 1975 SC 1103 in the matter of Devaraj -Vs- Suraj Bai stated that:
"Failure of compliance with any of the above said requirements will render the adoption null and void. This Section is mandatory in nature. The requirements are cumulative and must be complied with. The requirement about giving in adoption by competent person is applicable both in the case of minor and other person who, where permissible by custom, may be adopted".17 O.S.No.3397/2014
37. In this case, as contended by the learned counsel for defendant No.2 to 4 plaintiffs not adduced any iota of evidence to show that deceased plaintiff was given in adoption by his natural parents and the couple Muninanjappa and Munimuddamma @ Rajamma accepted him as adopted child/son.
38. The counsel for defendant No.2 to 4 further argued that plaintiffs not proved the adoption of deceased plaintiff by the Muninanjappa and Munimuddamma @ Rajamma. He further also submitted absolutely there is no any evidence on record to show that deceased plaintiff adopted by Muninanjappa and Munimuddamma @ Rajamma and the documentary evidence at Ex.P.4 to 9 and 10 to 14 will not come to the help of plaintiffs in proving the adoption. According to him, there is no any evidence on record to show that deceased plaintiff was given in adoption by complying the condition that 'actual giving the child by natural parents and adoptive parents accepted the child'.
39. The counsel for plaintiff argued that, the adoption took place long back and therefore, it cannot be expected the legible evidence to prove the adoption. Perhaps, plaintiffs are having the sort of evidence which proves that deceased plaintiff was adopted by his adoptive father and mother. The counsel for plaintiff relied on a citation reported in 1970 (1) SCC 667 in the matter of Debi Prasad (dead) by his L.Rs. -Vs- Smt.Tribeni Devi & Others, wherein the Hon'ble Apex Court held that:
18 O.S.No.3397/2014"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 over all 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."19 O.S.No.3397/2014
40. He also relied another citation reported in (2018) 9 SCC 663, in the matter of Kamala Rani -Vs- Ramlalith Roy @ Laluki Roy (dead) through his L.R. & Others, wherein it has been held that:
"Though formal ceremony of giving and taking is an essential ingredient for valid adoption, long duration of time during which a person is stated as adopted cannot be ignored".
41. The learned counsel for plaintiff canvassed the argument that, the documentary evidence produced at Ex.P.4 to 9 and 10 to 14 proves that the deceased plaintiff was treated as adopted son of Muninanjappa and Munimuddamma @ Rajamma for a long period. Therefore, he is the adopted son of the said couple. There is no any difficulty for this court in accepting the said argument of counsel for plaintiff in respect of the documentary evidence he relied. But, plaintiff not adduced any evidence in respect of the essential ingredient of 'giving and taking the child' in adoption. Absolutely there was no impediment for the plaintiffs to lead the evidence in respect of giving the deceased plaintiff in adoption by his natural parents and taking or receiving him as adopted son by the Muninanjappa and Munimuddamma @ Rajamma. The plaintiff would have an opportunity of adducing atleast the oral evidence in respect of giving and taking of the child by examining any person. The plaintiffs have not done the same. When plaintiff not proved the very ingredient part of giving and taking of the child i.e. deceased plaintiff, it 20 O.S.No.3397/2014 cannot be held that he had been given in adoption. Therefore, authorities relied by the plaintiffs are not applicable to their case.
42. Further, plaintiffs in their own pleadings pleaded that, Muninanjappa and Munimuddamma @ Rajamma were adopted three children including the deceased plaintiff. It is an admitted fact that, the said Muninanjappa and Munimuddamma @ Rajamma were the Hindu couple and they were governed by Hindu Law. As per Section 11(i) of Hindu Adoptions and Maintenance Act,1956 if the adoptive father or mother by whom adoption is made must not have a son. Hence, the said pleadings of plaintiffs are quite opposite to the Section 11(i) of Hindu Adoption and Maintenance Act, 1956. Section 11(i) indirectly states that multiple adoptions are not possible among Hindus. Under the circumstances, it cannot be accepted that Muninanjappa and Munimuddamma adopted three children during their life time. Therefore, for the reasons and observations made above, I am of the opinion that, the contention of plaintiffs that, Muninanjappa and his wife Munimuddamma adopted the deceased plaintiff are false and not acceptable. Accordingly, my answer to Issue No.1 is in Negative.
43. ISSUE NO.2: Plaintiffs in their plaint para No.7 pleaded that, the adoptive parents of deceased plaintiff, defendant No.1 and Narendra Kumar died leaving behind the suit property and after their death, suit schedule property devolved upon their legal heirs i.e. deceased 21 O.S.No.3397/2014 plaintiff, defendant No.1 and present defendant No.2 to 4 as they are the legal representatives of deceased Narendra Kumar.
44. Defendant No.2 to 4 disputed the said fact and they contended that, they are only entitled persons to claim suit property.
45. To prove the aforesaid fact, plaintiffs relied documentary evidence at Ex.P.3, P.4 and P.9. The documentary evidence at ExP.3 is a attestation certificate of genealogy of the family of plaintiffs. The DeputyTahasildar Krishnarajapura Hobli, Bengaluru East Taluk issued the said certificate. As per the said certificate, the contents of affidavit under e-stamp paper No.157259, dated 6.10.2015 is confirmed for the purpose of claiming heirship and pension etc. Plaintiffs also produced the affidavit under paper No.157259 dated 6.10.2015 and the said document is marked as Ex.P.4. On careful of Ex.P.4, it is crystal clear that it is an affidavit sworn not on e-stamp paper. Thus, from the documentary evidence at Ex.P.3 and P.4, it is clear that, there is no consistency between the two documents. Therefore, it can be stated that plaintiffs obtained the certificate under Ex.P.3 by giving false information. On the other hand, plaintiffs also produced the documentary evidence at Ex.P.19. Ex.P.19 is a declaration in respect of family tree of Muninanjappa and Munimuddamma @ Rajamma. The contents of Ex.P.19 are clearly contradictory to the documentary evidence at Ex.P.3 and P.4. By producing the documentary evidence at Ex.P.3, P.4 and P.19 plaintiffs trying to establish that deceased plaintiff was also adopted son of Muninanjappa and Munimuddamma @ Rajamma.
22 O.S.No.3397/201446. When the documentary evidence produced by the plaintiffs in respect of their heirship are contradictory to each other, the said documentary evidence are not worth for belief and the same are not believable and not reliable.
47. On the other hand, the documentary evidence produced at Ex.P.32 by the plaintiffs themselves shows that, their father deceased plaintiff was the son of Rajappa. Defendant No.2 to 4 also produced the documentary evidence at Ex.D.9. The said documentary evidence is a No Objection Certificate issued by BDA dated 3.11.1988 obtained under RTI Act. As per the said documentary evidence, Bengaluru Development Authority issued NOC to M.Jayamani, S/o.Rajappa for construction of residential building. By the said document, it can be stated that deceased plaintiff was the son of Rajappa and not the son of Muninanjappa and Munimuddamma @ Rajamma. Merely because having an initial as 'M' or merely because having a description as "s/o Muninanjappa", it cannot be concluded that, a person is a son of Muninanjappa. Might be deceased plaintiff was a foster son of Muninanjappa. But a foster child is not entitle to inherit the property. Plaintiffs not disputed the said documentary evidence. Thus, as per the contents of Ex.D.9 deceased plaintiff i.e. M.Jayamuni is the son of Rajappa and not the son of Muninanjappa and Munimuddamma @ Rajamma. Therefore, it can be safely held that, deceased plaintiff was not the legal heir of Muninanjappa and Munimuddamma @ Rajamma to succeed the suit property. Accordingly, my answer to Issue No.2 is in Negative.
23 O.S.No.3397/201448. ISSUE NO.3 & 4: These issues have been taken together for common discussion as the findings on one issue would be the findings on other issue.
49. Plaintiffs contended that, their deceased father i.e. deceased plaintiff was the one of the adoptive son of Muninanjappa and Munimuddamma and therefore he was having 1/3rd share in the suit property and the present plaintiffs being his legal representatives are entitled for said 1/3rd share in the suit property and accordingly, they sought for partition and separate possession of the said share.
50. This court while answering issue No.1 observed that, multiple adoptions are not possible among Hindus and therefore, the contentions of plaintiffs that their deceased father was adopted by Muninnajappa and Munimuddamma @ Rajamma was not tenable under law. Plaintiffs failed in establishing that their deceased father was adopted son of Muninanjappa and Munimuddamma @ Rajamma. Further, they also failed in establishing that they are legal heir s of Muninanjappa and Munimuddamma to succeed the suit property.
51. Defendant No.2 to 4 produced the documentary evidence at Ex.D.8. The said documentary evidence is a court record in RSA No.462/1962. In the said documentary evidence, it is mentioned that, Sri.Narendra Kumar i.e. husband of defendant No.2 and father of defendant No.3 and 4 was the son of Muninanjappa. The said piece of documentary evidence is a court record, which is having a presumptive value under Section 41 of Indian Evidence At.
24 O.S.No.3397/2014Plaintiff also not disputed the correctness of the said documentary evidence. Thus, as per documentary evidence at Ex.D.8 the husband of defendant No.2 and father of defendant No. 3 and 4 was the son of Muninanjappa and Munimuddamma @ Rajamma. Therefore, plaintiffs failed in proving the legal character of their father in respect of suit property and therefore, it can be stated that deceased plaintiff was not having any semblance of rights over the suit property. When the deceased plaintiff was not having any rights over the suit property, plaintiffs being his legal representatives certainly not entitled to claim the right of partition in the suit property.
52. The counsel for defendant No.2 to 4 also raised a plea and argued that, deceased plaintiff not filed the suit by presenting plaint personally. He submitted that, deceased plaintiff was a literate but, plaint is signed through thumb impressions. The counsel for plaintiff replied for the said plea that, due to infirmity, deceased plaintiff not uses to put the signature through pen. But, it has came in the in the cross-examination of P.W.1 that they not produced any documentary evidence to show that deceased plaintiff was suffering from an infirmity in putting his signature through pen. Therefore, answer given by the plaintiffs in respect of the said plea is also not satisfactory. Looking towards any angle, the claim of the plaintiffs in respect of suit property is not tenable and acceptable. Thus, this court is of the opinion that, plaintiffs are not entitled for the right of partition in the suit schedule property. Accordingly, my answers to Issue No.3 and 4 are in Negative.
25 O.S.No.3397/201453. ISSUE NO.5: In view of my observations and answers to issue No.1 to 4 as above discussed, I do not find any merit in the suit of the plaintiffs and hence, I proceed to pass the following ORDER Suit of the plaintiffs is hereby dismissed. No order as to costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on the 31st day of August, 2019.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
26 O.S.No.3397/2014ANNEXURE List of witnesses examined for the Plaintiffs:
PW.1 : Mr.Chandrashekar J.
List of documents marked for the Plaintiffs:
Ex.P.1 Death Certificate of Jayamuni M. Ex.P.2 Power of Attorney dated 7.6.2016. Ex.P.3 Family Attestation Certificate.
Ex.P.4 Family tree affidavit.
Ex.P.5 Death Certificate of Munimuddamma.
Ex.P.6 Birth Certificate of Jayamuni. M.
Ex.P.7 SSLC marks card of Jayamuni M.
Ex.P.8 Transfer Certificate of Jayamuni M.
Ex.P.9 Diploma marks card of Jayamuni.
Ex.P.10 Passport of M.Jayamuni dt.10.6.2009.
Ex.P.11 Identity card of Jayamuni M.
Ex.P.12 Aadhaar card of Jayamuni.
Ex.P.13 Identity Certificate of Jayamuni.
Ex.P.14 Notice of Income Tax Dept. to
M.Jayamuni.
Ex.P.15 Gift Deed.
Ex.P.16 Khatha Extract.
Ex.P.17 Office copy of the appeal filed before the
BBMP.
Ex.P.18 Encumbrance Certificate.
Ex.P.19 Declaration.
Ex.P.20 Khatha Extract.
Ex.P.21 Letter Dt:06-10-2010.
Ex.P.22 Endorsement issued by the BBMP
Ex.P.23 Application under RTI.
Ex.P.24 Death Certificate of Muninanjappa.
27 O.S.No.3397/2014
Ex.P.25 Birth Certificate.
Ex.P.26 Letter.
Ex.P.27 Particulars furnished by the Office of
Co-operative Audit.
Ex.P.28 & Photos.
29
Ex.P.30 Letter written by BBMP under RTI Act.
Ex.P.31 Certified copy of gift deed dated
31.8.1967.
Ex.P.32 Notarized copy of gift deed dated
31.8.1967.
List of witnesses examined for the defendants:
D.W.1 : Sri.Raghavendra.
List of documents marked for the defendants:
Ex.D.1 to 3 Letters by Hindustan Aeronautics Limited.
Ex.D.4 Cumulative Record of Narendra Kumar.
Ex.D.5 Khatha Certificate.
Ex.D.6 Tax paid receipt.
Ex.D.7 Encumbrance Certificate.
Ex.D.8 Certified copy of the Compromise
Petition.
Ex.D.9 NOC issued by BDA.
Ex.D.10 Certified copy of the Will.
Ex.D.11 Certified copy of the registered Gift
Deed.
(Ningouda B.Patil)
XX ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
28 O.S.No.3397/2014
Judgment pronounced in the open
court (vide separate judgment).
ORDER
Suit of the plaintiffs is
hereby dismissed.
No order as to costs.
XX Addl.C.C & S.J.,
Bengaluru.