Karnataka High Court
S M Veerappaiah Shastri vs Hirematada Kotriahswamy on 22 June, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO.1311/2005 (DEC)
BETWEEN:
S M VEERAPPAIAH SHASTRI
SINCE DECEASED BY LRS.
1. SMT.SHIVAGANGAMMA
W/O LATE VEERAPPIAH SHASTRI,
AGED ABOUT 80 YEARS,
NEAR HANCHINA INDUSTRY GATE,
SHIVABASAVA NAGAR,
HAVERI-581110.
2. SMT. THOTAMMA
D/O. LATE VEERAPPAIAH SHASTRI
AGED ABOUT 60 YEARS,
ASIRWADA, VINAYAKANAGAR,
HUVINA HADAGALI,
BELLARY DISTRICT-586153.
3. S M MANJUNATHA
S/O. LATE VEERAPPIAH SHASTRI
AGED ABOUT 52 YEARS,
EX-SERVICEMEN,
NEAR HANCHINA INDUSTRY GATE,
SHIVABASVANAGAR,
HAVERI-581110.
4. SMT. AKKAMAHADEVI
D/O. LATE VEERAPPIAH SHASTRI,
AGED ABOUT 47 YEARS,
BASAIAHNAVARANAGAR,
UNKAL, HUBLI-580020,
DHARWAD DISTRICT.
5. SMT. LALITHAMMA
D/O. LATE VEERAPPIAH SHASTRI
AGED ABOUT 45 YEARS,
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SINECURE, FOREST QUARTERS,
DHARWAD-580001.
6. S M SHASHIDHARAIAH
S/O. LATE VEERAPPIAH SHASTRI,
AGED ABOUT 43 YRS,
BANGARPET, HIRE HADAGALI,
HADAGALI TQ-586153.,
BELLARY DISTRICT.
7. SMT. GOURAMMA
D/O. LATE VEERAPPIAH SHASTRI
AGED ABOUT 4O YEARS,
SINCURE, HUBLI ROAD,
MUNDAGOD-581349,
KARWAR DISTRICT.
8. SMT. NAGARATHNAMMA
D/O LATE VEERAPPIAH SHASTRI,
AGED ABOUT 36 YEARS,
GOVERNMENT JUNIOR
COLLEGE FOR GIRLS,
JAMAKANDI-587301,
BIJAPUR DISTRICT.
... APPELLANTS
(BY SRI. RAMAKRISHNA G DHONGADI, ADVOCATE)
AND :
HIREMATADA KOTRIAHSWAMY
SINCE DECEASED BY LRS.
1. S M SHASHIKALA
W/O LATE KOTRIAHSWAMY S.M.
AGED ABOUT 57 YEARS,
2. S M BASAVARAJA
S/O LATE KOTRAIAHSWAMY S.M.
AGED ABOUT 32 YEARS.
3. S M GANGADHARA,
S/O LATE KOTRAIAHSWAMY S.M.
AGED ABOUT 31 YEARS.
4. B.M. SHEELA
W/O. B M MARULASIDDAIAH
D/O. LATE KOTRAIAHSWAMY S.M.
AGED ABOUT 27 YEARS.
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ALL ARE R/O AMMANAKERE,
KUDLIGI TALUK-583135.
BELLARI DISTRICT.
HIREMATADA PANCHKSHRAIAH
S/O BETTAIAH
SINCE DECEASED BY LRS.
HIREMATADA DEVEERAMMA
W/O PANCHAKSHARAIAH,
SINCE BOTH DECEASED
REP. BY THEIR COMMON LRS.
5. H.M REVANASIDDAIAH,
S/O. LATE H. M. PANCHAKSHARAIAH
AGED ABOUT 53 YEARS,
R/O. HIRE HADAGALI VILLAGE
HOOVINAHADAGALI TALUK-586153.
BELLARY DISTRICT.
6. H M VASUDEVAIAH
S/O LATE H.M. PANCHAKSHARAIAH
AGED ABOUT 51 YEARS,
LECTURER IN
AGRICULTURAL UNIVERSITY
BELGAUM ROAD,
DHARWAD-580001.
7. H M VEERAIAH
S/O LATE PANCHAKSHARAIAH
AGED ABOUT 48 YEARS,
T.M.A.E.S. HIGH SCHOOL,
AT HIREMASDUR,
SAVANUR TALUK-581118.
DAHARWAD DISTRICT.
8. SMT. CHINNAMMA
W/O MAHALINGAIAH
AGED ABOUT 55 YEARS,
C/O. H .M. REVANASIDDAIAH
R/O. HIRE HADAGALI VILLAGE,
HOOVINAHADAGALI TALUK-586153.
BELLARY DISTRICT.
9. SMT. SUJATHAMMA
D/O. H. M. PANCHAKSHARAIAH
AGED ABOUT 38 YEARS,
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R/O HIRE HADAGALI VILLAGE
HOOVINAHADAGALI TALUK -586153,
BELLARY DISTRICT.
10. H. M. AMBAKKA
W/O. H. M. SHAMBULINGAIAH
AGE ABOUT 58 YEARS,
R/O. HIRE HADAGALI VILLAGE
HOOVINAHADAGALI TALUK-586153,
BELLARY DISTRICT.
... RESPONDENTS
(BY SRI. G KOTRABASAPPA, ADV. FOR R1;
SRI. G.M.CHANDRASHEKAR, ADV. FOR R2-10 - ABSENT;
SRI. T.KOTRESHI ADV. FOR R4 - ABSENT)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD. 28.2.2005 PASSED IN R.A.NO.
61/1997 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.),
HOSPET, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DTD. 23.7.1997 PASSED IN O.S.
NO.136/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) &
JMFC, HADAGALI.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THIS COURT, DELIVERED THE FOLLOWING:
JUDGEMENT
On 22.01.2008 this appeal was admitted to consider the following substantial question of law.
" Whether the lower Appellate Court was justified in upholding the adoption of the respondent when admittedly he was 21 years old on the date of adoption? "
2. To answer this question, the essential facts to be stated are that the plaintiff S.M. Veerappaiah Shastri :5: brought suit O.S. No.178/1981 initially in the Court of Civil Judge, Hospeth. It appears that it was transferred to the Court of Hadagali where it was re-numbered as O.S. No.136/1989. The plaintiff challenged the adoption of defendant No.1 by one Kotrawwa. To state the relationship, one Thotaiah had two sons by name Rachaiah and Shivalingaiah. The plaintiff is the son of Shivalingaiah. Rachaiah had son by name Rudraiah. Kotrawwa and Gourawwa were the two wives of Rudraiah. Kotrawwa had no issues, Gourawwa had son by name Siddalingaiah. Rudraiah and Gourawwa died in the year 1941 and Siddalingaiah died in the year 1961. It appears to Veerappaiah filed a suit O.S. No.35/1946 seeking a declaration that he was the only nearest legal heir to Kotrawwa, after the death of Gouravva and Siddalingaiah. That suit was decreed. After the death of Kotrawwa, the plaintiff wanted to get the revenue records of the property of Kotrawwa transferred to his name and at that time he came to know that defendant No.1 had laid claim on the properties of Kotrawwa stating that he was adopted by Kotrawwa in the year 1965 itself. Therefore, he brought a suit seeking declaration that the said adoption was illegal. :6:
3. The defendant No.1 in his written statement contended that he was not a party to O.S. No.35/1946, and therefore, the judgement in the said suit did not bind him. He further contended that it was Kotrawwa, who voluntarily adopted him with a view to perpetuating the line of her husband. She made a request to his parents to give defendant No.1 in adoption to her. Even there were panchayatdars, who prevailed upon the parents of defendant No.1 to give him in adoption to Kotrawwa. Therefore, Kotrawwa, by observing all the customs and religious procedures adopted him on 06.11.1965 in the presence of important persons of the village. There was actual giving and taking. The community to which the party belongs permitted giving in adoption of a boy aged more than 15 years. Later, on 20.12.1965 adoption was also registered. Thus, defendant No.1 contended that there was valid adoption. He further stated that Kotrawwa had also executed a Will in his favour on 04.12.1978 bequeathing all her properties to him. She executed the Will when she was in sound state of mind in the presence of the attestors. Therefore, defendant No.1 claimed that he had succeeded to all the properties of Kotrawwa on the basis of the adoption and also the Wills executed by her.
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4. The trial Court, after recording the evidence, came to the conclusion that since the adoption deed was registered, a presumption would arise according to Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act') and for this reason the onus probandi was on the plaintiff to demonstrate that the adoption was void and unenforceable. The trial Court held that the adoption was bad for several reasons, but main reason given by it is with regard to the age of defendant No.1. It has been held by the trial Court that the written statement does not disclose that defendant No.1 was less than 15 years of the age at the time of adoption. Since defendant contended that their community permitted adopting a boy aged more than 15 years, the defendant should prove the custom. The plaintiff produced the Birth Certificate of defendant No.1 as per Ex.P-
30. According to this document, defendant No.1 was born on 03.12.1944. Even D.W.1 i.e. defendant No.1 in the cross- examination answered that at the time of adoption his age was 16 years. So, having regard to the Birth Certificate, Ex.P-30, the age was found to be 21 years on the date of adoption. Since the defendant failed to prove the custom, the trial Court held that his adoption was against Section 11 :8: of the Act. The trial Court held that the Will was not proved. Therefore, the trial Court decreed the suit of the plaintiff. Aggrieved by this judgment, defendant No.1 preferred an appeal R.A. No.61/1997 to the Court of Additional Senior Civil Judge, Hospet. The learned Appellate Judge, set aside the findings of the trial Court and held that the adoption was valid. However, confirmed the findings of the trial Court with regard to the Will. Since the adoption was held to be valid by the First Appellate Court, suit was dismissed by it by allowing the appeal. Aggrieved by the judgment, this second appeal by the legal representatives of the plaintiffs.
5. The appellants' counsel argues that even during the life time of Kotrawwa the plaintiff had obtained a declaration that he was the only legal heir to her. This judgment of the Court attained finality. When the defendant No.1 contended that he was adopted by Kotrawwa and that the custom permitted for adopting a male more than aged 15 years, it was for him to have proved the custom. He argued that the adoption deed was registered. But the registration itself will not establish the adoption. It only gives rise to presumption. The trial Court has very clearly held that because of the presumption, rebutting the validity of the adoption was on :9: the plaintiff. He examined witnesses, who all consistently deposed that they did not know about the adoption at all. He argued that even after execution of the adoption deed, it was not acted upon. The plaintiff came to know about adoption only after the death of Kotrawwa, when he made an application to the Tahsildar based on the judgment in his favour in the earlier suit to get the entries transferred to his name. When the defendant No.1 took up a specific plea that the adoption was valid because of custom permitting him to be given in adoption even though he was aged more than 15 years, he should have placed cogent evidence before the Court to prove the custom. The defendant No.1 failed utterly to prove the custom. The First Appellate Court rightly rejected the defendants' contention and decreed the suit. But the First Appellate Court has without giving any reasons, reversed the judgment of the trial Court.
6. On perusing the judgment of the trial Court, it becomes very clear that it has given valid reasons for disbelieving the adoption. But the First Appellate Court for reversing the judgment of the trial Court has given the reasons that the defendant No.1 acted upon the adoption. His name was entered in the revenue records during the life : 10 : time of Kotrawwa. The adoption deed came into existence in the year 1965. Exs.P-14 to 15 and 20 to 22 show that defendant No.1's name was entered in the revenue records in respect of the properties in the year 1974-75 itself. The father's name was also written as Kotraiah S/o. Rudraiah. Since Rudraiah was the husband of Kotrawwa, it can be said father's name might have been shown like that.
7. It appears that the First Appellate Court has mis- directed itself in upholding the validity of the adoption basing its reasons only on the entries in the revenue records. When a civil suit is instituted questioning the validity of the adoption and when the defendant takes a stand that his adoption was valid because the community to which he belonged permitted the adoption of a boy aged more than 15 years, the burden was on him to prove the custom. The evidence on record shows that there is no evidence at all. Rather the evidence placed by the plaintiff shows very clearly that nobody in the village had the knowledge that the defendant No.1 had been adopted by Kotrawwa. Very importantly, one of the witnesses P.W.2 whose presence is necessary in all the religious functions of the community, has stated that he never attended any ceremony arranged in : 11 : relation to adoption of defendant No.1. So the evidence on record disproves adoption. Then Section 11 of the Act states very clearly that the conditions as per (i) to (vi) must be complied with for a valid adoption. Section 11 of the Act contains six conditions, which are to be complied with to uphold the validity of adoption. Clause (iv) pertains to adoption of a male by a female. It states that if adoption is by a female and a person to be adopted is a male, the adoptive mother is atleast 21 years elder than the person to be adopted. In this case Ex.P-30 shows that the date of birth of defendant No.1 is 03.12.1944 and the adoption took place in the year 1965. Therefore, he had completed 21 years of age. This adoption is clearly against Section 11 of the Act. Section 11 of the Act is a mandatory provision. There may be a custom for adopting a boy or a girl more than 15 years. If there is no clear age gap of 21 years, such an adoption cannot be recognised in the eye of law. The First Appellate Court has not noticed this mandatory requirement of law while reversing the judgment of the trial Court. Therefore, it has to be now concluded that the First Appellate Court has committed an error in law. For this reason, the judgment of the trial Court has to be upheld and consequently, the following :
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ORDER Appeal is allowed.
The judgment of the First Appellate Court in R.A. No.61/1997 dated 28.02.2005 is set aside. The judgment of the trial Court in O.S. No.136/1989 dated 23.07.1997 is restored.
Sd/-
JUDGE VB/hnm