Karnataka High Court
Sadashivayya Irayya ( Veerayya) vs Prabhayya on 19 July, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 19TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
RSA NO.1537 OF 2007
BETWEEN:
SADASHIVAYYA W/O IRAYYA (VEERAYYA)
HIREMATH, AGE : 69 YEARS,
OCC : RETIRED TEACHER, R/O.SHIRUR,
TALUK : BAGALKOT.
PIN - 587 152. ...APPELLANT
(By Sri V.R.DATAR, ADV. )
AND:
PRABHAYYA SON OF
BASAYYA GANACHARI @ SARGANACHARI,
AGE : 42 YEARS, OCC : AGRICULTURIST,
R/O.MUCHAKHANDI, TALUK : BAGALKOT,
PIN - 587 101. ... RESPONDENT
(By Sri.BASAVARAJ GODACHI & Sri.P T THOMAS FOR
C/RESPONDENT)
****
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 05/03/2007 PASSED IN
RA.NO.157/2005 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-II, BAGALKOT, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
29/10/2005 PASSED IN O.S.NO.205/2003 ON THE FILE OF THE
ADDL.CIVIL JUDGE (JR.DN) BAGALKOT.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This is a plaintiff's second appeal assailing the judgment and decree in R.A.No.157/2005 dated 05.03.2007 by the Fast Track Court No.II, Bagalkot, affirming the judgment and decree passed by the Addl. Civil Judge (Jr.Dn.) dated 29.10.2005, passed in O.S.No.205/2003.
2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
3. The appellant is the plaintiff who filed the suit seeking declaration of title over the suit schedule property and consequential relief of injunction, restraining the defendant from interfering with his possession and enjoyment of the same. It is the case of the plaintiff that the suit schedule property originally belonged to Adivemma who was legally married to him in the year 1957 when she was serving as a teacher. That the suit -3- schedule property originally belonged to Adivemma's mother and she had gifted the same to Adivemma who died on 04.04.2003 leaving behind the plaintiff as the sole heir. That the defendant was a distant relative of his deceased wife Adivemma, who on the basis of an invalid adoption deed was trying to interfere with the suit schedule property and therefore, the suit was filed seeking the relief of declaration and injunction.
4. After receipt of suit summons and notice from the trial court, the respondent/appellant appeared and filed the written statement contending that the suit schedule property originally belonged to Adivemma's mother Smt.Channawwa who was the grant-mother of the defendant. That after her death, suit property was inherited by her daughter Changallawwa who is the natural mother of Adivamma and the adoptive mother of defendant. That he was given in adoption to Changalawwa and her husband on the basis of a registered adoption deed dated 28.1.1983 as per the customs and traditions -4- prevailing in the community. After the death of his adoptive father Veerabhadrayya, Changalawwa and the defendant were living together. That his sister Adivemma was a primary school teacher who was not married and she died on 4.4.2003 and after her death, he being the only surviving member of the family, had succeeded to the suit schedule property under Section 15 of the Hindu Succession Act, 1956 as a maternal legal heir. It was denied that the plaintiff was the husband of the deceased Adivemma since there was no marriage between them He, therefore, sought for dismissal of the suit.
5. On the basis of the aforesaid pleadings, the trial court framed the following issues for its consideration:
1) Whether plaintiff proves that he is absolute owner of suit schedule property by virtue of succession?
2) Whether plaintiff is entitled for permanent injunction as sought for?
3) Whether plaintiff is entitled for permanent injunction as sought for?
4) Whether defendant proves that he is brother of deceased Adivemma by virtue of adoption deed -5- dated 28.1.1983. Hence, he succeeded the suit property?
5) Whether defendant proves that suit property was sthridhana property of deceased Adivemma?
6) Whether defendant proves that this court has no pecuniary jurisdiction as suit property exceeds the jurisdiction of this court?
7) What order or decree?
6. In support of his case, the plaintiff examined himself as PW.1 and other witnesses as PWs.2 and 3 and produced five documents as Exs.P1 to P5. While the defendant let-in his evidence as DW1 and that of two other witnesses as DWs.2 and 3 and produced nine documents which were marked as Exs.D-1 to D9. On the basis of the said evidence, the trial court answered Issue Nos.1 to 3 and 6 in the negative, Issue Nos. 4 and 5 in the affirmative and dismissed the suit of the plaintiff with costs.
7. Being aggrieved by the said judgment and decree, the plaintiff preferred appeal in R.A.No.157/2005 before the First Appellate Court, which framed the -6- following points for its consideration after hearing both sides.
i) Whether the plaintiff/appellant proves that deceased Adivemma is his legally wedded wife and after her death he succeeded to the suit house property as her legal heir, so he became absolute owner and in possession of the suit house property?
ii) Whether the defendant/Respondent proves that he is the brother of deceased Adivemma by virtue of the adoption deed dated 28.1.1983, hence he succeeded to the suit house property? Further proves that the suit property is the Stridhana property of deceased Adivemma?
iii) Whether the plaintiff/appellant proves that the findings recorded by the trial court on the issues are perverse and illegal, hence the impugned judgment and decree passed by the court below is not sustainable in law and the same is liable to be set aside?
iv) What order?
8. The First Appellate Court answered Point Nos.1 and 3 in the negative and point No.2 in the affirmative and dismissed the appeal confirming the judgment and decree of the trial court. It is against the said concurrent -7- judgment of the courts below that the plaintiff has filed this appeal.
9. I have heard the learned counsel for the appellant. There is no representation on behalf of the respondent.
10. Learned counsel for the appellant has raised two contentions before this court. In the first place, he submitted that both the courts below were not right in coming to a conclusion that there was no marriage between the plaintiff and deceased Adivemma. He submitted that the evidence of PWs.1, 2 and 3 was sufficient to come to the conclusion that there was indeed a marriage between the plaintiff and Adivemma, which took place in the year 1957. Since Adivemma was suffering from certain diseases, she had given consent to the plaintiff to remarry. He had therefore married one Gangavva in the year 1964. He stated that the second marriage of plaintiff with Gangavva would not come in the way of succeeding to the suit schedule property as a legal -8- representative of Adivemma under the provisions of the Hindu Succession Act, since she was his first wife. He, therefore, submitted that the courts below were not right in coming to a conclusion that there was no marriage at all between the plaintiff and Adivemma. He also submitted that there was no specific issue formulated with regard to marriage between the plaintiff and Adivemma and therefore, the evidence in that regard has not been let-in as such.
11. His second contention is with regard to the validity of the adoption dated 28.1.1993 under a registered adoption deed. It was contended that even if for the sake of argument, it is presumed that the adoption had taken place, the same was invalid having regard to the fact that the respondent was twenty years of age at the time of adoption and under Section 10 of the Hindu Adoption and Maintenance Act, 1956, (herein after refused to as the Act), a person can be adopted only if he is below the age of fifteen years, unless there is a custom or usage -9- applicable to the parties, which permits persons who have completed the age of fifteen years being taken in adoption.
In the instant case, there is no proof of any such custom or usage which should have permitted the defendant to be adopted and therefore, in the absence of there being any proof in that regard, the adoption itself is invalid. In this contention also it has been stated that there was no issue focussing on the validity of adoption as such. Therefore, the trial court has misled itself in dismissing the suit and that the first Appellate Court has also simply dismissed the plaintiff's appeal.
12. Having heard the learned counsel for the appellant and on perusal of the material on record as also the lower court records, it is noted that it is not in dispute that the suit schedule property originally belonged to Chennavva the grand-mother of Adivemma. On her demise, the property was inherited by Changalavva the mother of Adivemma. She had made a gift deed in favour of Adivemma who was the owner in possession of the suit
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schedule property. The bone of contention between the parties is that the plaintiff-appellant seeks to succeed to the suit schedule property on the premise that he is the husband of Adivemma who had married her in the year 1957. Whereas, the respondent, claiming to be the brother of deceased Adivemma has sought to lay a claim on the suit schedule property on the basis of the adoption dated 28.1.1983 made by Adivemma's mother Changalavva as the legal heir of Adivemma, who according to the defendant had not married and had died without any heir, except the defendant. It is in this background that the question as to whether the plaintiff has proved his marriage to deceased Adivemma and as to whether the defendant has proved his adoption to Changalavva thereby being a brother of deceased Adivemma is competent to succeed to the suit schedule property has to be examined.
13. In this regard, the plaintiff has let-in evidence as PWs.1 and two other witnesses as PWs.2 and 3. In the evidence, it has been categorically recorded that the
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plaintiff had married one Gangavva in the year 1964 and from her had three sons and a daughter. As far as his marriage to Adivemma is concerned, in the cross- examination it has been admitted by the plaintiff that there is no document produced neither the marriage invitation was produced nor any other document. Further having regard to the fact that both Adivemma as well as plaintiff were serving as school teachers, in none of the service registers their names were entered, i.e., in the Service Records of Adivemma, the name of the plaintiff was not entered as a nominee. On the other hand, in the service record of the plaintiff, the name of Gangavva was entered as the nominee being the wife of the plaintiff. Both the courts below have weighed the evidence of PWs.1 to 3 and have come to a conclusion that the plaintiff had failed to prove his marriage with Adivemma. The said concurrent findings of the courts below, based on the weighing of evidence let-in by the plaintiff, in my view would not call for any interference in this appeal.
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14. On the other hand, the question with regard to the validity of adoption has also to be considered. Even though the plaintiff would not really have concern as to who succeeded to the property if the plaintiff has failed to establish his marriage with the respondent. Since both the courts below have considered the evidence let-in in that regard, it would be necessary to consider this aspect also. Ex.D-4 is the deed of adoption which is a registered document under which the respondent is said to have been adopted by Changalavva, the mother of Adivemma. The contention of the counsel for the appellant is that having regard to Section 10 of the Act, the adoption was invalid since the respondent was twenty four years of age at the time of adoption and there was no material produced to show that there was indeed a custom or usage applicable to the parties which permitted a person who had completed the age of fifteen years be taken in adoption. In this regard what has to be looked into is Section 16 of the Act, which speaks about presumption as to registered
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document relating to adoption. The said Section reads as follows:
"16. Presumption as to registered documents relating to adoption:- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
15. Therefore, the said Section raises a presumption in favour of validity of adoption. The burden would be caused on the person who assails the adoption to prove that the adoption has been valid. In the instant case, the contention raised by the learned counsel for the appellant is that the respondent was over fifteen years of age at the time of adoption and the respondent has not proved any custom or usage which would have permitted him being taken in adoption though he was over fifteen years of age. In this context, having regard to Section 16
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of the Act, the presumption of the validity of the respondent had to be rebutted by the appellant by letting in evidence to show that there was no custom or usage applicable to the parties which would have permitted the respondent being taken in adoption though he was over fifteen years of age, on the other hand the defendant - respondent has produced Ex.D-7 which is a registered document to show that there was such a custom prevailing enabling person above the age of fifteen years being taken in adoption. Therefore, the plaintiff has failed to prove that the adoption is invalid.
16. That apart, a common contention raised with regard to these two issues by the learned counsel for the appellant is that the trial court has not framed proper issues with regard to the factum of marriage between the plaintiff with Adivemma and regarding the validity of the adoption. The issues have been extracted above. The right to succeed to Adivemma's property by the plaintiff would arise only if he is able to prove that he is the legal
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heir of Adivemma which could have been only by his marriage with Adivemma. Similarly, issue No.4 deals with the right of the defendant to succeed to the property by virtue of adoption deed dated 21.1.1983. The parties have understood their respective cases and have let in evidence accordingly. Even in the absence of there being any specific issue as to whether the plaintiff was indeed married to Adivemma, that would not come in the way of affirming the decisions of the courts below as the appellant has failed to prove his marriage to Adivemma. Similarly he has not been able to prove that the adoption of the respondent is invalid. Therefore, there is no substantial question of law, which arises in this appeal. Appeal is dismissed. Parties to bear their respective costs.
Sd/-
JUDGE S*