Karnataka High Court
Sangappa @ Sangamesh S/O Irabasappa ... vs Smt. Mangala W/O Subhas Angadi on 23 October, 2024
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NC: 2024:KHC-D:15323
CRP No. 100120 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO. 100120 OF 2024
BETWEEN:
SANGAPPA @ SANGAMESH
S/O IRABASAPPA MALI,
AGE: 56 YEARS,
OCC: PVT. SERVICE,
R/O: RENUKA SUGARS FACTORY,
KOKATUNR, TQ: ATHANI,
DIST: BELAGAVI.
...PETITIONER
(BY SRI. MRUTYUNJAYA.S.HALLIKERI, ADVOCATE)
AND:
SMT. MANGALA
W/O SUBHAS ANGADI,
(SINCE DEAD BY LRS ALREADY ON RECORD)
1. SMT. MALA
W/O RAJASHEKHAR ANGADI,
AGE: 56 YEARS, OCC: HOUSEWIFE,
R/O: 860, SONIA GANDHI NAGAR,
Digitally signed
by BHARATHI H
M
BIDNAL, TQ: HUBBALLI, DIST: DHARWAD.
Location: HIGH
BHARATHI COURT OF
HM KARNATAKA 2. MOHAN
DHARWAD
BENCH
Date: 2024.11.06
S/O PAVADEPPA ANGADI,
11:28:52 +0530
AGE: 69 YEARS, OCC: PENSIONER,
R/O: LIG 291, 11TH CROSS, NAVANAGAR,
TQ: HUBBALLI, DIST: DHARWAD.
3. VINOD S/O SUBHAS ANGADI,
AGE: 37 YEARS, OCC: PVT. SERVICE,
R/O: ACHCHAVVAN COLONY,
UNKAL, TQ: HUBBALLI,
DIST: DHARWAD.
4. NIRMALA
D/O SUBHAS ANGADI,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O: ACHCHAVVAN COLONY,
UNKAL, TQ: HUBBALLI, DIST: DHARWAD.
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NC: 2024:KHC-D:15323
CRP No. 100120 of 2024
5. NAGARAJ
S/O SUBHAS ANGADI,
AGE: 32 YEARS, OCC: PVT. SERVICE,
R/O: ACHCHAVVAN COLONY,
UNKAL, TQ: HUBBALLI, DIST: DHARWAD.
6. SHRUTI
D/O RAJASHEKHAR ANGADI,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: 860, SONIA GANDHI NAGAR,
BIDNAL, TQ: HUBBALLI, DIST: DHARWAD.
7. RAJESHWARI
D/O RAJASHEKHAR ANGADI,
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O: 860, SONIA GANDHI NAGAR,
BIDNAL, TQ: HUBBALLI, DIST: DHARWAD.
8. LAXMI
D/O RAJASHEKHAR ANGADI,
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O: 860, SONIA GANDHI NAGAR,
BIDNAL, TQ: HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
THIS CRP FILED IS UNDER SEC.115 OF CPC, 1908, PRAYING
TO SET ASIDE THE ORDER DATED 01.08.2024 PASSED ON IA NO. 4
IN OS NO.90/2022 BY THE HON'BLE COURT OF SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, BILAGI, VIDE ANNEXURE-
F, AND HEREBY REJECT THE PLAINT, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed in I.A.No.4 in O.S.No.90/2022 dated 01.08.2024 by the Senior Civil Judge and JMFC, Bilagi, petitioner/defendant No.1 is before this Court. -3-
NC: 2024:KHC-D:15323 CRP No. 100120 of 2024
2. The respondents herein who are the plaintiffs before the trial Court had filed the suit seeking the relief to declare that the plaintiffs and defendant Nos.2 to 8 are class 2 heirs of deceased Ravutappa and his wife and they have succeeded to his property and are absolute owners of suit schedule B lands, to declare that the alleged Registered Adoption Deed if any or adoption if any, in respect of defendant No.1 by deceased Ravutappa and his wife is created, illegal, null and void and to issue consequential relief of permanent injunction restraining defendant No.1 and his men from obstructing plaintiffs or defendant Nos.2 to 8 in peaceful possession in respect of suit schedule B lands.
3. Defendant No.1, who is the adopted son of deceased Ravutappa had filed an application under Order VII Rule 11 (a) and (d) read with Section 151 of CPC to reject the plaint. The main contentions of defendant No.1 are that under the provisions of Section 15 and 16 of the Hindu Adoption and Maintenance Act, 1956 the strangers like plaintiff as claimed by the plaintiffs in their plaint have absolutely no legal right, legal status and locus-standi to challenge the registered deed of adoption of another stranger and it is also stated that no -4- NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth. It is his case that it is a registered and public document and is in the knowledge of everyone and the adoption had taken place in the year 2003 cannot be questioned in a suit that is filed in the year 2022. As such, the plaint has to be rejected.
4. The trial Court by order impugned had rejected I.A.No.4 filed by defendant No.1. While dismissing the application, the trial Court had observed that as per the version of plaintiffs the cause of action arose in the year 2022 and it is a mixed question of law and fact which requires full fledged trial for adjudication of the same. It is further stated that the deceased was the absolute owner of the properties and as per the adoption, defendant No.1 has got absolute right over the suit properties. But that requires to be proved in the trial and cannot be adjudicated at this stage. The Court has also answered the case of the defendants that there is no cause of action. The Court observed that the plaintiffs have stated that the cause of action arose when the revenue officials orally told -5- NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 to bring the decree from the Court and stated about defendant No.1 and that while considering the application for rejection of the plaint, the plaint averments alone can be considered and not the contentions and defence taken by the defendants and the decisions relied by the plaintiffs apply to the facts of the case and accordingly dismissed the application filed under Order VII Rule 11 (a) and (d) read with Section 151 of CPC. Aggrieved thereby, defendant No.1 is before this Court.
5. Learned counsel appearing for petitioner/defendant No.1 had relied on the judgment passed by a Coordinate Bench of this Court in RSA No.200036/2014 dated 10.10.2023 in the case of Smt.Chandamma Chalageri Vs. Channaveer. He had relied on para Nos.29, 30 and 31 of the judgment which reads as follows:
"29. The question next would be, whether the sister of Neelamma had any locus standi to question the adoption, more particularly in a collateral proceedings? The defendant is none other than the sister of Neelamma who by filing written statement sought to dispute the validity of adoption making an allegation of fraud. The suit is by the adoptive son seeking for declaration that he is the adoptive son of Neelamma and invariably the defendant tries to dispute the same, which is not permissible in law.-6-
NC: 2024:KHC-D:15323 CRP No. 100120 of 2024
30. The words "unless and until it is disproved"
appearing at the end of the section makes out that the presumption which would be made under this Section would be rebuttable as held in Jaisingh's case stated supra, however, the burden of proving that the adoption deed was executed in consequence of fraud or undue influence, rests heavily on the party challenging the same and such document can be challenged in separate and not collateral proceedings. In the instant case, the defendant has not challenged the adoption deed before any Court of law, only by filing a written statement a contention has been taken that the adoption deed was executed in consequence of fraud and undue influence without there being any particulars in the pleadings as well as cogent evidence to that effect.
31. The Co-ordinate Bench of this Court in the case of Veerabhadraiah R.Hiremath vs. Irayya A.F. Basaiah Hiremath as stated supra, held that, except the genitive parents, adoptive parents and the adoptive son, others have no locus standi to question the validity of the adoption deed. The principle laid down by the Co- ordinate Bench of this Court is squarely applicable to the instant case."
6. Relying on this, learned counsel for the petitioner submits that submits that the plaintiffs cannot question the adoption. Then he has also relied on para No.15 of the judgment in RSA No.1488/2005 dated 02.09.2022 in the case of Sri.Kadappa Sattyappa Terani Vs. Sri.Siddappa Khandappa Terani and Others which reads as follows: -7-
NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 "15. The defendant takes a stand that the adoption deed was executed by playing fraud on Neelamma. The defendant, other than merely stating fraud in the written statement, has not given particulars regarding the plea of fraud, misrepresentation as envisaged under Order VI Rule 4 CPC. It is settled principles of law that any allegations as to fraud, intimidation, illegality, misrepresentation needs to be specifically pleaded. The written statement averments lack material particulars regarding "fraud" as contended by the defendant, in the absence of the same, any amount of evidence is impermissible. The defendant has thus failed to establish that the adoption by Neelamma was on account of misrepresentation or by fraud."
7. Learned counsel has also relied on para No.12 of the judgment of this Court in the case of Veerabhadrayya R Hiremath and Others Vs. Irayya A.F. Basayya Hiremath1 which reads as follows:
"12. But I am unable to accept the arguments advance by the Learned Counsel for the appellants for the following reasons:
The appellant admits the execution of the adoption deed taking the defendant in adoption by Basayya. According to the appellant the adoption deed as per Ex.D came into existence by playing fraud on deceased Basayya. According to him, Basayya died six years prior to the institution of the suit. It is also his case that he came to know of adoption of the defendant by Basayya 1 ILR 2006 KAR 1740 -8- NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 in the year 1979. The suit was filed in the year 1992. If Basayya died six years prior to the institution of the suit, in all probabilities Basayya was alive till 1986. If plaintiff had come to know of the adoption deed in the year 1979, if really adoption deed had been obtained by the defendant by playing fraud on Basayya, there was no difficulty for the appellant-plaintiff to request Basayya to challenge the adoption deed contending that the same was obtained by misrepresentation or fraud. But such an action has not been taken by the plaintiff, requesting Basayya to file a suit to challenge the adoption deed. Admittedly, the suit is filed six years after the death of Basayya and 13 years after coming to know of the adoption of the defendant by Basayya. In the normal circumstances, adoption can be challenged either by the natural parents of the boy or by the adoptive parents or by the child who has been given in adoption. But in the instance case, the plaintiff is a stranger to the defendant. If really, a fraud had been played on Basayya, it was for Basayya to file a suit for cancellation of the adoption. The very fact that the plaintiff had not requested Basayya to file a suit for cancellation on the ground that Ex.D1 had come into existence on account of the fraud played by Police-Patil of Astakatti village on Basayya, it is not open for the plaintiff to challenge the adoption of defendant, six years after the death of Basayya. In other words, this Court is of the opinion there is no cause of action for the plaintiff to file the suit."
8. Basing on this, learned counsel for the petitioner submits that a stranger to the adoption cannot question the -9- NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 adoption and when he has raised all these issues before the trial Court by filing an application under Order VII Rule 11 (a) and (d) of CPC, the trial Court ought to have considered the same. He submits that all these aspects can be ascertained by looking at the plaint alone and for that purpose, no other evidence is required. In spite of that, the trial Court has not looked into all these aspects and had dismissed the application.
9. Having heard the learned counsel for the petitioner, perused the entire material on record. It is the case of the plaintiffs that they are the class 2 heirs of adopted father of defendant No.1 and it is their case that they are in possession of the properties and for the first time in the year 2022, they came to know about the alleged adoption from the revenue department. According to the defendant, the deed is registered and it is in their knowledge and after 22 years, the same cannot be questioned and they have no locus to question it. Looking at the particular facts and circumstances of this case, the judgments which are relied on by the learned counsel for the petitioner will not come to the rescue of the petitioner and do not apply to the facts of the case. This is the case where the defendants are not admitting the adoption or they are alleging
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NC: 2024:KHC-D:15323 CRP No. 100120 of 2024 any fraud or any other things on such adoption. According to them, after the death of Ravutappa, they have been possession of the property and suddenly defendant No.1 claims that he is adopted and there is a registered deed and to decide all these issues, the evidence has to be let in and the facts can come to light only after a full fledged trial. It is always open for the defendant to raise all these issues before the Court. But at the threshold, all these things cannot be decided and there are several questions of facts involved in this Court. In the considered opinion of this Court, the trial Court had rightly dealt with the issues and dismissed the application and this Court finds no reasons to interfere with the order passed by the trial Court. Hence, this Court is passing the following:
ORDER i. Accordingly, the Civil Revision Petition is dismissed.
ii. All I.As. in this Civil Revision Petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI MEG LIST NO.: 1 SL NO.: 45