Karnataka High Court
Channabasappa A/F Muppayya Hiremath vs Veerayya Ulavayya Hiremath (Since ... on 21 August, 2007
Equivalent citations: ILR2007KAR4381, 2008(3)KARLJ283, 2008 (1) ABR (NOC) 128 (KAR), 2008 A I H C 319, 2008 (1) ABR (NOC) 128 (KAR.) = 2007 (6) AIR KAR R 307, 2007 (6) AIR KAR R 307, (2008) 3 KANT LJ 283
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 2086
1. The first defendant before the trial Court is the appellant heroin and he is aggrieved by the judgment and decree passed by the lower Appellate Court in R.A.No. 15/1991, by which, the learned Judge of the lower Appellate Court confirmed the judgment and decree passed by the trial Court in O.S.No. 42/1985, allowing the suit filed by the respondents-plaintiffs for declaration and permanent injunction.
2. The brief facts shorn out of unnecessary details are to the effect that the plaintiffs 1 to 3 being the fourth son, third son, and fifth son of original porosities Veerayya and 4th plaintiff being one of the grand sons of first son of above said Veerayya filed the suit against the appellant herein (adopted son of Muppayya- the sixth son of Veeraiah and the second defendant-being the son of first son of Veerayya, for declaration and permanent injunction in respect of the suit properties by claiming that the plaintiffs and the second defendant were the only legal heirs entitled to succeed to the property of Muppaiah and it was the specific case of the plaintiffs that Muppaiah died issue less and the first defendant was not the adopted son of said Muppaiah because, Muppaiah and the first defendant belonged to different caste and further there was no custom of taking in adoption a person aged more than 15 years and that too a married person and therefore, adoption of the first defendant (appellant herein) by Muppaiah was not valid in law and the plaintiffs having become the legal heirs of deceased Muppaiah are therefore entitled to the relief sought for by them. The said suit was contested by the appellant herein by taking up the stand that the appellant is the adopted son of late Muppaiah and there is custom and usage of taking any person aged more than 15 years in Page 2087 adoption and also married parsons in Lingayath community and the said custom has been prevailing for more than 100 years and as such, the adoption of the appellant is valid and legal and following the death of Muppaiah, the first defendant being the sole legal heir has been in possession and enjoyment of the suit properly and he accordingly prayed for dismissal of the suit the second defendant was placed ex-parte before the trial Court.
3. Based on the pleadings of the parties, the learned trial Judge framed as many as six issues and answered issues 1, 2, 4, and 5 in the affirmative and issue No. 3 concerning adoption of the appellant herein by the deceased Muppayya, in the negative and additional issues 1 and 2 ware also answered in the affirmative. Consequent to the said finding, after appreciating the evidence let in by the parties, the trial Court decreed the suit of the plaintiffs.
4. Aggrieved by the aforesaid judgment and decree passed in O.S.No. 42/1985, the first defendant preferred Regular Appeal in R.A.No. 15/1991 and the lower Appellate Court confirmed the judgment decree passed by the trial Court and dismissed the appeal. Hence, this second appeal by the first defendant.
5. I have heard the learned Counsel for the parties and examined the entire material on record.
6. It has to be mentioned at this juncture that this matter is being heard after remand by the Apex Court in Civil Appeal No. 1419/1999 by which, the Apex Court set-aside the judgment passed by this Court in R.S.A.No. 653/1993 on the ground that no substantial question of law had been framed while disposing of the said R.S.A. and therefore, the Hon'ble Supreme Court remanded the matter to this Court to dispose of the second appeal alter framing substantial question of law.
7. As directed by the Apex Court, this Court has framed the substantial questions of law as under:
1) Whether the suit on hand is maintainable without seeking declaration that the adoption invalid?
2) Whether the suit on hand is within limitation or whether it is barred by time as the suit is filed after 3 years, the prescribed period of limitation under Article 58 of the Limitation Act?
3) Whether both the Courts below are justified in law in holding that the person belonging to Jangam community cannot adopt other person belonging to other subject or Veerashiva community?
4) Whether both the Courts below are justified in law in ignoring the effect of registered deed of adoption (Ex.P3) as par Section 16 of the Hindu Adoption and Maintenance Act?
5) Whether both the Courts below are justified in holding that the custom and usage of adopting the person of aged more than 15 years is not proved particularly when it is specifically deposed by the D.W.1 to 3?
Page 2088
6) Whether the appellate Court is justified in decreeing the suit particularly when the plaintiffs advocate himself canvased that defendant No. 1 is the natural born son of Muppayya?
7) Whether both the Courts below are justified in ignoring the presumption arising out of revenue records which are standing in the name of appellant as per Section 133 of K.R. Act?
8. The learned Counsel for the appellant Shri F.V. Patil submitted that the entire case of the parties rest on the validity and legality of adoption deed Ex.D-3 produced before the trial Court and according to the learned Counsel, as the said adoption deed Ex.D3 is a registered document, the presumption will have to be raised in accordance with Section 16 of the Hindu Adoption and Maintenance Act, 1956 (the 'Act' of 1956) and as the adoption deed Ex.D3 was newer challenged by the plaintiffs before any Court of law and as the adoption has been done in compliance with the provision of the Act, of 1956, the adoption of the appellant herein by late Muppaiah stood proved and as such, both the Courts below have committed serious error in not appreciating the evidence placed lay the parties and particularly the evidence of the defendants concerning the adoption and execution of the adoption deed Ex.D3. In this connection, the learned Counsel took me through the evidence of D.Ws.1 to 3 to submit that the said witnesses have spoken in detail about the custom and usage prevailing in the Lingayath community and also to the ceremonies held when adoption took place and when the evidence of these witnesses have not been seriously challenged in the cross-examination, and hence the appellant has proved his adoption by Muppaiah in accordance with law and as such, the view taken by tooth the Courts below is contrary to the provisions of Hindu Adoption and Maintenance Act, 1956, and as the Courts below have recorded a perverse finding despite positive evidence being placed on behalf of the appellant herein, the findings recorded by the Courts below require interference by this Court in second appeal.
9. It was further submitted that though the plaintiffs did question the adoption deed by filling a suit in O.S.No. 17/1973 before the Munsiff Court at Renebennur, wherein the appellant herein and his adopted parents Muppaiah and Muppaiah's wife were the defendants, the plaintiffs withdrew the said suit and later on plaintiffs filed the present suit for declaration and permanent injunction and therefore, these events also go to show that the adoption deed Ex.D3 remained unchallenged through out and as such, when adoption deed having not been declared to be null and void, the present suit was not maintainable. Once, the validity of adoption was not challenged by the plaintiffs, the presumption under Section 16 of the Act of 1956 will have to be drawn and therefore, the findings of the lower Appellate Court confirming the order of the trial Court is contrary to the well established position in law as well as contrary to the provisions of the Act of 1966 and hence, the suit of the plaintiffs ought to have been dismissed at the threshold. In support of his submission, the learned Counsel referred to various provisions of Page 2089 the Act of 1956, and also to the decisions reported in 1982(1) KLJ 210, ILR 2005 KAR 3293, and AIR 1991 SC 1180.
10. On the other hand, the learned Counsel Shri Shankarappa for the respondents-plaintiffs contended that the findings recorded by the Courts below do not call for any interference in as much as having regard to the evidence placed by the plaintiffs, the trial Court as well as the lower Appellate Court have comes to the conclusion that the adoption deed Ex.D3 is not valid in the eye of law and as the appellant herein was aged more than 15 years and was a married person, his adoption by Muppaiah cannot be validated in law. It was further submitted by referring to evidence let in before the trial Court that the appellant has falled to establish, that there was a custom or usage in the Hindu community to adopt a person aged more than 15 years and also a married person. It was the further submission of the learned Counsel for the respondents that, the required ceremonies wore not performed namely Dattaka Homa etc., and the adoption was not preceded by all the ceremonies required for adoption in the Lingayath community. Moreover, the appellant herein does not belong to the caste of Muppaiah and for all these reasons, the findings of the trial Court and the lower Appellate Court is in accordance with the evidence on record and in conformity with the provisions of the Act of 1956.
11. One other contention putforward by the learned Counsel for the respondents is that the adoption deed Ex.D3 does not disclose that the requirement of Section-16 of the Act of 1956 has been complied and as the mother of the appellant herein has not signed the adoption deed to the effect that she is giving her child in adoption to Muppaiah, the view taken by both the Courts below on this aspect cannot be termed as erroneous or perverse in nature nor can it be said as contrary to the legal position. In support of his submission, the learned Counsel for the respondents place reliance on the decisions reported in AIR 1965 ORISSA 96, AIR 2004 GUJRATH 54, AIR 1973 SC 1102, AIR 1952 MYSORE 40, AIR 1960 CULCUTTA 494, and AIR (36) PRIVI COUNCIL 18, to contend that the adoption deed Ex.D3 cannot be upheld in law and therefore, the appellant has failed to establish that he is the legal hair of the deceased Muppaiah and consequently, the judgment of the lower Appellate Court confirming the order of the trial Court requires no interference by this Court.
12. In the light of the submissions made as above and taking note of the decisions cited by the respective sides, the one and the only factor upon which the questions of law framed by this Court revolves is as to whether the Courts below were justified in holding that the appellant has failed to establish that he is the adopted ton of Muppaiah.
13. It is not in dispute that the appellant herein has taken up the contention before the trial Court that he is the adopted son of Muppaiah. In order to prove that important fact, the appellant has produced Ex.D3. The said document it a registered document, is also not in dispute. The learned Page 2090 Counsel for the parties also place before me for perusal Ex.D3. The trial Court has also excerpted the contents of adoption deed Ex.D3 in the course of its judgment. A plain reading of the said document reveals that the adoption of the appellant herein took place on 23.6.1972 as per the custom of the adoptive father. Ex.D3-the adoption deed records the said event and the document is dated 20-7-1972.
14. A farther look at the document EX.D3 also reveals that it has been signed not only by the adoptive father Muppaiah but it also bears the thumb impression of mother of the appellant herein. Although, learned Counsel for the respondents disputed the signature of mother of the appellant herein, I am unable to agree with him because not only the said thumb impression has been mentioned as that of Malligewwa, mother of the appellant herein but witnesses examined on behalf of the appellant have also confirmed the thumb mark of the mother of the appellant. Ex.D3 also mentions it clear that the mother of the appellant herein gave her son in adoption to Muppaiah out of her own happiness and with her full consent. Therefore, these facts emerging from the document Ex.D3 gives rise to the inference that the adoption took place with the consent of the mother of the appellant herein and the taker, that is Muppaiah, has also signed the said document. One other factor, which is not in dispute, is that the said adoption deed has been registered. Thus, requirement of Section 16 of the Act, 1956, are fully met. A presumption therefore will have to be drawn that the adoption of the appellant hat been made in compliance with the provisions of the Hindu Adoption and Maintenance Act. No evidence has been placed by the respondents to disbelieve the said adoption deed Ex.D3.
15. Coming to the contention of the learned Counsel for the respondents that a person aged more than 15 years and that too a married person could not have been adopted, I do not find the said contention also carrying enough force behind it. This is because Sub-section 4 of Section 10 of the Act of 1956 provides that though the person to be adopted should not have completed the age of 15 years, yet, the said clause also provides that a person aged above 15 years can also be adopted if there is a custom or usage applicable to the parties which permits persons who have completed the age of 15 years being taken in adoption. Likewise, even with regard to taking a married person in adoption, Sub-section 3 of Section 10 permits a married person to be taken in adoption if there is a custom or usage applicable to the parties in that regard. In the instant case, the evidence let in by the defendants clearly go to show that there is a customs or usage to take in adoption even a married person and this custom has been in vogue for long time and in view of such evidence placed on record, I do not find any merit in the submission made by the learned Counsel for the respondents that the appellant could not have been adopted by Muppiah.
16. In this regard, it very pertinent to refer to the decision of the Apex Court in the case of Kondiba Rama Papal alias Shirke(dead) by his heirs and Lrs Page 2091 and Anr. v. Narayan Kondiba Papal . In the course of the decision in the said case, the Apex Court has observed thus:
At the time when the plaintiff was adopted be was about 22 years old, but even though there is a difference of opinion between various schools as to the age when a boy may be adopted, so far as the Bombay State is concerned the position is well settled in view of more than one judicial decision. As pointed out in Mulla's Hindu Law, 14th Edition at page 550 in the Bombay State, a person may be adopted at any age though he may be older than the adopter and though he may be married and have children. The adoption is not valid although it look place after the thread ceremony of the boy was performed. Thus the custom it judicially recognised in the Bombay State as regards adoption of a child at any stage. Once the custom is judicially recognised, it is not required to be independently proved in subsequent cases. The plaintiff and the defendant No. 1 belonged to the area which was part of the old Bombay State and according such a custom prevailed amongst them as regards adoption of a child at any age. Even independently of this position, in the old Bombay State, evidence was led of two instances of adoption of persons belonging to the same caste as the plaintiff where a child was adopted at the age above 15 years after the Act came into force. Thus, in my opinion, in view of the settled position in law as judicially recognised, if the factum of the adoption is established its validity cannot be challenged on the ground that the adopted child had completed the age of 15 years at the time of his adoption.
17. Therefore, having regard to the above position in law, I am unable to agree with the submission made by the learned Counsel for the respondents that the appellant herein could not have been adopted by late Muppaiah. As the adoption deed Ex.D3 is a registered document, decision of a Division Bench of this Court in the case of Narasimhaiah Setty v. Govindappa Naidu and Ors. 1982 (1) KLJ 210 also will have to be taken note of. In the aforesaid decision, it has been observed thus:
Ordinarily it is for the plaintiff to prove that he has been validly adopted satisfying all statutory requirements. But where there is a registered adoption deed, the court has to presume under Section 16 of the act that the adoption has been made in compliance with the act, unless and until it is disproved. It would then be for the challenging party to prove that the adoption was not made or was invalid.
18. The decision rendered by this Court in the case of Sarojamma and Ors. v. Smt. Neelamma and Ors. is to the effect that once a child is given the status of legitimacy, in Court's view, for all purpose, such a child is considered on par with the child which is born out of wed-lock which is valid in law and is not affected by any stigma and therefore, such children are entitled to shave in the property.
Page 2092
19. In the light of the foregoing position in law and also taking into account the undisputed facts and the contents of Ex.D3, as well as evidence of D.Ws.1 to 3 and also P.W.1, I am of the considered opinion that the adoption of the appellant by Muppaiah has been proved in accordance with law and the said adoption meets requirement of provisions of the Hindu Adoption and Maintenance Act, 1956. Both the Courts below were totally in error in not appreciating the Adoption Deed Ex.D3 in proper perspective. Merely because the appellant happens to be a person aged 15 years and a married person at the time of adoption, the said adoption could not have been held to be invalid when there was sufficient evidence placed before the trial Court to show that the said custom prevails in Lingayath community to which both the appellant and late Muppaiah belong.
20. As regards the submission made by the learned Counsel for the respondents that the name of the natural father of the appellant continued in the records even after adoption having been taken place aft per Ex.D3 and therefore, the adoption deed is invalid in the eye of law to concerned, the submission of the learned Counsel for the appellant that as the records stood earlier in the name of natural lather of the appellant, the authorities concerned did not permit the appellant to get the loan by using the name the of adoptive father as there was litigation pending before the Tahasildar with regard to validity of adoption and under these circumstances, the appellant had no other go than to keep the name of natural father in the records until the issue concerning adoption is decided finally. In view of the said submission made by the learned Counsel for the appellant, I do not find any merit in the grounds urged by the learned Counsel for respondents in this regard.
21. As for as the ground of limitation is concerned, it has to be mentioned that the adoption took place in the year 1972 and though the plaintiffs filed the suit in O.S.No. 17/1973, the same was withdrawn on 25.11.1978 and the prevent suit was filed on 22.3.1979. If we reckon the period from the date of adoption i.e., from 22.6.1972 and recording of the said event under Ex.D3 on 20.7.1972, the suit filed beyond three years is therefore, barred by limitation by virtue of Article 58 of the Limitation Act, being applicable to the case on hand.
22. One other contention put forward by the learned Counsel for the respondents, which also will have to be referred to in this connection, is that appellant being the son of Muppaiah and Malligewwa, he could not have been adopted toy Muppaiah. It is submitted in this regard by the learned Counsel for the respondents that the appellant herein is the natural son of Muppaiah and Malligewwa and therefore, the appellant could not have been adopted by the own lather. As far as this submission is concerned, the learned Counsel for the appellant contended that it was not the case of the appellant before the trial Court or the appellate Court that he was the natural son of Muppaiah and Malligwwa, but the specific case of the appellants that he to the adopted son of Muppaiah. In view of the said submission made and the stand taken by the appellant in the written Page 2093 statement to the said effect, the argument advanced by the learned Counsel for the respondents in this regard also does not help the case of the respondents any further. As far as the decisions referred to by the learned Counsel for the respondent are concerned, it has to be mentioned that the said decisions were rendered to in the light of the facts and circumstances of the cases involved therein and therefore, as the case on hand is entirely different in nature, in as much as Ex.D3 being the registered adoption deed not being disproved by the respondents and not being challenged in any Court of law as rightly contended by the appellant's Counsel, the suit itself could not have been held to be maintainable and though the respondents did file the suit in O.S.No. 17/2003 questioning the validity of the adoption for the reasons best known to the respondents, they withdrew the said suit and thereby question concerning the validity of the adoption was never gone into in any further suit. I therefore, hold that the findings recorded by the Courts below are not only perverse but they also do not stands to the test of law particularly having regard to the provisions of the Act of 1956 and Section 16 in particular and the law laid down by the Apex Court in the decision reported in AIR 1991 SC 180 and also of the Court in Narasimhaiah Shetty's case.
23. For the foregoing reasons, I answer the substantial questions of law in the negative and consequently, the appeal will have to be allowed by setting aside the judgments of the Courts below and hence, I pass the following order:
ORDER The appeal is allowed. The judgment and decree passed by the lower Appellate Court as well as that of the trial Court stands set-aside and the suit of the plaintiffs also stands dismissed. No costs.