Karnataka High Court
Gangavva And Ors. vs Ningavva And Ors. on 30 January, 2008
Equivalent citations: ILR2008KAR1667, AIR 2008 (NOC) 2214 (KAR.) = 2008 (4) AIR KAR R 176, 2008 (6) ABR (NOC) 1027 (KAR.) = 2008 (4) AIR KAR R 176, 2008 (3) AJHAR (NOC) 1061 (KAR.) = 2008 (4) AIR KAR R 176, 2008 (4) AIR KANT HCR 176, 2008 A I H C 2906, (2008) 3 ICC 723, (2008) 2 HINDULR 135
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This is the defendants second appeal against the concurrent finding recorded by the courts below that the 3rd defendant has failed to establish that he is the adopted son of Sri Bharamagouda and that he has not perfected his title by adverse possession to the suit schedule properties and therefore plaintiffs are entitled to partition and separate possession of their legitimate share in the suit schedule properties.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The case of the plaintiffs is that the suit schedule properties belong to one Bharamagouda. He had two wives by name Gourawwa and Gangawwa. He also had a kept mistress by name Gourawwa, the 4th defendant in the suit. Gourawwa is no more. Bharamagouda died on 23.3.1970. The plaintiffs 1 & 2 are the daughters of Gourawwa. The second wife Gangawwa had two daughters by name Gangimalavva and Neelavva, who are the 2nd defendant and 3rd plaintiff. The 3rd defendant is the husband of the 2nd defendant and also the brother of the 1st defendant.
4. The grievance of the plaintiffs is that the defendants 1 to 3 in collusion with each other, have got entered the name of the 3rd defendant in the revenue records in respect of the suit properties belonging to Bharamagouda and the 3rd defendant is claiming to be the adopted son of the said Bharamagouda and on that basis he has taken loan from banks and societies on the securities of the suit properties and is denying the plaintiffs right to the properties. No ceremonies have been performed regarding adoption of the 3rd defendant. Therefore, they sought a declaration that they have got 3/5th share in the suit properties and also sought for partition and separate possession of their respective shares.
5. After service of summons, the defendants entered appearance. The 3rd defendant filed written statement contesting the claim of the plaintiffs. He did not dispute the relationship of the parties and the nature of the properties. He contended that he is the adopted son of Bharamagouda and he is the exclusive owner of the suit properties. He is enjoying the said properties for the last 29 to 30 years as owner without any interruption and therefore he has perfected his title by way of adverse possession. Bharamagouda died on 23.3.1970 and he has not left any property of his own, as such plaintiffs and defendants 1 & 2 do not have any right, title or interest in any manner over the suit properties.
6. The trial Court framed twelve issues. The 2nd plaintiff was examined as PW-1 and seven documents were produced and marked as Exs.P-1 to P-7. On behalf of the defendants, curiously the adopted son who contested the claim did not step into the witness box. Even the defendants 1 & 2 did not step into the witness box. It is the 3rd defendant's natural elder brother Basavanneppa Yellapur, who was examined as DW-1 and one attesting witness to the adoption deed by name, Ninganagouda Patil was examined as DW-2. DW-3 Basalingappa Golappanavar is one of the person who was said to be present at the time of adoption ceremony. 15 documents were produced which were marked as Exs.D-1 to D-15.
7. The Trial Court on appreciation of the aforesaid oral and documentary evidence on record, held that though the registered adoption deed is produced in the case as Ex.D-11, as it is not executed by the person giving the 3rd defendant in adoption, the presumption under Section 16 cannot be drawn. The 3rd defendant is shown to be aged 18 to 21 years on the date of adoption which prima facie shows he was not capable of being taken on adoption. The 3rd defendant did not plead any custom or usage applicable to the parties which permits persons who have completed 15 years being taken on adoption. The 3rd defendant did not step into the witness box. The 1st defendant did not step into the witness box. The evidence of DW-1 clearly shows that the first wife of Bharamagouda was alive on the date of adoption and she did not attend the adoption ceremony, thus her consent was not obtained. For the aforesaid reasons, it held that the adoption was not proved. Once the adoption is not proved, admittedly the relationship between the parties are not in dispute. Plaintiffs 1 to 3, 1st & 2nd defendants are all Class-I heirs who are entitled to equal share in the suit schedule properties. It held in so far as 4th defendant is concerned, that property bearing R.S. No. 50/3 was given towards her maintenance. During the pendency of the proceedings she died issueless and intestate, and therefore the suit property reverted back to the family and is also available for partition. It also held that though one of the items of the property stood in the name of the 3rd defendant, as admittedly the said property was acquired out of the joint family funds, it is also a joint family property and therefore the plaintiffs are entitled to a share in the said property. The case of adverse possession is not estblished. Thus it decreed the suit of the plaintiffs as prayed for.
8. Aggrieved by the said judgment and decree of the Trial Court, the defendants 1 to 3 preferred regular appeal. The lower Appellate Court on re-appreciation of the entire evidence on record and after formulating the points for consideration, agreed with the findings recorded by the Trial Court, affirmed the judgment and decree and dismissed the appeal. It is against these two concurrent findings, the defendants 1 to 3 are in second appeal.
9. Sri R.L. Patil, Learned Counsel appearing for the appellants assailing the impugned judgment and decree of the courts below, contended that the courts below while framing the issue regarding adoption have wrongly placed the burden on the 3rd defendant. When once there is a registered adoption deed under Section 16 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'the Act', for short), it is for the plaintiffs to adduce evidence to show that the said valid deed of adoption is invalid. Secondly, he contended that the plaintiffs were aware of the fact that the 3rd defendant was taken in adoption, they did not seek declaration that the alleged adoption is invalid or never in fact took place and they ought to have filed a suit within three years from the date of adoption becoming known to them as contemplated under Article 57 of the Limitation Act, 1963, and therefore the suit is barred by time. Thirdly it was contended that when the 3rd defendant on the date of adoption was 18 to 21 years, the question of the 3rd defendant being given in adoption as required under law would not arise and therefore, the natural father of the 3rd defendant executing the adoption deed also would not arise. On that score, the courts below committed a serious error in holding that the presumption under Section 16 is not available to the 3rd defendant Fourthly, it was contended that independent of the adoption deed, evidence has been adduced to prove adoption and the adoption deed itself being a document which is 30 years old, under Section 90 of the Evidence Act there is a presumption of execution of this valid adoption deed from which fact of adoption is also proved. Lastly, he contended that though the trial Court raised an issue regarding limitation and answered it against the defendants, but the lower Appellate Court failed to raise the point for consideration regarding limitation. Therefore, he submits that the courts below have not properly appreciated the material on record, taken into consideration the statutory provisions and the settled legal position, as such the impugned judgment and decree requires interference.
10. Learned Counsel appearing for the respondents supported the impugned judgment and decree of the courts below.
11. From the aforesaid submissions, the following substantial questions of law do arise for consideration in this appeal.
(1) What is the presumption to be drawn as to a registered document relating to adoption which is thirty years old?
(2) Whether the adoption without the consent of wife and of a person who is aged more than 15 years on the date of adoption is a valid adoption?
(3) Whether Article 57 of the Limitation Act, 1963 applies?
12. The plaintiffs who are the daughters and Class-I heirs of deceased Bharamagouda have filed this suit for partition and separate possession of their legitimate 3/5th share in the suit schedule properties. The 1st defendant is the second wife. 2nd defendant is the daughter of the 1st defendant who are entitled to 1/5th share in the suit schedule properties. The 3rd defendant claims that he is the adopted son. He is the younger brother of the 1st defendant and the husband of the 2nd defendant Though the plaintiffs averred in the plaint that the 3rd defendant claims that he is the adopted son, no where they have admitted the adoption. On the contrary, they have specifically averred in the plaint that no ceremony took place adopting the 3rd defendant. Therefore, they contended that the 3rd defendant has no right over the properties. Ex.D-11 is the original Adoption Deed under which the 3rd defendant claims that he has been adopted by his adoptive father - Bharamagouda. The said document is 30 years old. 3rd defendant is aged more than 15 years on the date of adoption. The consent of 1st wife was not obtained. The natural father of the 3rd defendant has not executed the deed of adoption. These are all admitted facts. In this background the substantial questions of law are to be answered.
Question No. 1:
13. The plaintiffs have averred in the plaint that the 3rd defendant is claiming to be the adopted son. It does not amount to plaintiff admitting either the adoption of the defendant or execution of a deed of adoption. In fact in the plaint it is categorically stated no adoption ceremony took place. Thereby, the plaintiff is totally denying the factum of adoption. The burden of proving the adoption is always on the person who sets up the plea of adoption. This burden never shifts on the person who denies the adoption. If the person who has set up an adoption, in the course of his evidence produces the deed of adoption, which is duly registered, Section 16 of the Act mandates that the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. Therefore, in proof of adoption, the person who sets up the adoption has to produce before the Court the deed purporting to record an adoption and it should satisfy the other requirements of law stipulated in Section 16 before the Court can be called upon to presume the fact of adoption. Only when all these acts leading to the presumption are fulfilled, the onus shifts on the person denying the adoption to disprove adoption, because by production of a registered document, the adoption is proved. Therefore, under no circumstances, when adoption is denied the burden of disproving adoption, would initially be upon the person denying the adoption. Therefore, the issues are properly framed and the burden of proving adoption was rightly placed on the 3rd defendant.
14. The presumption regarding the factum of adoption is found under Section 16 of the Act, which reads as under:
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. Before a presumption could be drawn under the aforesaid provision, to the effect that the adoption has been made in compliance of the provisions of the Act, the conditions stipulated under the said Section have to be fulfilled. The conditions to be fulfilled are:
i) The registered document evidencing adoption should be produced before the Court.
ii) It should be shown that the said document is signed by the person giving the child in adoption.
iii) It should be shown that it is signed by the person taking the child in adoption.
16. Only if the aforesaid all the three conditions are fulfilled, the presumption contemplated under Section 16 of the Act could be drawn. However, the said presumption is a rebuttable presumption. Once the person discharges the aforesaid legal requirements, a presumption is drawn in his favour and it is for the person denying the adoption to lead evidence to rebutt the presumption.
17. In the instant case, the original registered Adoption Deed is produced. It bears the signature of the person taking the child in adoption. But admittedly, it does not bear the signature of the person giving the child in adoption. The essence of adoption is in giving and taking the child in adoption. The said act is to be signified by the person giving and taking the child in adoption by executing the deed of adoption. Then only the factum of adoption is proved. Once the original adoption deed produced did not bear the signature of the person giving in adoption, then the presumption under Section 16 of the Act is not attracted. That is precisely what the Courts below have held. In coming to the said conclusion, they have relied on the judgment of Bombay High Court in the case of Krishnabai Patil v. Ananda Patil, wherein it has been held as under
Presumption under Section 16 of the Hindu Adoption and Maintenance Act is available only if the document has been executed by both the persons taking the child in adoption and the person giving the boy in adoption. Further, the adoption deed executed only by person taking in adoption, then such presumption under Section 16 is not available.
18. Therefore, it cannot be said that the Courts below committed any illegality in refusing to draw the presumption under Section 16 of the Act.
19. It was next contended that the document is 30 years old and the presumption under Section 90 of the Indian Evidence Act is attracted to the facts of the case and therefore the Adoption is proved.
Section 90 of the Indian Evidence Act reads as under:
Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such on origin probable.
This explanation applies also to Section 81.
20. This section deals with the admissibility of ancient documents without proof in the usual manner. The rule is founded on Necessity and Convenience. It is extremely difficult and sometimes impossible to prove the handwriting or signature or execution of ancient documents after the lapse of many years. The words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. It is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. The presumption relates to the execution of the document, i.e. signature, attestation, etc, in other words, its genuineness. Therefore, under Section 90 of the Indian Evidence Act, it can be presumed that the said Deed is duly executed and attested. The presumption so drawn only relates to the fact that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, and that the said document is duly executed or attested by such person. But, the proof of signature or handwriting does not establish that whatever is stated in the document is also correct. That must be proved like any other fact. That has to be proved not only by production of documents but by proving its contents as well. There is no presumption that the document has the legal effect it purports to have. It does not involve any presumption that the contents of the documents are true or that it had been acted upon. Such allegation has to be proved on adducing relevant evidence. It does not involve any presumption of correctness of every statement in it which may contain narratives of past events, or that the contents of the document are true, or that it has been acted upon. Though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. It has nothing to do with the question of their relevancy which must be determined in accordance with the rules regarding relevancy. Hence, no presumption under Section 90 of the Evidence Act, could be raised to the effect that the adoption recorded in the deed is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption.
Question No. 2:
21. However, notwithstanding that no presumption could be drawn under Section 16 of the Act, it is always open to the person who has pleaded adoption to establish adoption by other evidence. An attempt is made in this case to establish the adoption by other evidence also. Unfortunately, the other evidence produced, in no way establishes the case of adoption as rightly held by the Courts below.
22. Section 7 of the Act deals with the capacity of a male Hindu to take in adoption which reads as under:
Capacity of a male Hindu to take in adoption. - Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of a unsound mind.
Explanation.- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
Therefore, it is clear that the consent of the wife is a condition precedent for a valid adoption. If a wife is living, the adoptive father shall not adopt a child except with the consent of his wife. Explanation to this Section makes it clear that if the person has more than one wife living at the time of adoption, the consent of all the wives is necessary.
23. In this regard it is useful to refer to a decision of this Court in the case of Siddaramappa and Ors. v. Smt. Gouravva ILR 2004 (3) page 3626, where it has been held as under.
A reading of the aforesaid Section 7 makes it very clear that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But, the proviso to that section makes it very clear if that male has a wife living, he shall not adopt except with the consent of his wife; unless the wife (a) has completely and finally renounced the world (b) has ceased to be a Hindu or (c) has been declared by a Court of competent jurisdiction to be of unsound mind. Therefore, the proviso makes it very clear under what circumstances in spite of a wife living a male Hindu is competent to adopt a child without her consent. Having regard to the language employed in the said proviso, the said provision is exhaustive. The law does not provide for any other contingency under which a male Hindu can adopt a child without the consent of his wife living at the time of adoption. When the circumstances under which a consent of wife is not necessary are specified, they cannot be added to. To do that would be adding words to the statute. More over the words in the proviso that "he shall not adopt except with the consent of his wife" is emphatic and renders the provision mandatory and should be obeyed if the adoption to be lawful.
24. Bharamagouda had two wives. According to the evidence of D.W. 1, the 1st wife was alive and she neither attended the adoption ceremony nor her consent was obtained for adoption. The 1st defendant is the 2nd wife who is said to have participated in the adoption ceremony did not step into the witness box. It is nobody's case that her consent was obtained. In the instant case, if she had given consent to adopt the 3rd defendant, the result would have been that the son-in-law would become the son, in which event her daughter becomes the daughter-in-law. Even otherwise her adopted son would be marrying her daughter, which render their marriage void. Therefore, the material on record clearly shows that the so-called adoption by Bharamagouda was without the consent of his wives. No doubt, DWs-2 & 3 have stated in their evidence that Gourawwa was not alive on the date of adoption. Therefore, the best evidence in the case would have been production of a death certificate or examination of the 1st defendant. The first defendant was not examined. The third defendant, the adopted son is also not examined, though he was a major on the date of adoption. Therefore, Bharamagouda adopted the 3rd defendant without the consent of his wives, as such there was no valid adoption.
25. Section 10 of the Act deals with the persons who may be adopted, which reads as under:
Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
26. A reading of the aforesaid provision makes it clear that a person who has completed the age of 15 years is a person who is not capable of being taken in adoption. But, Clause (iv) of Section 10 of the Act provides, 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, then adoption of a person who has completed the age of 15 years is permissible. The condition precedent for such a situation is, when once the Adoption Deed shows the age of the person adopted is more than 15 years and if such a person is defending the adoption, he should plead custom or usage applicable to the parties and then prove the said custom and usage by adducing evidence. Otherwise on the face of it, the adoption is invalid, though there is a registered adoption deed recording adoption.
27. On the date of adoption, the 3rd defendant was admittedly aged between 18 to 21 years. Therefore, the very recitals in the document shows, that the 3rd defendant is not a person who is capable of being taken in adoption. Admittedly, no custom or usage is pleaded nor any evidence is adduced to prove the custom or usage. It is under those circumstances, the Courts below meticulously considered the oral and documentary evidence on record, kept the statutory provisions governing the adoption in mind and following the judgments rendered by the Apex Court and the High Court, have held that the adoption set up by the 3rd defendant is not established. The said finding is based on legal evidence and is in accordance with law. Therefore, the said findings do not call for any interference.
Question No. 3:
28. Article 57 of the Indian Limitation Act, 1963 reads as under:
To obtain a declaration Three years When the alleged that an alleged adoption adoption becomes is invalid, or never, in fact, known to the took place plaintiff
A reading of the aforesaid Article makes it clear that the suit referred to in the said Article is a suit to obtain a declaration that an alleged adoption is invalid or never in fact took place. The words to obtain a declaration has to be understood in the context of Section 34 of the Specific Relief Act. Therefore, it would be a suit under the provisions of the Specific Relief Act, 1963. The Legislature using the words in Article 57, to obtain a declaration, meant to use it as a term of art with reference to the earlier enacted Section 42 and present Section 34 of the Specific Relief Act. For this Article to apply, the suit must be in truth and substance, one for a declaration that an adoption is invalid. In other words it pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way of inheritance. It is only when the prayer in the suit is for a declaration that an adoption is invalid that this Article would apply. When the plaintiff do not admit adoption or execution of an adoption deed, the question of the plaintiff seeking a declaration that the alleged adoption is invalid or never in fact took place would not arise. It is not necessary for the plaintiff to seek such declaration before she claims her right to the property by inheritance. The suit for possession or a suit for partition against a defendant who claims to be the adopted son, do not fall within this Article, even if in such a suit the Court has to incidentally go into the question of validity of adoption. The suit for partition cannot be treated as one for setting aside the adoption merely because one of the defendant sets up a claim so as to attract the Article of Limitation Act. In order to attract Article 57 of the Limitation Act, the plaintiff who files a suit for declaration that the alleged adoption is invalid or never in fact took place, he has to admit the adoption. If he is a party to the said deed of adoption, then to get over the effect of adoption it is necessary for such person to seek declaration within the time prescribed under law. In such a suit to get over the deed of adoption, it is open to him to contend that the adoption recorded in the adoption deed is invalid or it never in fact took place. If he is able to establish his case, then he would be entitled to a declaration. It is only in such an event, it is necessary for a person to file a suit for such declaration and then the period of limitation for filing such suit starts from the date the alleged adoption becomes known to the plaintiff.
29. In the instant case, plaintiffs do not admit adoption. Plaintiffs are not the parties to the Deed of Adoption. They are not aware of any Adoption Deed. In fact, in the written statement filed by the 3rd defendant, though he has contended that he is the adopted son, he did not refer to the Deed of Adoption. Because the 3rd defendant was claiming to be the adopted son and on such representation as he was able to get mutation entries made out in his name, it became necessary for the plaintiffs to aver in the plaint in what context the 3rd defendant is asserting title to the properties and interfering with their possession. In that context, they have stated that the third defendant is claiming to be the adopted son, no adoption had ever took place and therefore he has no right, title or interest of any manner whatsoever over the suit schedule properties. Therefore, Article 57 is not attracted and the suit is not barred by time as contended. Plaintiffs were under no obligation to seek only declaration, or seek cancellation of the Deed of Adoption. Therefore on that score, it cannot be said that the judgment and decree of the Courts below are vitiated or that they have committed any illegality in rejecting such contention of the 3rd defendant.
30. When once the adoption is held to be invalid or that the 3rd defendant is not the adopted son, then plaintiffs are entitled to 1/5th share each in the plaint schedule properties along with defendants 1 and 2 who are also entitled to 1/5th share. Hence, the judgment and decree of the Courts below are in accordance with law and requires no interference.
31. Accordingly, appeal is dismissed.