Karnataka High Court
Manjappa S/O Honnaiah Naik vs Smt Masti Ram Naik on 9 June, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No. 2079 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 09TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.2079 OF 2007
BETWEEN
MANJAPPA S/O HONNAYYA NAIK
SINCE DECEASED BY LRS,
1. HONNAIH MANJAPPA NAIK
AGE: MAJOR, RYOT,
R/O.BENGRE-II VILLAGE,
BHATKAL TALUK.
2. SRI. JATTA S/O MANJAPPA NAIK
AGE: MAJOR, RYOT,
R/O.BENGRE-II VILLAGE,
BHATKAL TALUK.
3. SHANIYAR MANJAPPA NAIK
AGE: MAJOR, RYOT,
R/O.BENGRE-II VILLAGE,
BHATKAL TALUK.
4. SMT. DURGAMMA KOM MANJAPPA NAIK
SINCE DECEASED
SUJATA
Digitally
signed by (APPELLANT NO.1 TO 3,5 AND 6 ARE LEGAL
SUBHASH SUJATA
PAMMAR SUBHASH REPRESENTATIVES OF DECEASED APPELLANT NO.4)
PAMMAR
*AMMENDMENT CARRIED OUT AS PER THE HON'BLE COURT
ORDER DATED 6-09-2021*
5. SMT. KRISHNAMMA KOM RAMACHANDRA NAIK
AGE: MAJOR, RYOT,
R/O.BENGRE-II VILLAGE,
BHATKAL TALUK.
6. SMT. NAGAMMA W/O MAHADEV NAIK
AGE: MAJOR, R/O.MAVALLI,
MURDESHWAR,
BHATKAL TALUK, U.K.DISTRICT.
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RSA No. 2079 of 2007
...APPELLANTS
(BY SRI. VISHWANATH HEGDE,ADVOCATE)
AND
1. SMT MASTI RAM NAIK
AGE: MAJOR, RYOT,
R/O.KOLLURMANE,
BENGRE-II, BHATKAL TALUK.
2. SRI. RAMA GOVIND NAIK
AGE: MAJOR, RYOT,
R/O.KOLLURAMNE,
BENGRE-II, BHATKAL TALUK.
3. SMT MANJAMMA NAGAPPA NAIK
AGE: MAJOR,RYOT,
R/O.KOLLURMANE,
BENGRE-II, BHATKAL TALUK.
...RESPONDENTS
(BY SRI. SHARAN BASAVARAJ CHALAWADI ADV. FOR
SRI. GANGADHAR J. M. ADV. FOR R1 AND R2,
R2-SERVED)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD16.7.07 PASSED IN R.A.NO 102/01 ON THE FILE OF THE
CIVIL JUDGE. SR.DN., HONAVAR, DISMISSING THE APPEAL AND
CONFIRMING JUDGEMENT AND DECREE DTD 26.9.96 PASSED IN OS
136/92 ON THE FILE OF THE MUNSIFF AND JMFC, BHATKAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.05.2023 THIS DAY COMING ON FOR PRONOUNCEMENT, THIS
COURT DELIVERED THE FOLLOWING.
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RSA No. 2079 of 2007
JUDGMENT
This appeal is filed by the defendant, challenging Judgment and Decree passed in OS No.136/92 dated 26.09.1996 on the file of the Munsiff & JMFC, Bhatkal, and confirmed by the Civil Judge (Sr.Dn), Honavar in RA No.102/2001 dated 16.07.2007.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief facts of the case are as under:
That the suit schedule properties are three agricultural lands situated in Bengre village, as described in detail in the schedule. The plaintiff filed the suit seeking declaration to the effect that he is the sole legal heir of deceased brother Honnayya and permanent injunction is sought against defendant Nos.1 and 2 from interfering in his enjoyment over the suit schedule properties. It is the contention of the plaintiff that they are three brothers, namely Jattappa, plaintiff-Manjappa and Irappa. Honnayya was the father and -4- RSA No. 2079 of 2007 Jattappa died long back leaving behind Defendant No.3- Manjamma as his sole surviving daughter. Plaintiff's brother Irappa died issueless on 26.08.1992 and his wife predeceased him. It is the contention of the plaintiff that the suit schedule properties are the joint family properties and it is further asserted that item Nos.1 and 2 are joint properties of plaintiff and deceased Irappa and they were in their joint possession. It is further asserted that for item No.3, plaintiff-defendant No.3 and deceased Irappa were joint owners and in joint possession. According to the plaintiff, Irappa resided along with plaintiff on account of his old age and he never cultivated the suit schedule properties and it is the plaintiff who cultivated the family properties. It is further asserted that subsequent to death of Irappa, the last rites were performed by the plaintiff and he is the sole legal heir of the deceased Irappa. According to the plaintiff when he approached the village accountant for mutating his name in the suit schedule properties, it was brought to his notice that defendant No.1 in collusion with revenue authorities got effected ME No.A4016 by transferring the suit schedule properties in her name. It is asserted that defendant No.1 -5- RSA No. 2079 of 2007 misrepresented herself as adopted daughter of deceased Irappa and he disputes the alleged adoption. It is contended that defendant No.2 is the husband of defendant No.1 and they never resided with deceased Irappa. Hence, she filed the suit in view of the claim made by defendant No.1.
4. Defendant No.1 filed her written statement which is adopted by her husband defendant No.2. Defendant No.1 in her written statement disputed that the properties are the joint family properties. She denies the plaint averments and contended that suit properties were exclusively owned by Irappa and she was adopted by Irappa when she was aged about 6 months and there was a giving and taking ceremony as per the custom. It is further asserted by the plaintiff that after adoption, she was all along residing with Irappa and his deceased wife and her marriage was also performed by Irappa with defendant No.2 and both of them were residing with deceased Irappa. It is also asserted that her adoptive mother Hadiyamma pre-deceased Erapa and after her death, her properties were mutated in the name of defendant No.1 and still they are in occupation of house belonging to deceased Irappa. It is also asserted that defendant Nos.1 -6- RSA No. 2079 of 2007 and 2 all along assisted the deceased Irappa in cultivation of the suit schedule properties and after his death, they are in possession and cultivation of the suit schedule properties. It is also asserted that house owned by Irappa is also in their possession and their name is entered which is not challenged. She has also contended that deceased Irappa had also bequeathed the suit schedule properties in her name as well as in the name of defendant No.2 by executing a registered will deed and hence, she asserted her right by testamentary succession as well as being an adoptive daughter of the deceased Irappa. Hence, he has sought for dismissal of the suit.
5. Defendant No.2 has adopted written statement of defendant No.1.
6. Defendant No.3 initially filed a written statement supporting the case of defendant No.1. However, later on, she changed her Advocate and filed the written statement disputing the adoption of defendant No.1 and claiming right over the suit properties as a legal heir of deceased Irappa along with the plaintiff.
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7. The Trial Court on the basis of the rival pleadings has framed the following issues:-
RECAST ISSUES "1. Whether the plaintiff proves that he is the only legal heirs to diseased Irappa Honnayya Naik ?
2. Whether the plaintiff further proves that he is in exclusive possession and enjoyment of the suit schedule properties ?
3. Whether the plaintiff further proves the interference by defendant no.1 and 2 in his such enjoyment of the suit schedule properties ?
4. Whether the defendant No.1 proves that she is the adoptive daughter of deceased Irappa and his wife Hadiyamma ?
5. Whether the defendant proves that the deceased Irappa was the exclusive owner. and person in possession of 26 guntas 8 annas of land in suit S.NO.1107/4 and he was the exclusive owner and person in possession of the suit schedule No.651/18 and as such -8- RSA No. 2079 of 2007 the alone is entitled to those properties being the legal heir to deceased Irappa ?
6. Whether the defendant No.1 proves that the deceased Irappa Honna ya Naik executed a registered will dt.
18.12.1995 in her favour be quashing his properties in her favour ?
7. What Judgement and decreed ?"
8. During the pendency of the suit plaintiff died and his legal heirs were brought on records as plaintiff No.1(a) to 1(f). Plaintiff 1(b) was examined as PW1 and 2 witnesses were examined as PW2 and PW3 and placed reliance on eight documents marked at Exs.P1 to P8. Defendant No.1 got examined himself as DW1 while three witnesses examined on behalf of defendant Nos.1 and 2 as DW 2 to DW4.
Defendant No.3 was examined as DW5 and defendant No.1 placed reliance on six documents marked at Exs.D1 to D6.
9. After having heard the arguments and after perusing the records, the Trial Court answered issue Nos.4 and 5 in the affirmative while issue Nos.2 and 3 were -9- RSA No. 2079 of 2007 answered in the negative and issue No.6 is answered partly in the affirmative while issue No.1 is partly answered in favour of plaintiff insofar as relates to declaration and suit of the plaintiff came to be dismissed.
10. Being aggrieved by the same, plaintiffs have filed RA no.102/2001 on the file of the Civil Judge (Sr.Dn), Honavar. The learned Senior Civil Judge, after re- appreciating the oral as well as documentary evidence, has dismissed the regular appeal by confirming the judgment and decree passed by the Trial Court. Being aggrieved by these concurrent findings, the LRs. plaintiff are before this Court as appellants.
11. Heard the arguments advanced by the learned counsel for the appellants and learned counsel for the respondent Nos. 1 and 2.
12. Respondent No.3 though served, unrepresented.
13. Perused on records.
14. Learned counsel for the appellants would contend that defendant No.1 is claiming to be an adopted daughter,
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RSA No. 2079 of 2007but, the adoption is not proved and it is hit by Section 4 of Hindu Adoption and Maintenance Act. It is also contended that no customary adoption is established and the evidence of defendants all along establishes that she has called herself as Foster daughter (sakumagalu) and hence, she never treated herself to be a adopted daughter. It is further asserted that, the plaintiff being the brother is exclusive legal heir of the deceased Irappa and both the Courts have failed to appreciate the adoption. Hence, he would seek for allowing the appeal by decreeing the suit as prayed for.
15. Per contra, the learned counsel for respondent Nos.1 and 2 would support the judgment and decree passed by the Trial Court and confirmed by the Appellate Court. It is submitted that DW2 and DW3 who are quite aged are witnesses to the adoption and the adoption is proved through their evidence as they have specifically deposed regarding give and take ceremony. Further, it is also argued that defendant No.1 all along resided with deceased Irappa and she was treated as the adopted daughter and the deceased Irappa himself has performed her marriage. It is further contended that the ration card and voters list
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RSA No. 2079 of 2007produced by defendants clearly establish that Irappa was residing with defendant No.1 and in the ration card his name appeared and the name of defendant no.1 is shown to be the daughter of Irappa and same hold good as regards voters list as both defendant Nos.1 and 2 are residing with Irappa which presupposes that she is adopted daughter, otherwise, there was no occasion for defendant Nos.1 and 2 to stay with Irappa as they are not related by blood. It is further submitted that both the Courts below have appreciated the oral and documentary evidence in detail and judgments and decrees does not suffer from any infirmity or illegality so as to call for any interference. Hence, he seeks for dismissal of the appeal.
16. This Court has framed the following substantial question of law on 23.05.2023.
"Whether both the Courts below are justified in rejecting the claim of the plaintiff regarding declaration and injunction?"
17. Records disclose that there is no serious dispute regarding genealogy. Admittedly, propositus Honnayya had
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RSA No. 2079 of 2007three sons by name Jattappa, plaintiff-Manjappa, and deceased Irappa. Further, defendant No.3 is the daughter of Jattappa while plaintiff is the second son. He also died during the pendency of the suit and now he is being represented by legal representatives. It is also an admitted fact that Irappa died on 26.08.1992. His wife is also predeceased him. However, there is rival contentions regarding name of Irappa's wife. According to defendant Nos.1 and 2, Hadiyamma was the wife of Irappa while plaintiffs asserts that her name was Mastamma. However, it is fact that she predeceased Irappa. But. At the same time, plaintiffs have not produced any documents to show that the wife of Irappa was known as Mastamma.
18. It is also evident that defendant No.1 is a total stranger to the family of the Irappa. Her claim is only based on the adoption by Irappa. It is also evident from the records that her genitive father is no more, but genitive is mother is alive. It is the contention of the plaintiff that after the death of Irappa, he is the exclusive legal heir of deceased Irappa. But, admittedly Irappa is the brother of the plaintiff and defendant No.3 is his niece. Even if the
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RSA No. 2079 of 2007adoption of defendant No.1 is held to be not valid, in that event, the plaintiff alone cannot be a legal heir and defendant no.3 also become legal heir of Irappa. But, that issue is based on the testamentary succession as well as adoption as clamed by defendant No.1. Defendant no.1 is examined as DW1 and she has specifically asserted that she is the adoptive daughter of Irappa. Her evidence discloses that she was adopted while she was aged about 6 months old and there was give and take ceremony. No doubt defendant No.1 is not a competent witness to depose regarding adoption since she was minor then. However, DW2 and DW3 are two independent witnesses who have supported the claim of defendant No.1 regarding adoption. DW2 and DW3 specifically deposed regarding defendant no.1 being given in adoption by her genitive parents and being taken by the adoptive parents. DW2 was aged about 80 years when he was examined and he specifically asserts his presence during the adoption.
19. Again this evidence of DW2 is fully supported by DW3 who is against aged about 65 years. He has also deposed regarding adoption of defendant No.1 by deceased
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RSA No. 2079 of 2007Irappa and his wife Hadiyamma and he participating in the said ceremony. This evidence also disclose that no Datta Homam was performed and there is no custom of performing Datta Homam in their family and further their evidence also disclose that after the adoption of DW1, defendant No.1 grew up in the house of Irappa and Irappa himself has performed the marriage of defendant No.1 with defendant No.2 and both defendant Nos.1 and 2 were residing with deceased Irappa and they performed final rites of Irappa after his death.
20. Further evidence of DW2 and DW3 is again supported by the documentary evidence Ex.D3 and Ex.D5. Ex.D3 is the ration card and Ex.D5 is the voters list. In Ex.D3, the name of defendant No.1 appears along with deceased Irappa and his wife Hadiyamma and it is of the year 1985 and it came into existence when there was no lis between the parties. This documents seen the day of light much earlier point of time to filing of the suit. Further Ex.D3 reveals that names of children of defendant No.1 is also disclosed there. Again it is corroborated by Ex.D5 which is the certified copy of the voters list prepared by the
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RSA No. 2079 of 2007competent authority for the year 1989 which is again prior to arising of dispute between the parties. This document disclose that name of defendant No.1 appears along with deceased Irappa in the voters list for the same address. Admittedly, defendant No.1 is a total stranger to the family of Irappa and without there being an adoption there was no reason for her to come and reside with deceased Irappa. The oral evidence of DW2 and DW3 coupled with Ex.D3, D4 and D5 lend greater credibility to the adoption as claimed by defendant No.1 in this case. Though DW2 and DW3 were cross examined at length, nothing worthy was elicited in their cross examination so as to discard their evidence.
21. Much arguments have been advanced regarding non production of adoption deed. However, the order of the Tashildar and Assistant Commissioner produced by plaintiffs themselves at Ex.P7 and P8 clearly disclose that adoption deed was produced before the revenue authorities. No doubt DW1 claims her ignorance in this regard, but, admittedly, she being minor is incapable of giving any evidence regarding execution of the adoption deed. Further under the Hindu Adoption and Maintenance Act and Registration Act,
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RSA No. 2079 of 2007the adoption is not a compulsorily registered document and if there is a registered adoption deed, it only draws a presumption in respect of valid adoption under Section 16 of the said Act. Defendant No.1 is not claiming any presumption U/s 16 of Act, but, evidence was lead to prove factum of adoption. No evidence is led for plaintiffs to show that the adoption is in contravention to Section 4 of the Hindu Adoption and Maintenance Act as alleged by the plaintiff.
22. Interestingly, defendant No.3 initially filed her written statement admitting the claim of defendant No.1 by supporting her claim. Subsequently, changed the Advocate and filed written statement disputing the adoption. The stand taken by defendant No.3 is inconsistent and contrary. She is also examined as DW5 and her evidence is not trustworthy in this regard. Learned counsel for respondents- defendants placed reliance on decision of the Apex Court in 1970(1) SCC 677 (L.DEBI PRASAD (DEAD) BY L.R.S. VS. SMT. TRIBENI DEVI AND OTHERS) regarding validity of adoption and requirement and burden of proof. He has further placed reliance on the decision of the Apex Curt reported in (2018)
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RSA No. 2079 of 20079 SCC 663 (KAMLA RANI VS. RAM LALIT RAI ALIAS LALAK RAI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS wherein it is observed as follows "Family and Personal Laws - Hindu Law - Adoption - Proof of - Principles summarized - Held, factum of adoption and its validity has to be duly proved-
Though formal ceremony of giving and taking is essential ingredient for valid adoption, long duration of time during which a person is treated as adopted cannot be ignored - Such fact by itself may carry a presumption in favour of adoption."
23. The principles enunciated in the above said decisions make it very clear that formal ceremony of giving and taking the essential ingredient of valid adoption. In the instant case both DW2 and DW3 have specifically stated regarding giving and taking ceremony. Further Exs.D3 and D5 clearly establish that all along for long duration of time, the defendant No.1 is treated as adopted daughter which cannot be ignored and these documents were came into light long prior to lis arose. Further, the records also disclose that
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RSA No. 2079 of 2007Irappa himself had treated as defendant No.1 as his adoptive daughter which is evident from Ex.D3 - ration card. Hence, the principles enunciated in the above cited decisions clearly establish that defendant Nos.1 and 2 have successfully prove the adoption of defendant No.1 by the deceased Irappa. When defendant No.1 established her adoption, then she steps into the shoes of Irappa as his lawful heir and question of plaintiff and defendant No.3 claiming any share in the suit schedule properties as a legal heirs does not arise at all. After adoption, defendant No.1 become Class I heir of Irappa and as such, plaintiff and defendant No.3 being Class II heirs are excluded.
24. All along it is asserted that suit schedule properties are joint family properties. However, the records clearly establish that suit schedule properties are tenanted lands granted independently. The evidence also disclose that PW3 clearly admit that Irappa was not residing with plaintiff and he was residing separately. Plaintiffs have not produced any single piece of document to substantiate that Irappa had resided with plaintiff at any point of time. On the contrary, the witness of the plaintiff, PW3 himself has admitted that
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RSA No. 2079 of 2007defendant no.1 was all along residing with Irappa. During the course of arguments, the learned counsel for appellants would submit that plaintiffs are not claiming that suit schedule properties as joint family properties. In that event, Irappa was an exclusive owner and defendant No.1 being Class I heir, she succeeded suit schedule properties and question of either the plaintiff or defendant No.3 claiming any interest does not arise at all.
25. The other interesting issues is regarding the bequeath. Ex.D4 is the original Will and it is the specific contention of defendant Nos.1 and 2 that deceased Irappa had also bequeathed suit schedule properties in favour of defendant Nos.1 and 2. Ex.D4 is the registered Will. No doubt the registration is not mandatory and only attestation is mandatory. But, at the same time, PW2 is an attesting witness to the Will who has specifically deposed regarding execution of the Will and PW4 is an Advocate and scribe of the Will. Both the witnesses supported the claim of the defendants regarding bequeath. The evidence of DW2 and DW4 in this regard is not impeached though they were cross examined at length. Further PW1 himself in his cross
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RSA No. 2079 of 2007examination admitted that the deceased Irappa was in a sound disposing state of mind. Subsequently, during the cross examination of DW4, the execution of document was not denied, but, it suggested that deceased Irappa was not in sound disposing state of mind. But this suggestion goes contrary to the evidence of PW1 who admits that deceased Irappa was in a sound disposing statement of mind till his death. Ex.D4 is not surrounded by any of the suspicious circumstances and Irappa being exclusive owner of the suit schedule properties has bequeathed the suit schedule properties in favour of defendant Nos.1 and 2 by registered Will. The bequeath is also proved by examining DW2 to DW4. No reasons are forthcoming to discard the evidence of Defendant DW2 to DW4. On the contrary, the evidence of PW2 and PW3 is not trustworthy as the cross examination exposes that they do not know the family affairs and they have not seen the suit schedule properties also. Looking to these facts and circumstances, it is evident that defendant no.1 was successful in proving her adoption as well bequeath by deceased Irappa. Under such circumstance, question of plaintiffs claiming any interest in the suit schedule properties
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RSA No. 2079 of 2007does not arise at all. Both the Courts below have appreciated the oral as well as documentary evidence in detail and have arrived at a just decision. Both the Courts below have rightly rejected the claim of the plaintiffs regarding the relief of declaration and injunction against defendant Nos.1 and 2. The judgment and decree passed by the trial Court and confirmed by the First Appellate Court cannot be said to erroneous or arbitrary so as to call for any interference by this Court. Considering all these facts and circumstances, the point under consideration is answered in the 'affirmative' and as such appeal being devoid of any merits does not survive for consideration and accordingly, it stands dismissed.
Sd/-
JUDGE Vmb CT: PA