IMPORTANT POINT
In order to enable an adopted son to claim a share in his natural father’s property as a coparcener the deed of adoption must clearly mention the form of adoption as also stipulate an agreement that the person given in adoption shall be the son of both i.e. the natural father as well as the adoptive father.

JUDGMENT

S.B. SINHA, J.—

Leave granted.

2.Application of the “Dvyamushayana” form of adoption is in question in this appeal which arises out of a judgment and order dated 29.6.2006 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 1187 of 2003 affirming a judgment and decree dated 26.7.2003 passed by the Learned XXII City Civil Judge, Bangalore in O.S. No. 4472 of 1991 dismissing the suit for declaration and partition as also separate possession filed by the appellant herein.

3.One S.M. Thimadasappa was the owner of the properties. He and his wife Smt. Puttamma (original defendant No. 1, since deceased) had a son known as Krishnappa. S.M. Thimadasappa had a brother named Sohur Thimmaiah who was issueless. Thimadasappa and his wife gave plaintiff, Krishnappa in adoption to Sohur Thimmaiah in a ceremony held therefor on 15.2.1945.

4.The deed of adoption admittedly did not contain any stipulation that the said adoption was in “dvyamushyayana” or in other form.

5.Appellant claimed partition also in the property of Thimmadasappa. Thimmadasappa had a daughter Kumari Menaka. The plaintiff claimed that he continued to be a coparcener in the family of Thimmadasappa. A partition took place on 8.7.1960 in the family of Thimmadasappa, item No. 3 whereof fell in his share. Kamala was the other daughter of Thimmadasappa. She expired in the year 1982 leaving behind the contesting respondents as her heirs and legal representatives. Thimmadasappa executed a Will on or about 26.12.1981. He expired in the year 1984.

6.The short question which arose for consideration in the suit was as to whether the plaintiff/appellant continued to be a coparcener in the joint family property of Thimmadasappa and thus became entitled to 2/3 share in the suit properties. The learned trial judge framed the following issues:-

“1.Whether the plaintiff proves his right over the suit schedule properties?

2.Whether the plaintiff is entitled for 2/3rd share in the suit schedule properties?

3.Whether the plaintiff is entitled for the accounts?

4.What decree or order?

5.Whether the defendants prove that the court fee paid is sufficient?”

7.On appreciation of the evidence and in particular the fact that Thimmadasappa had executed a Will in the year 1981, the genuineness or otherwise whereupon was not questioned by the appellant, the learned Trial Judge as also the First Appellate Court negatived the appellant’s claim.

8.Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellant would, in support of this appeal, submit that the learned Trial Judge as also the High Court committed a serious error insofar as it failed to raise a presumption that the adoption of the appellant by Sohur Thimmaiah took place in “dvyamushyayana” form as he was the only son of his natural father.

9.It is not in dispute that adoption was evidenced by a deed of adoption dated 15.2.1945. No other agreement was produced before the Court to show that both the natural as also adoptive parents had agreed that the adoption would be in some other form. Stipulations made in the said deed of adoption dated 15.2.1945, however, clearly show to the contrary.

10.No independent witness was also examined to prove that his genetive parents gave in adoption to Sohur Thimmaiah in the form of “dvyamushyayana” on the basis of oral agreement or otherwise. Such an oral agreement might not have even been admissible in evidence in terms of Section 92 of the Indian Evidence Act.

11.What are the requisite ingredients of adoption in the said form came up for consideration in Rajgopal (Dead) by Lrs. v Kishan Gopal and Another1 [(2003) 10 SCC 653], wherein a Division Bench of this Court upon taking into consideration a large number of decisions stated the law thus;

“18. In every case of absolute dwyamushyayana form of adoption, there must be an agreement to the effect that the person given in adoption shall be the son of both i.e. the natural father as well as the adoptive father and such an agreement