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2003 Supreme(Kar) 1035
Karnataka High Court
Siddaramappa - Appellant
Versus
Gourawa - Respondent
Decided On : 12-09-03
First Appeal : 517 of 1999
PRAVIN RAIKOTE, Tarakaram Associates
Headnote:
HINDU ADOPTION AND MAINTENANCE ACT, 1956 - ADOPTION - CONSENT OF WIFE - ADOPTION WITHOUT CONSENT OF WIFE - VALIDITY - SECTION 7 - ADOPTION DEED - REGISTRATION - SECTION 16 - PRESUMPTION - REBUTTAL - WILL - EXECUTION - ATTESTATION - SUSPICIOUS CIRCUMSTANCES - EXPLANATION - BURDEN OF PROOF - SECTION 63 OF THE SUCCESSION ACT.
Fact of the Case:
The plaintiff, the legally wedded wife of Basavannappa, filed a suit for declaration, cancellation of adoption deed, and cancellation of illegal entries made by the revenue authorities acting on the adoption and the alleged Will. The defendants, including the brother of Basavannappa and the son of defendant No. 2, contested the claim. They contended that Basavannappa had taken in adoption defendant No. 3 with all religious ceremonies and giving and taking on 9-7-1992 at Bellatti and has executed an adoption deed which is duly registered on 9-7-1992. Defendant No. 3 has acquired title and possession of all the properties of deceased Basavannappa and plaintiff cannot question his adoption and title. Further, it was stated that the deceased basavannappa has executed a Will dated 9-7-1992 which has been duly attested and duly registered in favour pf defendant No. 3 confirming his adoption and title and right to all properties under the said Will.
Finding of the Court:
The Court found that the plaintiff has failed to prove that basavannappa was of unsound mind. It was held that the plaintiffs consent was not obtained for adoption. Therefore, the adoption set up by the defendant is illegal and the registered adoption deed is null and void. The plaintiff has established that on the death of her husband Basavannappa, she has inherited the entire properties and thus she has become the absolute owner of the properties. However, the material on record shows that the plaintiff is not in possession of any of the properties and it is the defendants who are in possession. As she is not in possession, the defendant's interfering with her possession would not arise. The first defendant has failed to establish that he has purchased the house property which has fallen to the share of Basavannappa by a registered sale deed as contended by him but he has proved his possession over the said house; The Will set up by the defendants is not proved and, therefore, the Court below has proceeded to grant the relief of declaration sought for and granted the relief of possession and injunction and declared that the Will and adoption set up are illegal and void.
Issues: 1. Whether the defendants prove the adoption pleaded by them and the registered adoption deed on which reliance is placed is valid and legal? 2. Whether the Will set up by the defendants is proved and under the Will the testator bequeathed the property in favour of the third defendant because of his love and affection towards him or because of the fact that he was his adopted son?
Ratio Decidendi: 1. Section 7 of the Hindu Adoption and Maintenance Act, 1956 provides 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: 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 unsound mind. 2. The proviso to Section 7 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 proviso 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. 3. 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. 4. 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. 5. The reason is obvious. Adoption is the admission of a stranger by birth to the privileges of a child as if the said child was born to the adoptive parents. With the adoption the child takes birth to the adoptive parents and acquires interest in the property belonging to the adoptive parents. 6. Thus, the adoption affects the rights of a Hindu wife in the property of her husband. 7. When a wife gives birth to a child whether she likes the child or not, law recognizes her as the mother of the said child and the said child as the son or daughter of the said wife. 8. For recognizing this relationship consent, concurrence of the mother is not required. 9. But, if a stranger by birth has to be conferred with the privileges of a child of the said wife the consent of the wife is a must. 10. No child could be foisted against such a wife by her husband without her consent and against her wish. 11. In other words she cannot be compelled to recognize a stranger by birth as her child and she as the mother of the said child. 12. More so, when such adoption affects her absolute right to the property of her husband. 13. Therefore, having regard to the object sought to be achieved by the Act and the underlining principle of equality sought to be achieved by the passing of the Act any other interpretation would be contrary to the letter and spirit of the en actment. 14. Section 16 of the Act gives rise to an initial presumption. But, it is a rebuttable presumption, 15. In the instant case when it is not in dispute that the consent of the plaintiff was not obtained, clause (iv) of the Section 6 is not complied with, the initial presumption in favour of the adopted son stands rebutted and having regard to the language employed in Section 16 itself, the adoption stands not proved. 16. A reading of the Will makes it very clear that the testator has disinherited completely his lawfully wedded wife, namely the plaintiff. 17. It is in that context the plaintiff contends once the wife is disinherited a suspicious circumstance exists regarding due execution of the Will and it is for the propounder of the Will to satisfactorily explain that suspicious circumstance. 18. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, dispositions made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances or there might be other factors in the Will to show that the testator's mind was not free.
Final Decision: The appeal is dismissed. Parties to bear their own costs.
( 1 ) THIS is a defendants appeal. For the purpose of brevity, the parties are referred to as they are referred to in the suit. The facts in brief are as under :
( 2 ) THE case of the plaintiff is, One mallappa S/o Fakirappa Sayan alias Tali was the propositus. He died leaving behind two sons by name Basavanneppa and Sidra- mappa. Those two brothers with their father constituted an undivided Hindu family. After the death of Mallappa, the brothers effected a partition of all the joint family properties. The property which fell to the share of basavanneppa are shown in the schedule 'a' to the plaint and the property which fell to sidramappa was shown as schedule 'b' properties. The plaintiff-Smt. Gourawa is the legally wedded wife of Basavanneppa; She halls from Bannikoppa Village of Shirhatti taluk. Basavanneppa died on 29-8-1992. There were no issues out of the wed lock and, therefore, on the death of Basavanappa, the plaintiff succeeded to all his properties as a sole legal heir. Defendant No. 1 is the brother of Basavannappa, defendant No. 3 is the son of defendant No. 2. The plaintiff contended that her husband was ailing six months prior to his death, he was not in sound state of mind. Taking advantage of the said fact, the defendants 1 and 2 have created a deed of adoption and got it registered under which the third defendant is shown to be given in adoption to the deceased husband of the plaintiff. Basavannappa never consulted her nor asked her consent or concurrence to the adoption. By impersonation by taking some other person as Basavannappa the deed had been executed and registered. As the said adoption is contrary to the Hindu adoption and Maintenance Act, 1956, it is not valid and legal. Subsequently, by way of an amendment the plaintiff also pleaded that her husband died intestate and was not in sound and disposing state of mind prior to six months of his death and the Will set up by the defendants is a forged and fabricated one and she also denied execution and attestation of the alleged Will set up by the defendants. As the defendants were threatening the plaintiff with her peaceful possession and enjoyment of the 'a' schedule properties, she was constrained to approach the court below for the relief of declaration, for cancellation of the adoption deed and for cancelling the illegal entries made by the revenue authorities acting on the adoption and the alleged Will and she also prayed for restraining the defendants from obstructing the peaceful enjoyment of the plaintiff over the suit schedule 'a' property.
( 3 ) THE defendants contested the said claim. Defendants 1 to 3 filed a joint written statement. Defendant No. 4 is an alienee of one of the items of the suit schedule property. They contended though plaintiff is the lawfully wedded wife of Basavannappa she was not on cordial terms with him, she did not lead a married life and Basavannappa lived at Bidarahali Village with his keep mistress and died there only in his sister's house. Plaintiff is not the heir and has not inherited the properties of the deceased basavannappa. She has no title to the property. She was never in possession of any of the property. She is a resident of Bannikoppa. It is also pleaded that Basavannappa sold his suit house long back to defendant No. 1 and thus defendant is in possession of the house property since then. The specific stand taken by the defendants is that Basavannappa had taken in adoption defendant No. 3 manjunath with all religious ceremonies and giving and taking on 9-7-1992 at Bellatti and has executed an adoption deed which is duly registered on 9-7-1992. Defendant No. 3 has acquired title and possession of all the properties of deceased Basavannappa and plaintiff cannot question his adoption and title. Further, it was stated that the deceased basavannappa has executed a Will dated 9-7-1992 which has been duly attested and duly registered in favour pf defendant No. 3 confirming his adoption and title and
