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2008 (2) KLO 1490
IN THE HIGH COURT OF KARNATAK
N. Kumar, J.
RSA. No. 1613 of 2005
Gangavva and Others - Appellants
Vs.
Ningavva and Others - Respondents
Decided on 30-01-2008
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - Section 7, Explanation: [N. Kumar, J] Capacity of a male Hindu to take in adoption- Consent of the wife -Held, 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 Section 7 makes it clear that if the person has more than one wife living at the time adoption, the consent of all the wives is necessary.
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - Section 10 Clause (iv): [N.Kumar, J] Persons capable of being taken in adoption -Applicability of custom or usage in the matter of adoption - Held, A person who has completed the age of 15 years 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.
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - Section 16: [N. Kumar, J] Presumption regarding registered document relating to adoption -Courts below, refusing to draw the presumption - Conditions to be fulfilled regarding factum of adoption - Held, Firstly, the registered document evidencing adoption should be produced before the Court, secondly, It should be shown that the said document is signed by the person giving the child in adoption, and thirdly, It should be shown that it is signed by the person taking the child in adoption. On facts, held, In the in stance case, the original registered adoption deed is produced. It bears the signature of the person taking the child adoption. But admittedly, it does not bear the signature of the person giving the child in adoption. Once the original adoption deed produced did not bear the signature of the person giving in adoption, then the presumption under Section16 of the Act is not attracted. That is precisely what the Courts below have held.
INDIAN EVIDENCE ACT, 1872 - Section 90: [N. Kumar, J] Thirty years old documents - Presumption - Admissibility of ancient documents without proof - Rule of necessity and convenience - Held, It is extremely difficult and sometimes impossible to prove the hand writing 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. Further, 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. 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.
Kumar, J.
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 Bhararnagouda 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-l 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 300 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-l clearly shows that the first wife of Bharamagouda was alive on the date
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