2020 Supreme(Kar) 119

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
NATARAJ RANGASWAMY, J.
Shri Maruti A/F Laxman Patil – Appellant
Versus
Shri Masanu Krishna Patil – Respondent
Regular Second Appeal No. 2206 of 2006
Decided On : 03-03-2020

Headnote:

Adoption Act, Hindu Adoption and Maintenance Act, 1956 - Section 10(iv) - Adoption Act - Sections 11, 12 and 14 - Suit is filed for declaration and injunction - Adoption of child - Right of adoptive parents to dispose of their properties - Whether plaintiff proves that he is owner of joint share in suit properties through valid registered sale-deed - Whether plaintiff proves lawful possession over suit properties - Whether Defendant no. 1 proves that he is adopted son of deceased - Whether Defendant no. 1 proves that deceased above could not have sold suit properties - Whether plaintiff proves obstruction by defendants - Whether suit is barred by time - It is stated that who is paternal uncle of plaintiff died without leaving any children and that said sold suit properties to plaintiff for a sum and executed a deed of absolute sale - Plaintiff claimed that he was put in possession of suit schedule properties - He also stated that corresponding entries were made in revenue records evidencing name of plaintiff - He claimed that defendant No. 1 had no manner of right title or interest - None less defendant No. 1 in collusion with Revenue Officials had got his name entered in revenue records claiming to be adopted son - Plaintiff contended that he challenged unilateral change of revenue entries to name of defendant No. 1 before Assistant Commissioner in RTS Appeal which was rejected - He therefore filed suit for a declaration of his title and for perpetual injunction in respect of suit schedule properties – Held, In order to answer aforesaid questions averments made in plaint written statement and evidence led by parties if pieced together would indicate that possessed share suit properties and that he had separated from his family by time the adoption deed at Ex.D1 was entered into Ex.D1 was entered into - If Ex.D1 is held to be validly executed and if adoption is held to be valid then it is to be affirmatively held that a coparcener was created as this is intent of Section 12 of Hindu Adoptions and Maintenance Act, 1956 - In present case plaintiff has not disputed or denied signatures found on Ex.D1 - Though Ex.D1 is claimed to be a fabricated document no attempts are made for verification of signatures and this could have been easily done by comparing signatures on Ex.D1 and Ex.P14 - Thus it can safely be held that signatures found on Ex.D1 is signature and since document in question is duly registered presumption available under Section 16 has to be drawn - An attempt was made by contradicting version of DW-3 who had affixed his thumb impression as a witness to Ex.D1 - Only statement that was extracted from DW-3 was that plaintiff and DW-3 were not on good terms – However this statement cannot efface other categorical evidence of DW-3 wherein he stated that he was present at time of adoption ceremony - Evidence of DW-4 may not be all that credit worthy since DW-4 was hardly years at time of adoption - Thus it can safely be held that Ex.D1 was proved beyond doubt by defendant No. 1 - Adoption is not invalid although it took place after thread ceremony of boy was performed – Thus custom is judicially recognized in Bombay State as regards adoption of a child at any age - Once custom is judicially recognized it is not required to be independently proved in subsequent cases - Plaintiff and defendant No. 1 belonged to area which was part of old Bombay State and accordingly such a custom prevailed amongst them as regards adoption of a child at any age - Even independently of this position in old Bombay State evidence was led of two instances of adoption of persons belonging to same caste as plaintiff where a child was adopted at age above fifteen years after Act came into force - Parties in this case belong of District which was part of erstwhile Bombay State and therefore in view of judgment of Hon’ble Apex Court it is not required to be independently prove that a custom existed which permitted adoption of a person who was aged more than fifteen years – Thus adoption in question is held to be valid notwithstanding fact that defendant No. 1 was aged more than fifteen years as on date of adoption - In view of court above reasoning court answer substantial questions framed by this Court and hold that Trial Court and First Appellate Court were not justified in holding that defendant No. 1 was not adopted son and court also hold that Trial Court and First Appellate Court were not justified in holding that plaintiff had acquired absolute right title and interest over suit lands pursuant to sale-deed - Present suit is filed for declaration and injunction and as plaintiff and defendant No. 1 have understood their cases and as both plaintiff and defendant No. 1 have proved lawful execution of Ex.P14 and Ex.D1 they are deemed to be joint owners of suit schedule properties and in order to do substantial and complete justice between them by molding reliefs a preliminary decree of partition is hereby passed declaring that plaintiff and defendant No. 1 are entitled to half share in suit schedule properties - Plaintiff who was placed in possession of suit schedule properties under Ex.P14 shall continue in possession of suit schedule properties until share of defendant No. 1 is properly demarcated in final decree proceedings - Second Appeal is allowed