N.L. Manjunatha & Anr. v. B.L.
Ananda (2023) Karnataka High Court-
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An appeal was filed for paying to set aside the judgment passed by the
Civil Judge. The dispute was related to the partition and separate
possession of the properties. The father of the appellants and
respondent (sons) died about six years before filing a suit leaving them
behind as legal heirs.
During the lifetime of the father, his sons were living together in a joint
family, and thereafter upon his death, the revenue records came to be
changed in the name of one of the appellants without the respondent’s
consent. It was alleged that the said appellant was mismanaging the
joint family properties.
The Trial Court passed a decree in favour of the respondent and then
the first appellate Court confirmed the same as a result of which the
appellant approached the High Court.
The High Court after hearing the contentions of the counsel for both
parties observed, “Even there is no evidence regarding the presence of
said natural mother and adoptive mothers at the time of adoption
function. Therefore, the evidence on record does not establish the
ceremony of giving and taking and consent of the natural mother and
adoptive mothers. … If really Sri. Nanjegowda had adopted the plaintiff
– Ananda, he ought to have described in the Will (Ex.D.14) as his
adoptive son. Said statement of Sri. Nanjegowda in the Will (Ex.D.14) is
relevant under Section 32(5) of the Indian Evidence Act, 1862.”
The Court said that a perfectly valid adoption deed can be made
without an adoption deed and any status which the adopted son gets
by virtue of adoption is due to the proper ceremonies being performed
and not any deed passed as evidence of that adoption.
“In the case on hand there is no adoption deed. Even the evidence led
has not established that ceremonies of giving of the adopted child by
the natural father and taking of child by the adoptive father. Even
there is no whisper regarding the consent of the natural mother and
adoptive mothers either in the pleadings or in the evidence”, further
added the Court. The Court concluded that the trial court rightly held
that the appellant failed to prove the adoption of the respondent and
that the first appellate Court even though right in dismissing the
appeal has erred in holding that the registered adoption deed is a must
for a valid adoption.
Accordingly, the Court answered the substantial question of law and
dismissed the appeal.
Nayansingh Gangaramsingh v. Sumersingh Kewalsingh,...
One Kanhayalalsingh, who had three brothers, died on 25-2-1936
issueless, leaving behind his widow, Tapabai, who died on 28-7-1942.
Kewalsingh and Chayansingh, two of the three brothers of
Kanhayalalsingh, pre-deceased him. Narayansingh, the last of the four
brothers, filed a suit on 2-10-1942 against Sumersingh alias
Shankarsingh, son of Kewalsingh, claiming the properties of
Kanhayalalsingh and Tapabai as the nearest heir, and alleging that the
defendant had taken wrongful possession of the same.
The defendant, who was the son of Kewalsingh, resisted the suit, and
stated that he was adopted to Kanhayalalsingh by his widow, Tapabai,
and was therefore entitled to the property.
He further alleged that he got the stridhanam properties also under a
will executed by the adoptive mother, Tapabai. The Subordinate Judge
decreed it in favour of the plaintiff, holding that the defendant failed to
prove his adoption, that Tapabai was prohibited by her husband from
making an adoption, and that the will set up by the defendant was a
forged document.
The defendant preferred an appeal to the Bombay High Court (‘High
Court'), which held that there was a valid adoption and that there was
no prohibition against an adoption by Tapabai and thus, the plaintiff’s
suit was dismissed. The present appeal was directed against the High
Court’s decree dismissing the plaintiff’s suit. Analysis, Law, and
Decision This Court observed that the Subordinate Judge while holding
that the adoption was not proved, took the view that a separate and
independent declaration of adoption, either contemporaneous with or
subsequent to the adoption, was necessary under the Hindu law, and
as the evidence did not establish any such declaration, the adoption
was probably not in fact made.
This Court noted that the Subordinate Judge had observed that “the
physical act of giving and taking must be accompanied by a specific
declaration on the part of the giver as regards her consent and on the
part of the taker as regards her acceptance.
This want of declaration on the part of the adoptive mother vitiated the
factum of adoption. Not only that but it created a doubt in the mind as
regards the factum of adoption and as regards the consent of Tapabai
to the whole adoption ”.
This Court opined that the Subordinate Judge went entirely wrong in
this view. This Court observed that “what Hindu law required was the
giving and the taking of the boy ‘in adoption' and nothing more. So
long as it was made out that the mother of the boy gave him in
adoption and the adoptive mother took him as her adopted child with
the intention to adopt, no further or separate declaration of any kind
was necessary ”.
This Court noted that the giving and taking of the defendant in
adoption was proved by Tapabai, who took the defendant in adoption,
and Gopabai, who gave the boy in adoption, and there were other
witnesses who were present at the ceremony.
In this case, we have also a formal declaration very soon after the
adoption. This Court noted that there were two deeds of adoption, one
on the same date as the adoption and another two days later. The first
deed could not be registered due to technical difficulty, and the latter
deed therefore came into existence. This Court noted that the High
Court had observed that there was overwhelming evidence on the
question of the fact of adoption and that the assessment of this
evidence by the Subordinate Judge was coloured by the wrong angle of
vision from which he approached the question by imagining that some
sort of independent declaration was necessary.
The Subordinate Judge stated that the adoption was in all probability
foisted upon Tapabai without any knowledge of what she was doing
and that she was forced to make a farce of an adoption. In the face of
the two deeds of adoption and her own deposition, the High Court
observed that it was impossible to agree with the view of the
Subordinate Judge.
The Court noted that the High Court had observed that there was no
case set up of coercion, undue influence, or ignorance.
High Court had reached the correct conclusion, and thus, this Court
affirmed the High Court's decree and dismissed the present appeal
with costs.
