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RFA No.4174/2012 C/w.

RFA CROB.109/2013

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THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 1ST DAY OF AUGUST, 2017

PRESENT

THE HON’BLE MR.JUSTICE A.S.BOPANNA

AND

THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY

RFA No.4174/2012 (DEC/INJ) C/W

RFA CROB.109/2013 IN RFA No.4174/2012

BETWEEN: DUNDAPPA A/F GOUDAPPA DASAPPANAVAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O BENAKATTI, TQ. & DIST: BAGALKOTE-587315.

…APPELLANT (BY SRI.SANJAY B.CHANAL & SRI.S.S.PATIL, ADVS.) AND : 1. SMT.SUNDRAWWA,

W/O RANGANGOUDA BIRADAR PATIL, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O KERAKALMATTI, TQ.BADAMI, DIST: BAGALKOTE-587315. 2. DODDAPPA S/O HANUMAPPA BIRADAR, AGE: 47 YEARS, OCC: SERVICE, R/O C/O MAGAJI BUILDING, NEAR CHAWAN HOSPITAL EXTENSION, DIST: BAGALKOT-587 315.

…RESPONDENTS (BY SRI.M.G.NAGANURI, ADV. FOR R1, SRI.ANAND D.BAGEWADI, ADV. FOR R2) THIS APPEAL IS FILED UNDER SECTION 96 AND R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.11.2012 PASSED IN O.S.NO.57/2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BAGALKOT, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

R

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IN RFA CROB.109/2013 BETWEEN: SMT.SUNDRAWWA W/O RANGANAGOUDA BIRADAR PATIL, AGE: 58 YEARS, OCC: AGRICULTURE, R/O KERAKALMATTI-587 206, TALUKA: BADAMI, DIST: BAGALKOT.

…CROSS OBJECTOR (BY SRI.M.G.NAGANURI, ADV.) AND: 1. SHRI DUNDAPPA HANAMAPPA BIRADAR, FALSELY CALLING HIMSELF AS DUNDAPPA A/F GOUDAPPA DASAPPANAVAR, AGE: 51 YEARS, OCC: AGRICULTURE,

R/O BENAKATTI-587 120, TALUKA AND DIST: BAGALKOT.

2. SHRI.DODDAPPA S/O HANUMAPPA BIRADAR, AGE: 50 YEARS, OCC: SERVICE, R/O C/O MAGAJI BUILDING NEAR CHAWAN HOSPITAL, EXTENSION, BAGALKOT-587 101.

…RESPONDENTS

(BY SRI.SANJAY B.CHANAL & SRI.S.S.PATIL, ADV. FOR R1, SRI.ANAND D.BAGEWADI, ADV. FOR R2) THIS RFA CROB. IN RFA NO.4174/2012 IS FILED UNDER ORDER 41 RULE 22 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.11.2012 PASSED IN O.S.NO.57/2010 ON THE FILE FO THE PRL. SENIOR CIVIL JUDGE, BAGALKOT, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

THIS RFA AND RFA CROB. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, DR. H. B. PRABHAKARA SASTRY J., DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

The plaintiff in the Court below is the appellant in

RFA No.4174/2012. He had filed a suit in the Court

below for the relief of declaration and injunction with

respect to the suit schedule properties as against

defendants therein. Respondent No.1 in this appeal,

who is the cross objector in RFA Crob.109/2013 was

defendant No.1 in the Court below. She had also filed a

counter claim in the Court below. The Court below by

its judgment and decree dated 21.11.2012, decreed the

suit of the plaintiff in part and ordered and decreed that

the plaintiff and defendant No.2 are entitled to half

share in the suit schedule properties. It also allowed

the counter claim of defendant No.1 holding that she

was entitled to half share in the suit schedule

properties. It is the said judgment and decree, the

appellant and cross-objector have assailed in their

respective Regular First Appeal and Cross Objection in

the said appeal respectively. The appellant has prayed

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for setting aside of the judgment and decree under

appeal and also sought for dismissal of the suit of the

respondent, whereas, the cross objector in her cross-

objection filed under Order 41 Rule 22 of CPC has

prayed to set aside the finding of the trial Court on

issue Nos.2 to 5 in the impugned judgment and decree

and also has prayed for dismissal of the suit of the

plaintiff.

2. In his memorandum of appeal, the appellant

has taken a contention that the finding of the Court

below on issue Nos.1 and 6 and additional issue Nos.1

and 3 are erroneous and the Court below has grossly

erred in holding that the appellant was not the exclusive

owner of the suit schedule ‘A’ properties. He has further

contended that the Court below has erred in not

considering the error of the Assistant Commissioner and

Panchayat Authorities and by further holding that the

appellant and respondent No.2 are entitled to half share

in the suit schedule ‘A’ properties.

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3. On the other hand, the cross objector in her

memorandum of cross-objection has taken a contention

that the plaintiff was aged above 15 years as on the date

of alleged adoption, as such, the adoption is bad in the

eye of law. She has further taken a contention that the

Court below has committed an error by applying the

presumption under Section 90 of the Indian Evidence

Act, 1872, with respect to the certified copy of alleged

Adoption Deed at Ex.P8. She has further contended that

the Court below committed an error by ignoring the fact

that the plaintiff did not examine the scribe of Ex.P8

and that the plaintiff did not establish that ceremonies

for adoption were duly performed.

4. In response to the notices, the parties are

represented by their learned counsels. The lower Court

records were called for and the same are placed before

this Court.

5. Heard the arguments of the learned counsel

for both sides. Perused the memorandum of appeal,

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cross-objection, impugned judgment and decree, lower

Court records and materials placed before this Court.

6. After hearing the argument from both side

and perusing the materials placed before this Court, the

points that arise for our consideration are:

i. Whether the appeal is not maintainable

before this Court?

ii. Whether the appellant is the adopted

son of the propositus deceased

Goudappa?

iii. Whether the suit schedule properties

under dispute are ancestral properties

of deceased Goudappa?

iv. What reliefs the parties are entitled to?

7. For the sake of convenience, the parties

would be referred to with the ranks they were holding

respectively in the Court below.

8. The summary of the case of the

plaintiff(appellant herein) as could be gathered from the

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materials placed before this Court is that, propositus

Goudappa and his wife Smt.Yamanawwa, who had only

two daughters by name Kamalawwa and Sundarawwa,

adopted the plaintiff Dundappa, who was the elder son

of Smt.Kamalawwa. In that regard, not only the

adoption ceremony and rituals were performed, but also

an adoption deed came to be registered on 12.08.1983

before the office of the Sub-Registrar, Bagalkot. The

community to which the parties belong allows adoption

of a person who is major in his age. After the death of

Goudappa, the plaintiff Dundappa and his adoptive

mother succeeded to the suit properties as the only

heirs. At the consent of defendant No.1, and by virtue

of oral family arrangement, the names of plaintiff and

his adoptive mother Smt.Yamanawwa were entered in

revenue records. After the death of Smt.Yamanawwa,

the plaintiff became the exclusive owner and successor

to the suit schedule properties. However, defendant

No.1 illegally got her name entered in revenue records

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and denied the exclusive right of the plaintiff. Hence,

the plaintiff filed the suit for declaration.

The summary of the contention of the defendant

No.1 as could be seen from her written statement is

that, the plaintiff Dundappa has never been an adoptive

son of propositus Goudappa. There was no adoption of

the plaintiff by the said Goudappa at any point of time,

as such, the alleged adoption deed dated 12.08.1983 is

also not accepted. She further denied all the plaint

averments made by the plaintiff, except that herself

along with Kamalawwa were the only daughters of

propositus Goudappa and his wife Smt. Yamanawwa,

and that the plaintiff was the elder son of said

Kamalawwa. It is her further contention that entries of

her name in the revenue records, for which she was

entitled to, are made in accordance with law. She

denied of any partition said to have been taken place

with respect to the suit schedule properties. She also

contended that Civil Courts have no jurisdiction to

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declare the orders passed by the Revenue Court,

inasmuch as they are self contained codes. Therefore,

she filed a counter claim claiming awarding half share

by way of partition and separate possession in the suit

properties and to award future mesne profits.

Defendant No.2 in his written statement had

admitted the averments of the plaint and further

submitted that, if the court comes to the conclusion

that plaintiff was the adopted son and defendant No.1

was legal heir to Goudappa, they were entitled to share

in the suit properties, then defendant No.1 may be

allotted share in the suit properties holding that he was

the legal heir of Kamalawwa who is the daughter of

deceased Goudappa and he was ready to pay the court

fee.

9. Based on the pleadings of the parties, the

Court below framed the following issues:

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i. Whether the plaintiff proves that plaintiff

is the exclusive owner of the suit schedule

‘A’ properties?

ii. Whether the plaintiff proves that plaintiff

is the adopted son of Goudappa?

iii. Whether the suit is not maintainable in

the present form as contended in para

No.17 of the W.S.?

iv. Whether the Court fee paid is incorrect? If

so, what is the correct Court fee?

v. Whether the suit is bad for non-joinder of

necessary parties?

vi. Whether the plaintiff is entitled to the

relief sought for?

vii. What order or decree?

Additional Issues:

i. Whether defendant No.1 is entitled to ½

share in the suit properties?

ii. Whether defendant No.1 is entitled to

mesne profits?

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iii. Whether the defendant No.1 is entitled

to share in the suit properties?

To prove his case, the plaintiff himself got

examined as PW1 and got examined one Sri. Neelappa

Bhimappa Dasappanaver as PW2. From the plaintiff’s

side documents from Exhibits P1 to P18 were produced

and got marked. From the 1st defendant’s side, the 1st

defendant Smt. Sunderawwa got herself examined as

DW1 and got produced and marked documents from

Exs.D1 to D12. The 2nd defendant did not choose to

enter witness box.

After hearing both sides, in its detailed judgment,

the Court below answered issue Nos.1, 3, 4, 5 and

additional issue No.2 in the negative, issue No.2 and

additional issue Nos.1 and 3 in the affirmative and issue

No.6 partly in the affirmative. With that, the Court

below decreed the suit of the plaintiff in part and also

decreed the counter claim of the defendant No.1. It is

the said judgment and decree that has been assailed by

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the plaintiff and defendant No.1 in their appeal and the

cross-objection respectively.

Re: Maintainability:-

10. It is the argument of the learned counsel for

the respondent No.1/defendant No.1 that the appeal is

not maintainable since the remedy lies in the form of

revision before the jurisdictional Deputy Commissioner.

No doubt the jurisdictional Deputy Commissioner has

the power of revision under Section 136 of the

Karnataka Land Revenue Act, 1964, which Section is

reproduced hereinbelow:

“Section 136 – Appeal and Revision

(1) The provisions of Chapter V shall not apply to

any decision or order under this Chapter.

(2) Any person affected by an order made under

sub-section (4) or an entry certified under sub-

section (6) of section 129 may, within a period of

sixty days from the date of communication of the

order or the knowledge of the entry certified,

appeal to such officer as may be prescribed by

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the State Government in this behalf and his

decision shall be final.

(3) The Deputy Commissioner may, on his own

motion or on application of a party, call for and

examine any records made under section 127

and section 129 and pass such orders as he may

deem fit:

Provided that no order shall be passed

except after hearing the party who would be

adversely affected by such order.”

However, what cannot be forgotten is that the

relief sought for by the plaintiff in his plaint in the Court

below is for declaration to declare that he is the

exclusive owner of the suit schedule ‘A’ properties by

holding that the order passed by the Assistant

Commissioner, Bagalkote in RTS Appeals No.27 and 28

of 2008-09 dated 01.02.2010 and also to the

subsequent M.R.No.553/09-10 of Shirur village and 267

of Hallur village effected in respect of the suit land

properties and the Taluk Panchayat order passed in

2/08-09 dated 02.04.2009 in respect of the house

property are null and void. He has also sought for a

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consequential relief of injunction against the defendant.

As already observed above, the Court below through its

impugned judgment and decree has decreed the suit of

the plaintiff in part ordering and decreeing that plaintiff

and defendant No.2 are entitled to ½ share each in the

suit schedule properties and by decreeing the counter

claim of the defendant No.1, she was also held to be

entitled to ½ share in the suit schedule properties.

Thus, the main relief of the plaintiff is for declaration

regarding his alleged ownership of the suit schedule ‘A’

properties. Since the plaint averments clearly show that

the defendants have denied his alleged ownership over

the said property, he has sought the said relief of

declaration. As entries in the revenue records have

come in the way of declaring his ownership, he has

prayed to hold those revenue entries as null and void.

11. Section 135 of the Karnataka Land Revenue

Act, 1964 reads as below:

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“Section 135 – Bar of suits:

No suit shall lie against the State

Government or any officer of the State

Government in respect of a claim to have an entry

made in any record or register that is maintained

under this Chapter or to have any such entry

omitted or amended:

Provided that if any person is aggrieved as

to any right of which he is in possession, by an

entry made in any record or register maintained

under this Chapter, he may institute a suit

against any person denying or interested to deny

his title to such right, for a declaration of his right

under Chapter VI of the Specific Relief Act, 1877;

and the entry in the record or register shall be

amended in accordance with any such

declaration.”

Reading of the above Section makes it clear that

its proviso enables a person who is aggrieved as to any

right of which he is in possession by an entry made in

any record or register maintained by the Revenue

Authorities under Chapter XI of the said Act, can

institute a suit against any person denying or interested

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to deny his title, for the relief of declaration of his right.

Similarly, even Section 62(b) of the very same Act also

enables the private parties to institute a civil suit in the

Civil Court for the purpose of establishing their private

right, although it may be affected by any entry in any

land record. Therefore, the suit of the plaintiff in the

Court below was maintainable. Consequently,

challenging the judgment and decree passed in the said

suit in the form of present appeal is also maintainable.

As such, the contention of the learned counsel for the

respondent No.1 herein on the point of maintainability

is not acceptable.

Re: Adoption:-

12. The plaintiff’s stake as a major share holder

in the property of the propositus Goudappa, is on the

contention that, though he was one of the grand sons of

Goudappa, but he was given to the said propositus in

adoption which was documented and registered on

12.08.1983. The brother of the plaintiff, who is the

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second defendant, though has fully endorsed the case of

the plaintiff, but the second daughter of the said

propositus Sundarawwa, who is the defendant No.1,

has seriously denied the alleged adoption of the plaintiff

by the propositus. However, the undisputed genealogy

of the family of the propositus prior to the alleged

adoption is as below:

Goudappa Giriyappa Dasappanavar

(died on 22.07.1997)

Yamanawwa (wife)

(died on 01.11.2001)

Kamallawwa – Died in 1981 Sundrawwa (defendant No.1)

Hanamappa Biradar Patil (Husband)Died on 04.07.2000

Dundappa (Plaintiff)

(1st Son)

Doddappa (Defendant No.2)

(2nd Son)

(Claims to be adopted son of Goudappa Giripap Dasappanavar)

13. The plaint averments as well the evidence of

the plaintiffs in the Court below regarding the alleged

adoption is that, one Goudappa, S/o. Giriyappa

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Dasappanavar, was the propositus of the family of the

plaintiff and defendants. The said Goudappa had a wife

by name Smt. Yamanawwa and two daughters namely,

Kamalawwa and Sundarawwa (defendant No.1), who

were given in marriage and residing in their respective

husband’s house. The said Kamalawwa had got 2 sons

namely Dundappa (plaintiff) and Doddappa (defendant

No.2). Since the said Goudappa and Yamanawwa had

no male issues, at their joint request, natural father of

Dundappa by name Hanumappa gave his eldest son

Dundappa (plaintiff) in adoption to the propositus

Goudappa and his wife. The said adoption was through

ceremonies performed in the family and deed of

adoption was also executed by Goudappa and

Yamanawwa, which came to be registered on

12.08.1983 before the office of the Sub-Registrar,

Bagalkot.

14. It is further the pleading and the evidence of

the plaintiff in the Court below that the adoption

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ceremony was as per the customs prevailing in Hindu

Reddy community, to which they were belonging to and

that the said community was permitting in its custom,

adoption of a person who is major in his age also.

Hence, the plaintiff, though was major in his age as on

the date of adoption, was taken in adoption by the

propositus and his wife as per their customs. In the

adoption ceremony, which was performed as per the

customs prevailing in their Hindu Reddy community,

defendant No.1 was also present and had given her

consent. As such, after the adoption, the plaintiff has

become son of the propositus and acquired all rights in

his property as a son.

15. In support of his contention regarding the

adoption, the plaintiff got produced and marked a

certified copy of the registered Adoption Deed at Ex.P8.

He also got examined one Sri. Neelappa Bhimappa

Dasappanaver as PW2. The said PW2 in his evidence

has stated that himself and also the parties to the suit

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belong to Hindu Raddy community, in which

community there is a custom of adopting a person who

is major in his age also. He has further corroborated

the plaintiff’s version stating that the propositus

Goudappa and his wife took the plaintiff in adoption

and the natural father of the plaintiff gave the plaintiff

to the propositus in adoption under customary

ceremony for adoption. He has also stated, in the said

ceremony he was also present. The witness has further

stated that, after completion of adoption ceremony in

the presence of witness on 12.08.1983, an Adoption

Deed was written and was registered. The said

document was signed by both the adopting father,

mother and natural father of the plaintiff, the plaintiff,

their relatives and also defendant No.1 and her

husband. The evidence of PWs.1 and 2 regarding

adoption was seriously disputed in their cross-

examination made by the 1st defendant’s side. Similarly

suggestions were made in the cross-examination of

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DW1(defendant No.1) which suggestions were not

admitted as true by the said witness.

It is in this background, the above evidence of

parties regarding the adoption, so called the certified

copy of Adoption Deed at Ex.P8 is to be analysed.

16. The learned counsel for the respondent No.1

herein at the outset objected to considering the said

document at Ex.P8 as secondary evidence, stating that

no proper foundation was laid by the plaintiff to

produce the secondary evidence. In his support, the

learned counsel relied on a decision of the Hon’ble

Supreme Court in the case of H. Siddiqui (Dead by

LRs) Vs. A. Ramalingam, reported in (2011) 4 SCC

240. In the said case, while appreciating Section 65 of

the Evidence Act, 1872 regarding admissibility of a

document in secondary evidence, the Hon’ble Apex

Court was pleased to observe that, where the original

documents were not produced at any time nor any

factual foundation was laid for giving secondary

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evidence, it was impermissible to allow a party to

adduce secondary evidence. The secondary evidence

must be authenticated by foundational evidence that

alleged copy is in fact a true copy of the original. The

Hon’ble Apex Court was further pleased to observe that,

for admitting such a document as secondary evidence,

the Courts would be obliged to examine the probative

value of the document produced in the Court or its

contents for deciding the question of admissibility of the

document in secondary evidence.

If the principle laid down in the above case is

applied to the instant case, it can be observed that, in

the instant case, according to the learned counsel for

the respondent No.1, plaintiff has not led any

foundation for the production of secondary evidence in

the Court below. The plaintiff in his plaint in the Court

below, except stating that the adoption was recorded in

a written document, which is the Adoption Deed and

was registered on 12.08.1983, has nowhere stated as to

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with whom the original document is and where it lies.

However, for the first time it is only in the cross-

examination of DW1(defendant No.1), he made a

suggestion to the witness stating that original of the

said document was in her custody, which suggestion

was not admitted as true by the said witness. When in

fact the plaintiff claims himself to be an adopted son of

the propositus Goudappa, it was expected of him to

retain and maintain the alleged registered Adoption

Deed in its original with him. About non-possessing of

the original copy with him also, he has not shown any

reason. However, few more case laws on the concept of

secondary evidence can also be perused.

17. One of the earliest judgment which speaks

about the objection as to the mode of proof of a

document can be found in the judgment of the privy

counsel in Gopal Das and another Vs. Sri. Thakurji

and others reported in AIR 1943 Privy Council 83. In

the said case, with respect to Order 13 Rule 3 of the

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Civil Procedure Code, 1908, regarding objection as to

the mode of proof, the Hon’ble Privy Counsel was

pleased to make an observation that, where the

objection to be taken is not that the document is in

itself inadmissible but that the mode of proof put

forward is irregular or insufficient, it is essential that

the objection should be taken at the trial stage before

the document is marked as an exhibit and admitted to

the record. It was further observed that a party cannot

lie by until the case comes before a Court of appeal and

then complain for the first time of the mode of proof.

18. A similar question about the mode of proof of

a certified copy of a sale deed when laying foundation

for admissibility of the said document as a secondary

evidence under Section 65(a) and (f), came before the

Hon’ble Supreme Court in an appeal in Smt.

Dayamathi Bai Vs. K. M. Shaffi reported in AIR 2004

SC 4082. In the said case, a certified copy of a sale

deed at Ex.P1 dated 14.11.1994 was marked and

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admitted in evidence in the trial Court. Since no

objection was raised from the defendant’s side, relying

upon the said document, the suit was also decreed. The

lower Appellate Court found that the plaintiff had not

laid foundation for admissibility of the secondary

evidence under Section 65(a) and (f) and in the

circumstances, the sale was not proved. The High

Court on consideration of various authorities, came to

the conclusion that, since copy of Ex.P1 was a certified

copy and since it was more than 30 years old document,

the trial Court was right in invoking a presumption

under Section 90 of the Evidence Act. Consequently,

the appeal was allowed. In the Civil appeal, the Hon’ble

Apex Court, apart from considering the presumption

under Section 90 of the Evidence Act, also gave a

detailed consideration about the mode of proof of a

document. In the said process, it referred to its

previous judgments in R.V.E Venkatachala Gounder v.

Arulmigu Viswesaraswami and V.P. Temple and another

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reported in AIR 2003 SC 4548 and more particularly,

para 20 of the said judgment, which it reproduced. The

said para is most pertinent to the present case also, as

such, it is reproduced hereinbelow:

“20. The learned counsel for the defendant-

respondent has relied on Roman Catholic Mission

v. State of Madras (AIR 1966 SC 1457) in support

of his submission that a document not admissible

in evidence, though brought on record, has to be

excluded from consideration. We do not have any

dispute with the proposition of law so laid down in

the above said case. However, the present one is

a case which calls for the correct position of law

being made precise. Ordinarily, an objection to the

admissibility of evidence should be taken when it

is tendered and not subsequently. The objections

as to admissibility of documents in evidence may

be classified into two classes (i) an objection that

the document which is sought to be proved is itself

inadmissible in evidence; and (ii) where the

objection does not dispute the admissibility of the

document in evidence but is directed towards the

mode of proof alleging the same to be irregular or

insufficient. In the first case, merely because a

document has been marked as “an exhibit” an

objection as to its admissibility is not excluded

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and is available to be raised even at a later stage

or even in appeal or revision. In the latter case, the

objection should be taken when the evidence is

tendered and once the document has been

admitted in evidence and marked as an exhibit,

the objection that it should not have been admitted

in evidence or that the mode adopted for proving

the document is irregular cannot be allowed to be

raised at any stage subsequent to the marking of

the document as an exhibit. The latter proposition

is a rule of fair play. The crucial test is whether an

objection, if taken at the appropriate tendering the

evidence to cure the defect and resort to such

mode of proof as should be regular. The omission

to object becomes fatal because by his failure the

party entitled to object allows the party tendering

the evidence to act on an assumption that the

opposite party is not serious about the mode of

proof. On the other hand, a prompt objection does

not prejudice the party tendering the evidence, for

two reasons; firstly, it enables the Court to apply

its mind and pronounce its decision on the

question of admissibility then and there; and

secondly in the event of finding of the Court on the

mode proof sought to be adopted going against the

party tendering the evidence, the opportunity of

seeking indulgence of the Court for permitting a

regular mode or method of proof and thereby

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removing the objection raised by the opposite

party, is available to the party leading the

evidence. Such practice and procedure is fair to

both the parties. Out of the two types of

objections, referred to hereinabove, in the latter

case, failure to raise a prompt and timely objection

amounts to waiver of the necessity for insisting on

formal proof of a document, the document itself

which is sought to be proved being admissible in

evidence. In the first case, acquiescence would be

no bar to raising the objection in a superior Court.”

After referring to the above paragraph, the Hon’ble

Apex Court was further pleased to refer to the

commentary in Sarkar on Evidence, 15th Edition, page

1084. The Hon’ble Apex Court was pleased to observe

that, it was not open to the appellant to object to the

mode of proof before the lower Appellate Court, since

the appellant had not raised any objection while the

certified copy of the sale deed was taken on record and

marked as exhibit in the trial Court. As such, it was

not open to the appellant to object to the mode of proof

before the lower Appellate Court. It further observed

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: 29 :

that, if the objection had been taken at the trial stage,

the plaintiff might have met it by calling for the original

sale deed, which was on record in collateral

proceedings. With this, the Hon’ble Apex Court was

pleased to dismiss the Civil Appeal.

The same principle applies in the case on hand

also, while the certified copy of adoption deed was

admitted in evidence and marked as Ex.P8 in the Court

below, without any objection from the defendant’s side,

the same defendant now in its appeal cannot raise any

contention of the plaintiff not laying foundation to lead

secondary evidence. Had the defendant No.1 raised

such an objection in the Court below, probably the

plaintiff could have met it in some manner. As such,

the argument of the learned counsel for the respondent

No.1 that Ex.P8, which is a certified copy of the

adoption deed cannot be relied upon, is not acceptable.

19. Ex.P8 is shown to be an Adoption Deed

(Dattaka Patra), wherein party No.1 is the plaintiff, who

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: 30 :

is claiming to be an adopted son, party No.2 is

Goudappa S/o. Giriyappa Dasappanavar, Propositus

and his wife Smt. Yamanawwa, who are said to have

adopted the plaintiff and party No.3 Hanumappa, S/o.

Dodappa Biradar, who is said to be the natural father of

plaintiff, who is said to have given the plaintiff in

adoption to party No.2. The said deed of adoption

explains that the propositus and his wife were having

no male issues and decided to adopt the plaintiff who

was none-else than their grand son born out of their

first daughter Kamalawwa. The said document further

shows that on 12.08.1983, in the house of propositus

Goudappa at Benakatti, as per the Hindu religion

rituals and in the presence of elderly people and their

community members, party No.1 Dundappa, the

plaintiff, was given in adoption by party No.3, his

natural father, to adopting parents i.e, party No.2

propositus Goudappa and his wife. The said document

is shown to have signed by all the three parties. When

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: 31 :

this document was marked as Exhibit in the

examination-in-chief of the plaintiff, none of the

defendants raised any objection for production of the

certified copy and marking it as exhibit. Even PW2 –

Neelappa Bhimappa Dasappanavar also in his evidence

has stated that the plaintiff, his natural father and

adoptive parents have all signed in the adoption deed.

He has further stated that, even defendant No.1 and her

husband also have put their signature to the adoption

deed. The said statement of PW2 has not been denied

or disputed in his cross-examination. Therefore, it

remains that the adoption was recorded in a registered

document and it has been signed by the person (natural

father) giving a person (adoptee) in adoption and the

person (adoptive parent) taking that person in adoption.


in his argument brought to our notice the judgment of

the learned Single Judge of this Court in the case of

Gangavva and Others Vs. Ningavva and Others

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: 32 :

reported in ILR 2008 KAR 1667, wherein for the

purpose of drawing presumption under Section 16 of

the Hindu Adoption and Maintenance Act, 1956, it was

observed that three conditions are required to be

fulfilled, they are -

1) The registered document evidencing

adoption should be produced before the

Court,

2) It should be shown that the said

document is signed by the person giving

a child in adoption and

3) It should be shown that it is signed by

the person taking the child in adoption.

In the instant case, since all these three

conditions are fulfilled, a presumption as under Section

16 of the said Act can be drawn. The said Section reads

as below:

“16. Presumption as to registered documents

relating to adoption-

Whenever any document registered under any law

for the time being in force is produced before any

court purporting to record an adoption made and

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: 33 :

is signed by the person giving and the person

taking the child in adoption, the court shall

presume that the adoption has been made in

compliance with the provisions of this Act unless

and until it is disproved.”

As such, if the aspect of not laying foundation to

lead secondary evidence is kept aside, the adoption deed

at Ex.P8 would entitle the Court to presume as above.

When such a presumption is discharged, the burden of

disproving the document or rebutting the same would

shift upon the person who denies the adoption, who is

respondent No.1/defendant No.1 in the instant case.

21. Apart from solely relying upon the Adoption

Deed at Ex.P8, the alleged adoption can also be tested

and verified upon the other available evidences also.

22. It is not in dispute that the parties to the

suit belong to Hindu Raddy community and parties to

the alleged adoption are from old Bombay Province area.

According to the plaintiff and his evidence as PW1, there

is a custom in their community of giving and taking in

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: 34 :

adoption, a person who is major in his age also. To

support his evidence, PW1 has also produced and got

marked certified copies of three adoption deeds at Exs.

P16, P17 and P18. Further, according to the plaintiff,

in the instant case, while adopting him, rituals were

also followed and ceremony was performed. The said

pleading was vouchsafed by defendant No.2, who is

none else than the own brother of the plaintiff by birth.

Moreover, PW2, who claims to be a relative for both the

sides in the suit, has also supported the case of the

plaintiff regarding the existence of the custom and

performance of rituals in adopting the plaintiff by the

propositus’s family.

23. Though the pleading and evidence of the

parties are on the above lines, the cross-objector who is

the respondent No.1 in the main appeal has objected to

the same. It is the serious contention of the learned

counsel for the respondent No.1 that the custom said to

be prevailing in their community enabling the parties to

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 35 :

adopt a person who is major in age has not been

established. In his support, the learned counsel relied

upon the judgment of the Hon’ble Apex Court in the

case of Salekh Chand (dead) by LRs Vs. Satya Gupta

and Others reported in (2008) 13 SCC 119, wherein

the Hon’ble Apex Court with respect to essentials and

burden of proving the existence of a custom is

concerned, was pleased to observe that, the parties

setting up a custom, must allege and prove the custom

on which it relies. The custom in order to be binding

must derive its force from the fact that by long usage it

has obtained the force of law. Thus, what must be

proved is that the usage has been acted upon in

practice for such a long period and with such

invariability to show that it has, by common consent,

been submitted to as the established governing rule of a

particular locality. It was further observed in the same

case that, in the English rule that “a custom in order

that it may be legal and binding, must have been used

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 36 :

so long that the memory of man runneth not to the

contrary” should not be strictly applied to Indian

conditions. Custom is a matter of fact and it must be

established inductively and not be a priori method. It

cannot be extended by analogy or enlarged by parity of

reasoning. One custom cannot be deduced from

another. The Hon’ble Apex Court further observed that,

a custom may be proved by general evidence as to its

existence by members of the tribe or family who would

be cognizant of its existence or its exercise without

controversy.


also relied upon another judgment of the Hon’ble

Supreme Court in the case of Harnek Singh Vs.

Pritam Singh & Ors. Reported in 2013 AIAR (Civil)

516. In the said case, regarding pleading and proving

of custom, the Hon’ble Court was pleased to observe

that, if any party wants the Court to rely on a custom,

onus is on the party to plead the custom in the precise

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: 37 :

terms and lead evidence to establish the said custom.

In the instant case, as already observed above, the

plaintiff as PW1 and his witness who is PW2, have

stated that there is a custom in their community of

giving and taking in adoption a person who is above the

age of 15 years. The pleading of the plaintiff in that

regard has been admitted by the defendant No.2, who is

supporting the case of the plaintiff.

25. The plaintiff has got produced certified

copies of three adoption deeds at Exs. P16, P17 and

P18. Ex.P16 is with respect to adoption said to have

taken place on 22.04.1958, as could be seen in the said

document. Ex.P17 shows the date of adoption as

22.04.1958 and Ex.P18 shows the date of adoption as

10.03.1988. According to the witnesses producing

these documents, in all these three adoptions, the age of

the adopted person was above 15 years age, which

aspect has not been disputed from the defendants’ side.

Apart from the same, PW1 in his evidence has stated

RFA No.4174/2012 C/w.

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: 38 :

that in his adoption, the rituals as prevailing in their

Hindu Reddy community and the custom was followed.

He was subjected to a thorough and searching cross-

examination from the defendants’ side on this aspect,

wherein he has stated that, at the time of adoption

ceremony, a swamiji (head of religion) by name Basayya

was summoned. He has named several other persons

who were present in the said ceremony.

26. Similarly, PW2, in his evidence has given a

detailed account as to what transpired at the time of

adoption. In his cross-examination, some more details

were elicited from the defendants’ side, wherein he has

stated that adoption took place in the morning at about

10.00 am and at that time, rituals took place keeping

the sacred fire in the middle through the head of their

community. “D ¸ÀªÀÄAiÀÄzÀ°è DZÁAiÀÄð ºÉÆÃªÀÄ-ºÀªÀ£À D ¢ªÀ̧ À

£ÀqÉ¬ÄvÁ CAzÀgÉ £ÀqÉ¬ÄvÀÄ.” The said statement regarding

conducting the rituals and the statement of the said

witness that in their community adopting a person who

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: 39 :

is major in his age is permitted, has not been denied or

disputed specifically in his cross-examination.

27. Before proceeding further, it is appropriate

to make an observation regarding trustworthiness of the

evidence of DW1. Defendant No.1 in the Court below

was examined as DW1. She had also had filed a

counter claim. Further, she is also a cross-objector in

RFA Crob.No.107/2013. She is the only contesting

defendant/respondent in the matter. Though she has

given a detailed evidence denying the contentions raised

by the plaintiff, more particularly with respect to the

alleged adoption of the plaintiff by the propositus

Goudappa, after she denied a suggestion made to her in

her cross-examination from the plaintiff that she was

also present when the adoption deed was executed and

has subscribed her signature to it, few more questions

were put to her from the plaintiff’s side in her cross-

examination. The said portion of the evidence is


RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 40 :

“£Á£ÀÄ £ÀªÀÄä ªÀQÃ®jUÉ Cfð ºÁPÀÄªÁUÀ ªÀÄvÀÄÛ vÀPÀgÁgÀÄ

ºÁPÀÄªÁUÀ À̧»ªÀiÁr PÀ½¹zÉÝÃ£É ªÀÄvÀÄÛ £À£Àß À̧»

UÀÄwð À̧ÄvÉÛÃ£É. FUÀ ¸ÁQëUÉ £Á£ÀÄ ºÁQzÀ PÉÊ¦üAiÀÄvï ªÉÄÃ°£À

À̧» vÉÆÃj À̧ÄwÛzÀÄÝ CzÀÄ vÀ£Àß À̧» C¯Áè CAvÁ ºÉÃ¼ÀÄvÁÛ¼É.

FUÀ ¸ÁQëUÉ PÉÊ¦üAiÀÄvï£À°è À̧°è¹zÀ ¥ÀæªÀiÁt ¥ÀvÀæzÀ ªÉÄÃ°£À

À̧» vÉÆÃj À̧ÄwÛzÀÄÝ CzÀÄ vÀ£ÀßzÀÄ C®è CAvÁ ºÉÃ¼ÀÄvÁÛ¼É.

FUÀ ¸ÁQëUÉ vÀ£Àß ¸ÁQë ¥ÀæªÀiÁt¥ÀvÀæzÀ°ègÀÄªÀ J®è À̧»UÀ¼À£ÀÄß

vÉÆÃj À̧ÄwÛzÀÄÝ CªÀÅ vÀ£ÀßªÀÅ C®è CAvÁ ºÉÃ¼ÀÄvÁÛ¼É. FUÀ

¸ÁQëUÉ 12-08-1983 gÀAzÀÄ §gÉzÀ zÀ̧ ÁÛªÉÃf£À ªÉÄÃ°gÀÄªÀ

À̧ÄAzÀgÀªÀé UÀAqÀ gÀAUÀ£ÀUËqÀ ¥ÁnÃ® CAvÁ À̧» ªÀiÁrzÀÄÝ

CzÀÄ vÀ£ÀßzÉÃ À̧»AiÀiÁ CAvÀ ºÉÃ½zÀÝPÉÌ CzÀÄ C®è (gÀhÄgÁPïì

¥Àæw) CAvÁ ºÉÃ¼ÀÄvÁÛ¼É. FUÀ ¸ÁQëUÉ vÀ£Àß ªÀPÁ®wÛ£À°ègÀÄªÀ

À̧» vÉÆÃj À̧ÄwÛzÀÄÝ CzÀgÀ°ègÀÄªÀ À̧» vÀ£ÀßzÀÄ C¯Áè CAvÁ

ºÉÃ¼ÀÄvÁÛ¼É.”

Her above statement, wherein she denied her

alleged signatures in her Vakalath affidavit evidence

would clearly go to show that she had only determined

to deny each and every signature shown to her

suggesting the same were her signatures. As such, the

said conduct of the witness casts a shadow of suspicion

about the truthfulness in her entire evidence. However,

keeping the said aspect also aside, for the limited

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 41 :

purpose, her evidence is being analysed in this

judgment.

28. Thus, the evidence led from the plaintiff’s

side establish that there is a custom in their community

of adopting a person above the age of 15 years and that

the plaintiff was given in adoption to the family of

propositus by his natural father. It is not in dispute

that by the time the plaintiff was given in adoption, his

natural mother was not alive. As such, it is only the

natural father, who had given him in adoption. In this

juncture, the statement that has come out in the cross-

examination of PW1 cannot be lost sight of. The said

statement is reproduced hereinbelow:

“£Á£ÀÄ zÀvÀÛPÀ DVzÀÄÝ AiÀiÁªÁUÀ CAzÀgÉ 12.08.1983gÀAzÀÄ.

£Á£ÀÄ zÀvÀÛPÀ DUÀÄªÁUÀ zÀvÀÛPÀ ¥ÀqÉzÀAvÀºÀ UËqÀ¥Àà£À

ªÀiÁ£À¹PÀ ¹Üw À̧j EgÀ°®è CAzÀgÉ À̧Ä¼ÀÄî.”

Thus, while making a suggestion that, as at the

time of adoption the mental health of propositus

Goudappa was not alright, the defendant No.1 has

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: 42 :

admitted that plaintiff was adopted by the said

Goudappa.

29. Apart from the above, two more decisions

relied upon by the learned counsel for the appellant

herein can be looked into.

In the case of Alturi Brahmanandam Vs. Anne

Sai Bapuji, reported in (2010) 14 SCC 466, Hon’ble

Apex Court with respect to proof of custom was pleased

to observe that, normally all customs must be proved,

exception to it is where High Court recognizes that a

custom is prevailing in the State and is legal and valid

and decision to such effect remaining unchallenged and

binding, custom gets blended into law and proof thereof

would become unnecessary under Section 57 of the

Evidence Act. In the said case, the question was about

the validity of adoption of a person who was above the

age of 15 years in Kamma community in Andhra

Pradesh. The Hon’ble Apex Court observing that the

respondent before it had laid the said prevalence of

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 43 :

custom by leading cogent and reliable evidence,

however, the appellant had failed to challenge the said

evidence and also to disprove the adoption. Moreover,

in view of a decision of the Division Bench of Andhra

Pradesh High Court in a case reported in 1964,

recognizing such a custom in Andhra Pradesh as legal

and valid, having remained binding till date, the Court

observed that such a custom gets blended into law and

proof thereof becomes unnecessary under Section 17 of

the Evidence Act.

Another judgment relied upon by the learned

counsel for the appellant in his argument is in the case

of Kondiba Rama Papal alias Shrike (dead) by his

heirs & LRs and another Vs. Narayana Kondiba

Papal reported in AIR 1991 SC 1180. In the said case,

the Hon’ble Apex Court was pleased to refer to the

observation made by the High Court while allowing the

plaintiff’s appeal that, so far as the Bombay State is

concerned, the position is well settled in view of more

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 44 :

than one judicial decision and as pointed out in Mulla’s

Hindu Law, 14th Edition at page 550, that in the

Bombay State a person may be adopted at any age

though he may be older than the adopter and though he

may be married and has children. Further, the Apex

Court was pleased to observe that the plaintiff and the

defendant belong to the area which was part of the old

Bombay State and accordingly, the said custom

prevailed amongst them as regards adoption of a child

at any age.

30. In the instant case also, the parties belong to

the area which was a part of old Bombay State. As

such, adoption of a person at the age of 15 years had

got legal recognition much earlier itself. However, the

learned counsel for respondent No.1 placed before us a

photocopy of a judgment of the learned Single Judge of

this Court in Shivangouda Virupaxi Ganachari @

Patil Vs. Shrimanth Chinnappa Ganachari @ Patil

and Others disposed of on 09.10.2007 (unreported),

RFA No.4174/2012 C/w.

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: 45 :

and drew our attention that the observation of the

Hon’ble Apex Court in Kondiba Rama’s case (supra) was

not followed.

The learned counsel while producing a photocopy

of the order of the Hon’ble Apex Court, dated

12.08.2013, passed in SLP (Civil) No.24807/2008,

which SLP was against Shivangouda Virupaxi Ganachari

@ Patil’s case (supra), also submitted that the said

Special Leave Petition was dismissed. With this, he

submitted that the observation made in Kondiba Rama’s

case that in old Bombay Province, there is a custom of

adopting a boy above the age of 15 years was not

recognized by the Hon’ble Supreme Court subsequently.

31. With great respect to those two judgments, it

is observed that in the case of Shivangouda Virupaxi

Ganachari @ Patil (supra), the Court did not deviate

from the observation made in Kondiba Rama’s case

(supra) by the Hon’ble Supreme Court, it has only

stated that in the case before it, so far as adoption is

RFA No.4174/2012 C/w.

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: 46 :

concerned, both the lower Courts had recorded a

concurrent finding of fact to the effect that there was

neither pleading nor proof to show that there was any

custom or usage in the family of the plaintiff or for that

matter, in the family of the adopted parents, a person

aged more than 15 years has been taken in adoption.

Further, in the said case, it was also observed that the

plaintiff himself had not entered the witness box and

therefore in the face of such situation occurring in the

case on hand, the High Court observed that the lower

Appellate Court had rightly observed at para 13 of its

judgment that it was neither pleaded nor proved that in

the area and community of the people, to which the

plaintiff belongs that there is a custom of adoption of

any age. While concluding it was categorically observed

that in view of there being no pleading nor any proof,

the adoption of the plaintiff could not be held to be

valid.

RFA No.4174/2012 C/w.

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: 47 :

32. Thus, the learned Single Judge did not

change from the observation made in Kondiba Rama’s

case (supra) but only stated that to apply the said

principle in the case on had before him, there was

neither any pleading nor evidence, as such, the

observation made in Kondiba Rama’s case (supra) that

in old Bombay State there is a custom enabling

adoption of a person above 15 years has already got

judicial recognization.

33. Apart from all these aspects, one more point

which definitely requires to be noticed is the defendant

No.1 as DW1 herself in her cross-examination has

admitted a suggestion as true that in their Reddy

community there is a custom of adoption of a person

aged above 18 years. The said admission on the part of

DW1 which is elicited in her cross-examination is


“£ÀªÀÄä gÉrØ À̧ªÀiÁdzÀ°è 18 ªÀAiÀÄ¹ìVAvÀ ªÉÄÃ®àlÖªÀgÀ£ÀÄß

À̧ºÀ zÀvÀÛPÀ vÉUÉzÀÄPÉÆ¼ÀÄîªÀ À̧A¥ÀæzÁAiÀÄ EzÉ CAzÀgÉ ¤d.”

RFA No.4174/2012 C/w.

RFA CROB.109/2013

: 48 :

The admission of DW1 on these lines further go to

establish the prevailing custom among the Hindu Reddy

community on adoption of a person who is major in his

age.

34. Thus, in the instant case, though the

plaintiff Dundappa was at the age of 15 years as on the

date of his adoption in the year 1983, still his

community practicing the adoption of a person above 15

years of age has permitted for such adoption and the

evidence led before the Court below has proved that the

plaintiff Dundappa has been adopted by the propositus

Goudappa duly performing the rituals and ceremonies

prevailing in their community.

Re: Whether Ancestral Property

35. The plaintiff in his plaint has contended that

he is the exclusive owner of the suit schedule ‘A’

properties, which comprise three pieces of land and a

house. No where in his plaint he has stated the mode of

acquisition of those properties. However, by a reading

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: 49 :

of the plaint, it goes to show that he is claiming his

exclusive ownership of those properties in his alleged

capacity as the adoptive son of Goudappa. His evidence

as PW.1 adds nothing more to his pleading except

producing the copies of few revenue records, like,

records of rights, extract of mutation entries, certified

copies of mutation register from Exs.P1 to P14.

However, the only document, which throws some light

on the acquisition of the suit property in the family of

the parties to the suit is the extract of mutation entry

No.9032 dated 10.08.1956, which is at Ex.P10.

Incidentally, the same document has also been relied

upon, produced and got marked as Ex.D3 by defendant

No.1 also. The said document, which both side are

relying upon, go to show that property in R.S.No.1093

and 780, which are the suit schedule properties came to

the share of propositus Goudappa under a family

partition dated 12.07.1956, which came to be entered in

the revenue records on 10.08.1956. Defendant No.1 in

RFA No.4174/2012 C/w.

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: 50 :

her written statement cum counter claim in the Court

below also has not specifically stated as to whether the

suit schedule properties are self acquired properties of

Goudappa or ancestral properties to the parties.

Throughout in her written statement, she has only used

the word “owned” calling that the suit properties were

owned by the propositus Goudappa Giriyappa

Dasappanavar. However, as DW.1, she in her

examination-in-chief has called the suit schedule

properties as ancestral properties. It is because she has

stated in her examination-in-chief as below:

“CzÀPÉÌ ¥ÀæwAiÀiÁV £Á£ÀÄ JzÀÄgÀÄ zÁªÉ (PËAlgï PÉèÃªÀiï)

zÁªÉAiÀÄ£ÀÄß ¸À°è¹, PÀÄlÄA§zÀ zÁªÁ ±ÉqÀÆå¯ï D¹ÛUÀ¼ÀÄ

¦vÁæfðvÀªÁzÀ ¥ÀæAiÀÄÄPÀÛ zÁªÁzÀ AiÀiÁªÀvÀÆÛ ¸ÀzÀj ±ÉqÀÆå¯ï

D¹ÛUÀ½UÉ ¸ÀªÀÄ s̈ÁUÀ ªÀiÁr, CzÀgÀ°è MAzÀÄ s̈ÁUÀªÀ£ÀÄß

ªÁ¢AiÀiÁzÀ £À£Àß ¥ÀævÉåÃPÀ »¸ÁìPÉÌ M¦à¸ÀÄªÀAvÉ WÀ£À

£ÁåAiÀiÁ®AiÀÄªÀÅ rQæ ºÉÆgÀr¸À É̈ÃPÉAzÀÄ ºÁUÀÆ ªÁ¢AiÀÄ

zÁªÉAiÀÄ£ÀÄß ªÀeÁ ªÀiÁqÀÄvÁÛ ¸ÀAzÀ̈ sÉÆÃðavÀªÁV

£ÁåAiÀiÁ®AiÀÄzÀ «ªÉÃZÀ£É C£ÀÄ¸ÁgÀ vÉÆÃjzÀ ¥ÀjºÁgÀ

PÉÆqÀ É̈ÃPÀÄ CAvÁ ¥Áæyð¹, ¥Àæw zÁªÉAiÀÄ£ÀÄß À̧°è¸À̄ ÁVzÉ.”

RFA No.4174/2012 C/w.

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: 51 :

The same witness further in her examination-in-

chief itself at para 5 has stated as below:

“zÁªÁzÀ AiÀiÁªÀvÀÆÛ D¹ÛUÀ¼ÀÄ C« s̈ÀPÀÛ PÀÄlÄA§zÀ ºÁUÀÆ

¦vÁæfðvÀ D¹ÛUÀ¼ÀÄ AiÀiÁªÀÅzÉÃ ±Á¸À£À§zÀÞ ¥Á®Ä-¥ÀnÖ ªÁ¢

ºÁUÀÆ ¥ÀæwªÁ¢AiÀÄgÀ ªÀÄzsÀå dgÀÄUÀÄªÀÅ¢®è”

Through the above statement DW.1 on her own,

categorically stated that the suit schedule properties are

ancestral properties and that no partition has taken

place between the parties to the suit with respect to

those properties. Form these points, it is clear that the

suit schedule properties are ancestral properties.

36. Learned counsel for the respondent, however

in his argument relied upon three decisions of Hon’ble

Supreme Court and submitted that the suit properties

are self acquired properties of propositus Goudappa.

The first case relied upon by the learned counsel

in this regard is of Mallika Vs. Chandrappa reported

in (2007) 5 AIR Kant R 283. In the said case with

respect to succession under Hindu Law, the Hon’ble

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Apex Court was pleased to observe that the property of

the father, who had separated from his family were

inherited and held by his sons after the death of their

father and in their individual capacity son’s sons/son

will have no right as coparceners. The said judgment

was delivered referring to and following its own previous

judgment in Commissioner Of Wealth-tax, Khanpur

Vs. Chander Sen reported in AIR 1986 SC 1753. In

the said case, after noticing the partition of the joint

family business between the father and his only son,

and son forming joint family with his own sons, the

Hon’ble Apex Court was pleased to observe that, after

the death of father, amount standing to the credit of

deceased father in account of the Firm devolves on son

as his individual income and such income cannot be

included in computing net wealth of son’s joint family.

The third decision relied upon by the learned

counsel for the respondent is of Uttam Vs. Saubhag

Singh and Others reported in (2016) 4 SCC 68,

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wherein the Hon’ble Apex Court with respect to Section

6 of the Hindu Succession Act, 1956, was pleased to

observe that, after devolution of joint family property as

per Section 8 of Hindu Succession Act, upon death of

male Hindu intestate property would cease to be joint

family property and said female heir and other

coparcener succeeding to the same would hold their

respective share in property as tenants-in-common and

not as joint tenants. Therefore, grandson born after the

death of male Hindu cannot maintain suit for partition

claiming his share by division of alleged joint family

property.

37. With great respect to the above three

judgments, it is seen that the dispute in the suit under

consideration is mainly among the children of

propositus Goudappa. Further, the interest of any of

the grandson, who is said to have born after the death

of a male Hindu or the dispute regarding the wealth tax

are not the elements in the case on hand.

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38. On the other hand, as observed above, the

evidence of PW1 and DW1 and the recognition of

partition through mutation as per Ex.P10 and Ex.D3

clearly go to establish that the suit properties are

ancestral properties and in spite of the alleged entries in

the revenue records, like the records of rights and the

house tax extract, which the parties have relied upon,

the suit properties have not lost its character as

ancestral property. Since, the alleged oral agreement

between the plaintiff and the defendant No.1 as

canvassed by the plaintiff in the Court below has not

been established convincingly and the said point has

not been pressed by either of the parties in this appeal,

without much discussion on those aspects, it can be

observed that the suit schedule properties under the

dispute are the ancestral properties of the deceased

Goudappa.

39. Consequently, the finding of the Court below

on additional issue No.1, wherein it has held that

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defendant No.1 before it was entitled for ½ share, proves

to be erroneous. Further, since the Court below even

after noticing that mere entries in revenue record would

not prove the title to the property still was carried away

by those revenue entries itself, which led it to come to

an erroneous conclusion to hold that defendant No.1

before it was entitled for ½ share in the property.

40. The above discussion shows that plaintiff,

defendant No.1 and Smt.Kamalavva-the mother of

defendant No.2 are the children of propositus Goudapa.

Among those three children the plaintiff was the

adopted son of propositus. The suit schedule ‘A’

properties being the ancestral properties inheritance to

those property would be as per Hindu Succession Act,

1956, since the parties are Hindu by religion.

41. According to the learned counsel for the

plaintiff/appellant, propositus Goudappa died on

22.07.1997 and his both the daughters, Smt.Kamalavva

and defendant No.1 i.e. Smt.Sundarawwa were born

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prior to 1956. As such, in the suit schedule ‘A’

properties, which are ancestral properties, Goudappa

and the plaintiff Dundappa, who is the adopted son of

propositus Goudappa will have ½ share each. After the

death of said Goudappa and his wife Smt.Yamunavva,

the undivided ½ share would devolve upon the plaintiff

and both the defendants equally. In his support, he

relied upon judgments reported in ILR 2010 KAR 1484

and 2015 AIR SCW 6160.

42. On the other hand, learned counsel for

defendant No.1/Cross-objector, in his argument

submitted that the devolution of property would not be

as per survivorship and it is according to intestate

succession under Section 8 of the Hindu Succession

Act, 1956. As such, both the parties to the litigation

being Class-I heirs, the property would devolve upon

them in the equal proportion at 1/3rd each.

43. It is not in dispute that, apart from the

parties to the litigation being Hindus, propositus

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Goudappa died intestate. As already observed in the

previous paragraphs, the suit schedule ‘A’ properties are

ancestral properties. As such, it is Section 6 of Hindu

Succession Act, 1956, which is applicable regarding

devolution of interest in the coparcenary property. The

said Section, prior to its amendment in the year 2005

and after its amendment under Hindu Succession

(Amendment) Act, 2005 with effect from the date

09.09.2005, reads as below:

Section 6 of the Hindu Succession Act

Section 6 on and from the commencement of the Hindu Succession (Amendment) Act, 2005

6. Devolution of interest of

coparcenary property.

When a male Hindu dies after

the commencement of this Act,

having at the time of his death

an interest in a Mitakshara

coparcenary property, his

interest in the property shall

devolve by survivorship upon

the surviving members of the

coparcenary and not in

accordance with this Act:

PROVIDED that, if the

deceased had left him

6. Devolution of interest in

coparcenary property.-

(1) On and from the

commencement of the Hindu

Succession (Amendment) Act,

2005, in a Joint Hindu family

governed by the Mitakshara

law, the daughter of a

coparcener shall,-

(a) by birth become a

coparcener in her own right in

the same manner as the son;

(b) have the same rights in the

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surviving a female relative

specified in class I of the

Schedule or a male relative

specified in that class who

claims through such female

relative, the interest of the

deceased in the Mitakshara

coparcenary property shall

devolve by testamentary or

intestate succession, as the

case may be, under this Act

and not by survivorship.

Explanation I: For the

purposes of this section, the

interest of a Hindu Mitakshara

coparcener shall be deemed to

be the share in the property

that would have been allotted

to him if a partition of the

property had taken place

immediately before his death,

irrespective of whether he was

entitled to claim partition or

not.

Explanation 2: Nothing

contained in the proviso to this

section shall be construed as

enabling a person who has

separated himself from the

coparcenary before the death

of the deceased or any of his

heirs to claim on intestacy a

share in the interest referred

to therein.

coparcenary property as she

would have had if she had

been a son;

(c) be subject to the same

liabilities in respect of the said

coparcenary property as that

of a son, and any reference to

a Hindu Mitakshara

coparcener shall be deemed to

include a reference to a

daughter of a coparcener:

Provided that nothing

contained in this sub-section

shall affect or invalidate any

disposition or alienation

including any partition or

testamentary disposition of

property which had taken

place before the 20th day of

December, 2004.

(2) Any property to which a

female Hindu becomes entitled

by virtue of sub-section - (1)

shall be held by her with the

incidents of coparcenary

ownership and shall be

regarded, notwithstanding

anything contained in this Act,

or any other law for the time

being in force, as property

capable of being disposed of by

her by testamentary

disposition.

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(3) Where a Hindu dies after

the commencement of the

Hindu Succession

(Amendment) Act, 2005, his

interest in the property of a

Joint Hindu family governed

by the Mitakshara law, shall

devolve by testamentary or

intestate succession, as the

case may be, under this Act

and not by survivorship, and

the coparcenary property shall

be deemed to have been

divided as if a partition had

taken place and,

(a) the daughter is allotted the

same share as is allotted to a

son;

(b) the share of the pre-

deceased son or a pre-

deceased daughter, as they

would have got had they been

alive at the time of partition,

shall be allotted to the

surviving child of such

predeceased son or of such

pre-deceased daughter; and

(c) the share of the pre-

deceased child of a pre-

deceased son or of a pre-

deceased daughter, as such

child would have got had he or

she been alive at the time of

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the partition, shall be allotted

to the child of such pre-

deceased child of the pre-

deceased son or a pre-

deceased daughter, as the

case may be.

Explanation.- For the

purposes of this sub-section,

the interest of a Hindu

Mitakshara coparcener shall

be deemed to be the share in

the property that would have

been allotted to him if a

partition of the property had

taken place immediately before

his death, irrespective of

whether he was entitled to

claim partition or not.

(4) After the commencement of

the Hindu Succession

(Amendment) Act, 2005, no

court shall recognise any right

to proceed against a son,

grandson or great-grandson

for the recovery of any debt

due from his father,

grandfather or great-

grandfather solely on the

ground of the pious obligation

under the Hindu law, of such

son, grandson or great-

grandson to discharge any

such debt:

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Provided that in the case of

any debt contracted before the



2005, nothing contained in

this sub-section shall affect-

(a) the right of any creditor to

proceed against the son,

grandson or great-grandson,

as the case may be; or

(b) any alienation made in

respect of or in satisfaction of,

any such debt, and any such

right or alienation shall be

enforceable under the rule of

pious obligation in the same

manner and to the same

extent as it would have been

enforceable as if the Hindu


2005 had not been enacted.

Explanation.-For the purposes

of clause (a), the expression

“son”, "grandson" or “great-

grandson” shall be deemed to

refer to the son, grandson or

great-grandson, as the case

may be, who was born or

adopted prior to the



2005.

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(5) Nothing contained in this

section shall apply to a

partition, which has been

effected before the 20th day of

December, 2004.

Explanation.- For the

purposes of this section

"partition" means any partition

made by execution of a deed of

partition duly registered under

the Registration Act, 1908 (16

of 1908) or partition effected

by a decree of a court.'

Analyzing the above provisions of law prior to

amendment and subsequent to its amendment in the

year 2005, a coordinate Bench of this Court in

Pushpalatha N.V. Vs. Padma and Others reported in

ILR 2010 KAR 1484 was pleased to observe that, on a

proper interpretation of Section 6 after its amendment,

it follows that, when the status of a coparcener is

conferred on the daughter on and from the date of

commencement of Amendment Act. As the right is

given to her by birth, she must have been born after

17.06.1956, the day on which the Act came into force.

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Thus, according to the said judgment the daughter

of a coparcener, who is born after the Act came into

force alone will be entitled to a right in the coparcenary

property and not a daughter, who was born prior to

17.06.1956.

44. However, in a subsequent case, the Hon’ble

Supreme Court in Prakash and Others Vs. Phulavati

and Others reported in 2015 AIR SCW 6160 : 2015(6)

Kar.L.J. 177 (SC), though observed that the

amendment under Hindu Succession (Amendment) Act,

2005 is prospective, but the rights under the

amendment are applicable to living daughters of living

coparceners as on 9th September 2005 irrespective of

when such daughters are born, before disposition or

alienation including partitions, which may have taken

place before 20th December 2004 as per law applicable

prior to the said date will remain unaffected.

Thus, the said interpretation of Hon’ble Apex

Court shows that, for the application of the amended

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Section 6 of the said Act, both the coparcener and the

daughters must be living as on 9th September 2005.

45. However, the Hon’ble Supreme Court,

subsequently in the year 2016 in the case of Uttam Vs.

Saubhag Singh and Others reported in (2016) 4 SCC

68 in paragraph 18 of its judgment, was pleased to

summarize the law relating to devolution of interest in

coparcenary property governed by Mitakshara School

prior to the amendment Act, 2005 as below:

“The law, therefore, insofar as it applies to joint family

property governed by the Mitakshara School, prior to

the amendment of 2005, could therefore be

summarized as follows:-

(i) When a male Hindu dies after the commencement of

the Hindu Succession Act, 1956, having at the time of

his death an interest in Mitakshara coparcenary

property, his interest in the property will devolve by

survivorship upon the surviving members of the

coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in

Section 30 Explanation of the Act, making it clear that

notwithstanding anything contained in the Act, the

interest of a male Hindu in Mitakshara coparcenary

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property is property that can be disposed of by him by

will or other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is

contained in the proviso to Section 6, which states that

if such a male Hindu had died leaving behind a female

relative specified in Class I of the Schedule or a male

relative specified in that Class who claims through

such female relative surviving him, then the interest of

the deceased in the coparcenary property would

devolve by testamentary or intestate succession, and

not by survivorship.

(iv) In order to determine the share of the Hindu male

coparcener who is governed by Section 6 proviso, a

partition is effected by operation of law immediately

before his death. In this partition, all the coparceners

and the male Hindu’s widow get a share in the joint

family property.

(v) On the application of Section 8 of the Act, either by

reason of the death of a male Hindu leaving self-

acquired property or by the application of Section

6 proviso, such property would devolve only by

intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the

Act, after joint family property has been distributed in

accordance with section 8 on principles of intestacy,

the joint family property ceases to be joint family

property in the hands of the various persons who have

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succeeded to it as they hold the property as tenants in

common and not as joint tenants.”

46. Facts similar to the case on hand was also

the fact in the case before the Hon’ble Apex Court in

Anar Devi and Ors. Vs. Parmeshwari Devi and Ors.

Reported in AIR 2006 SC 3332. In that case also, the

question involved was regarding devolution of interest in

the coparcenary property, which property was an

ancestral property. The deceased and his son were

constituting coparcenary. The deceased also had two

daughters, thus three children at the time of his death.

The case was decided by the Hon’ble Apex Court on

18.09.2006 i.e., a year after Hindu Succession

(Amendment) Act, 2005 came into force. The Hon’ble

Apex Court was pleased to hold in that case, that, the

deceased and his son were constituting coparcenary, as

such, notional partition has to be assumed between

them before death of deceased original owner. Half

interest of the deceased would devolve on his death

upon three children i.e., son and two daughters.

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Daughters would have thus 1/6th share each and not

1/3rd share.

47. In the instant case, undisputedly as on

09.09.2005, propositus Goudappa was not alive. It is

not in dispute that he died on the date 22.07.1997.

Further, both his daughters Kamalawwa and

Sundarawwa were also born prior to 1956. As such,

notionally the coparcenary property will stand divided

between the propositus Goudappa and his adopted son

Dundappa/plaintiff in equal share. That share, which

has gone to the part of deceased Goudappa would be his

interest in the coparcenary property, which after his

death will devolve upon Class-I heirs under Section 8 of

the Hindu Succession Act, 1956. According to which,

his wife Yamanawwa and adopted son

Dundappa/plaintiff and two daughters Kamalawwa and

Sundarawwa (defendant No.1) would get 1/4th of half

share, which is the interest of Goudappa in the

coparcenary property. Admittedly, wife of Goudappa

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i.e., Smt. Yamanawwa died on 01.11.2001. As such,

her 1/4th share would be further divided equally

between three children i.e., the plaintiff, Kamalawwa

and defendant No.1. Thus, 1/3rd of 1/4th share of

Yamanawwa in the half undivided share of deceased

Goudappa would be 1/6th. Thus, in total, plaintiff

Dundappa gets 1/2+1/8+1/24 = (12+3+1)/24 = 16/24

= 2/3, which is equivalent to 4/6. Defendant No.2

Doddappa, who is the successor to deceased

Kamalawwa and defendant No.1 Sundarawwa each

would get 1/8+1/24 = (3+1)/24 = 4/24 = 1/6. The total

of all the three shares would be 4/6+1/6+1/6 = 6/6 = 1

unit, which is suit schedule ‘A’ property.

48. The Court below, even after observing that

suit schedule ‘A’ property being coparcenary property

was amenable to partition, has still committed an error

in applying the correct principle of devolution of interest

in the said coparcenary property, among the parties

before it, which has resulted in passing an erroneous

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judgment decreeing the counter claim of the defendant

No.1 before it and to hold that she was entitled to half

share in the suit schedule property. Thus, the

impugned judgment and decree deserves an interference

at the hands of this Court and deserves modification in

the form of alternation in the allocation of shares

between the parties to the suit and dismissal of counter

claim of defendant No.1 as well the cross-objection of

the said defendant before this Court.

49. Accordingly, we proceed to pass the following

order:

ORDER

RFA No.4174/2012 is allowed in part.

The judgment and decree dated 21.11.2012

passed by the Principal Senior Civil Judge, Bagalkote, in

O.S.No.57/2010 is modified and it is hereby ordered

and decreed that the plaintiff in the original suit is

entitled for 4/6th share in the suit schedule ‘A’

properties and defendants No.1 and 2 in that suit are

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entitled for 1/6th share each in suit schedule ‘A’

properties.

RFA Crob.No.109/2013 before this Court as well

the counter claim of defendant No.1 in the Court below

are dismissed.

The remaining part of the decree under appeal

remains unaltered.

Draw modified preliminary decree accordingly.

Sd/- JUDGE

Sd/-

JUDGE MBS/gab

: 1 -...

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