Kumaraswamy vs Smt. Gangu Bai

M. Jagannadha Rao, J.—The plaintiff is the appellant. The suit is filed by the appellant for a declaration that he is the owner and possessor of the suit schedule properties and for perpetual injunction restraining the defendant, Smt. Gangubai from interfering with his possession over the suit properties. The suit was filed in 1977. The trial Court by judgment dated 22-12-1981 dismissed the suit holding that the adoption of the plaintiff by late Sayakka has not been properly proved inasmuch as there is no proof of authority granted to Sayakka by her husband. The Court also held that the defendant-respondent is in possession of the suit lands along with Sayakka and that the plaintiff is not entitled to an injunction. On these findings the suit was dismissed. The learned single Judge by his judgment dated 13-9-1988 has affirmed these findings and dismissed the appeal. It is against this judgment that the present Letters Patent Appeal is preferred by the plaintiff.

The following facts need be stated : Late Adellu was the husband of Sayakka. As Sayakka did not bear any children late Adellu married Sayakka''s sister and the defendant Gangu Bai was born to that lady. In 1921 when the daughter Gangu Bai was 12 years, late Adellu executed a registered gift deed in her favour which has been marked as Ex. B-3. The exact date of the gift deed is 6-5-1331 F. Adellu died some time in 1935. In fact the second wife of Adellu pre-deceased him. After Adellu''s death his first wife Sayakka and his second wife''s daughter Gangu Bai were living together in the village house. The plaintiff was adopted by Sayakka on 8th Dai 1355 Farwardi and a registered adoption deed was executed by Sayakka in favour of the plaintiff (Ex. A-1) on 27th Farwardi 1356 F. Sayakka died some time in 1967. The plaintiff''s case is that he performed her funeral ceremonies in 1967 and that the properties were mutated in his name and patta was also transferred likewise. The two suit houses at Kuntala village are also said to have been mutated in the name of the plaintiff in the gram panchayat records. It is his case that he has been paying the cist and taxes for over 10 years. He alleged that the gift deed, Ex. B-3 had never been acted upon. He therefore filed the present suit on the basis of his tide as an adopted son of late Adelllu.

In the written statement filed by the respondent, it is stated that she is not aware of the adoption nor of the adoption deed, Ex. A-1. It is also stated that Sayakka was not given any authority by her husband to take any boy in adoption. It is stated that late Adellu executed the registered gift deed, Ex. B-3 gifting the properties in favour of the defendant. That document Ex. B-3 was executed when the defendant was 12 years old. Ex. B-3 has always been acted upon. In fact the defendant was looking after Sayakka as she had become blind 9 years before her death. It was defendant who performed her funeral ceremonies. The plaintiff is an employee of the Forest Department and he influenced the Patwari and got his name mutated in the revenue records and the gram panchayat records without the knowledge of the defendant. In fact the defendant was paying the land revenue to the Patwari and she has been in possession and enjoyment of the properties. The suit is therefore liable to be dismissed.

The main points before us are :

(1) Whether the adoption set up by the plaintiff is true and valid?

(2) Whether the gift deed, Ex. B-3 of the year 1921 has not been acted upon?

(3) Whether the plaintiff has been in exclusive possession of the suit properties?

Point No. 1 :-So far as the adoption is concerned we have the registered adoption deed, Ex. A-1, of the year 1946. The said document also contains the attestation of the defendant. There is also some oral evidence let in by the plaintiff in regard to the adoption and in regard to the the authority given to Sayakka by her husband. Above all we have the fact that there is a recital in Ex. A-1 deed itself that Sayakka was taking the plaintiff in adoption on the basis of the authority granted to her by her husband.

The trial Court as well as the learned single Judge mainly held that there is no proof of the authority said to have been granted to late Sayakka by her husband. So far as the actual giving and taking and other ceremonies are concerned there has not been much of a dispute. The question therefore is whether on the basis of the material before the Court it can be said that the husband of Sayakka had given her the authority to adopt or not.

In our view, the trial Court as well as the learned single Judge did not approach this question from the proper perspective. The adoption is of the year 1945 and the adoption deed is of the year 1946 and most of the witnesses in connection thereto are no more except P. Ws. 2 and 4. The suit was filed in 1977 by the plaintiff and the evidence was recorded much later. In our view in such cases it becomes necessary to apply certain special principles of proof applicable to old or ancient adoptions. Such principles have been laid down by the Privy Council in Kanchumarthi Venkata Seetharamachandra Rao v. Kanchumarthi Raju, (1927) 53 MLJ 858. Those principles have been applied and followed by the Supreme Court in Eramma and Others Vs. Muddappa, and Voleti Venkatarama Rao Vs. Kesapragada Bhaskara Rao and Others, . In the first of these cases the Judicial Committee observed that after such a long term of years and the variety of transations of open life and conduct, upon one footing and one footing alone-viz., that the adoption was recognised as a valid act, the burden resting upon any litigant who challenges the authority of an admitted adoption, is indeed of the heaviest order. In the case of ancient adoptions, in the absence of express prohibition in writing by the husband, his widow, or where he left more widows the senior-most widow, shall be presumed to have his authority to make an adoption. The fact that no mention of authority was made in the adoption deed would not go to rebut the presumption. In the present case far from there being no recital as to authority, we have a clear recital of the authority of the husband in the adoption deed. We, therefore, hold that on the pecular facts of the case the Courts below ought to have presumed the authority of the husband of Sayakka in regard to the adoption. Merely because P. Ws. 2 and 4 are not able to speak to the said authority, it does not follow that there is no authority granted for the adoption. For the aforesaid reasons, we disagree with the findings given by the trial Court as well as the appellate Court in so far as the validity of the adoption is concerned. We hold that there is valid authority for the adoption of the plaintiff by late Sayakka and that the plaintiff is the adopted son of late Adellu. We hold on point No. 1 in favour of the appellant.

Point Nos. 2 and 3 :-Our finding on point No. 1 in favour of the appellant does not mean that the appellant is to succeed in getting the relief sought for in the suit. If by the date of adoption the entire property of late Adellu which is inclusive of the suit property had been gifted away by late Adellu in favour of the defendant-respondent in 1921 itself under the registered deed, Ex. B-3, the adopted son cannot divest the defendant in respect of the property so gifted. It will be noticed that at the time of Ex. B-3 the defendant was 12 years old and she had lost her mother. At that time she was the object of his affection and he obviously intended that the gift must be a real document. It is not the plaintiff''s case that the gift deed was sought to be executed by late Adellu for some ulterior purpose such as screening the property from any creditors. Therefore there was indeed no reason to attribute to late Adellu an intention that the gift deed was to be treated as nominal. So far as the donee is concerned she was a minor and at that time she was living along with her step-mother Sayakka. In fact the defendant and Sayakka have been living together ever since the death of Adellu in 1935 till the death of Sayakka in 1967. Even the witnesses examined on behalf of the appellant speak to the fact that Sayakka and the defendant were living together. It is not the case of the appellant even in his plaint that the defendant was excluded from the enjoyment of the income from the lands or was excluded from the house and that Sayakka was alone enjoying the properties in her own right. Both the trial Court as well as the learned single Judge have considered the evidence in this behalf and come to the conclusion that the defendant was living with Sayakka after the death of her father during Sayakka''s life time and that even thereafter i.e., after 1967, the defendant has been residing in the suit house at Kuntala village. P.W. 1 himself admitted that by the time of the death of Sayakka the defendant was residing with her and that after the death of Sayakka, the defendant was living in the same house. P.W. 3 the Mali Patel has stated that after the death of Adellu the defendant was residing with Sayakka and that the defendant and Sayakka were enjoying the produce from the suit lands. P.W. 4 deposed to at the defendant was attending to the cultivation during the life time of Sayakka and that even after Sayakka''s death the defendant was attending to the cultivation by supervision. The above evidence is of the witnesses of the plaintiff himself. Therefore it must be held that the trial Court as well as the learned single Judge were right in their conclusion that Ex. B-3 has been acted upon. It is no doubt true that after the death of Sayakka, the plaintiff managed to have his name mutated in the revenue records so far as the lands are concerned and in the panchayat records so far as the house property is concerned. But the plaintiff has not been able to produce the relevant revenue receipts and the tax receipts for the period from 1947 till 1977 the date of suit except in regard to one year. The appellant admitted in cross-examination that he has not filed the land revenue receipts in the suit and that he has not produced the previous house tax receipts in relation to the suit house. In fact it has been suggested to the plaintiff in his evidence that the tax receipts were in the custody of the defendant and that they show payment by the defendant but they have been knocked away by the plaintiff some time before the suit. While the plaintiff is educated and is an employee in the Forest Department the defendant is an old lady who is illiterate. In our view the trial Court as well as the learned single Judge were right in not attaching much weight to the mutation of the properties in the name of the plaintiff. The plaintiff was the male member of the family and the ladies had imposed trust in him. As stated by the defendant in her evidence as D.W. 1 the plaintiff had abused the said trust. We, therefore, agree with the trial Court and the learned single Judge that Ex. B-3 was acted upon from 1921 and that the defendant had become the owner of the suit properties long before the adoption of the plaintiff in 1945. The plaintiff cannot therefore seek to divest the defendant of these suit properties even if his adoption is true and valid.

So far as possession of the property is concerned, we are again of the view that the Courts below were right in coming to the conclusion that the defendant continued to be in physical possession of the property. Neither Sayakka nor the plaintiff have ever been in exclusive possession of the properties. The plaintiff not being in exclusive possession and in any event not having title to the suit properties was not entitled to any permanent injunction. The Courts below were therefore right in not granting any permanent injunction. We hold accordingly on point Nos. 2 and 3, in favour of the respondent-defendant and against the plaintiff.

In view of our findings on point Nos. 2 and 3 the plaintiff cannot be declared as the owner and possessor of the suit properties. The Letters Patent Appeal therefore fails and is dismissed. There shall, however, be no order as to costs.