Kundrapu Narasimha Naidu and Others vs Kundrapu Kondadu and Others

M.N. Rao, J.

This Letters Patent Appeal arises from the judgment of a learned Single Judge of this Court in A.S. No, 193 of 1978 dismissing the appeal preferred by the appellants who are defendants 4 and 9 to 24 in the suit. The first respondent is the plaintiff in the suit-O.S. No. 201/71 on the file of the Principal Subordinate Judge, Visakhapatnam. For the sake of convenience, the parties in this Letters Patent Appeal are referred to as they are arrayed in the suit.

The suit O.S. No. 201/71 was instituted in the Court of the Subordinate Judge, Visakhapatnam for partition of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff. In the first instance, there were only four defendants in the suit. The first defendant was the adoptive father of the plaintiff. Defendants 2 and 3 are alienees from the first defendant with regard to certain plaint schedule properties. The 4th defendant claimed to be the adopted son of the first defendant. After the suit was instituted, the first defendant died and his wife was brought on record as 5th defendant. After the death of the 2nd defendant, defendants 6 to 8 were brought on record as his legal representatives . Subsequently, defendants 9 to 24 who are tenants of the plaint sched ule property, got themselves impleaded. The case of the plaintiff was that when he was aged three years, defendants 1 and 5 adopted him and since his infant-hood, he has been staying with them, his marriage was got celeb rated by them and he was looking after the agricultural operations of the lands owned by the first defendant. Because of some misunderstandings between him and his adoptive father-the 1st defendant that cropped up in 1969, the latter started telling that the 4th defendant was adopted by him. He, therefore, instituted the suit for partition and separate possession. The first defendant died soon after the suit was instituted and after the 5th defendant was brought on record as his legal representatives, she filed a written statement supporting the case of the plaintiff. The alleged adopted son-4th defendant filed a written statement asserting that the first defendant adopted him in the year 1970 under a deed of adoption; Ex. Bl was the deed of adoption. On the basis of the pleadings, the Trial Court framed in all, six issues including two additional issues and after considering the entire evidence brought on record, both oral and documentary 9 witnesses on behalf of the plaintiff and 14 witnesses on behalf of the defendants and 10 documents on behalf of the plaintiff and 31 documents on behalf of the defendants decreed the suit as prayed for. It was held by the Trial Court that the adoption of the plaintiff by the 1st defendant was true and valid and that the plea of the 4th defendant that he was adopted by the first defendant was a concocted story putforward for the purpose of defeating the rights of the plaintiff. Ex. A-4 dated 10-3-1969 agreement of sale executed jointly by the plaintiff and the first defendant in which they were described as father and son, Ex. A5-Voters'' List of the year 1958, Ex. A-6 Voters'' List of the year 1970 showing the plaintiff as the son of the first defendant, Ex. A-7 notice issued to the plaintiff and the defendants by the Central Excise Officials in connection with levy of tax on tobacco produced by them and Ex. A8 certified copy of judgment in a criminal case in the year 1957 in which the plaintiff and the first defendant gave evidence, are some of the documents relied upon by the Learned Trial Judge for the purpose of accepting the plea of the plaintiff that he was adopted by the first defendant. The oral evidence in support of the plaintiff''s case, besides his evidence as P.W. 8, consisted of the evidence of his adoptive mother, the 5th defendant who figured as P.W. 1, P.Ws. 2 and 3 who claimed to have witnessed the adoption of the plaintiff, P.Ws 4 and 5 purchasers of certain lands from the first defendant. P.W. 6 Sarpanch of the village and P.W. 7 Village Karanam.

On appeal, a learned Single Judge of this Court while affirming the view taken by the Trial Court as regards the genuineness of the plea of the plaintiff on the question of adoption, clarified the preliminary decree granted by the Trial Court by observing that it should be construed only as confirming symbolic possession to the plaintiff in respect of the half share of the plaint schedule properties since the lands are under the possession of the tenants-defendants 9 to 24 who cannot be evicted from the plaint schedule lands since their rights are protected by the provisions of Tenancy Act. The learned Single Judge also held that the 5th defendant had not given her consent to the alleged adoption of the 4th defendant and as obtaining consent which is a mandatory requirement u/s 7 of the Hindu Adoptions and Maintenance Act, 1956 was not complied with, the alleged adoption is invalid. While stating so, the learned Single Judge made a casual observation that "the adoption thereby is invalid though factually it has taken place."

Sri Veerabhadraya, Learned Counsel for the appellants has contended before us that there is no acceptable evidence from the side of the plaintiff to support his plea or adoption, although the adoptive mother the 5th defendant in her evidence has asserted that the deed of adoption was prepared and registered, the same was not produced. As the best available evidence was not produced, relying on Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, the Learned Counsel says that adverse inference should be drawn. He also contends that the statutory presumption incorporated in Section 16 of the Hindu Adoptions and Maintenance Act, 1959, hereinafter referred to as the ''Act'' that when a registered deed of adoption is produced, it shall be presumed by the Court that the adoption has been made in compliance with the provisions of the Act has been overlooked both by the Trial Court and the learned Single Judge.

Section 16 of the Act is in the following terms.

"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 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."

Ex. B-l is undoubtedly a registered document showing that the 4th defendant was adopted by the first defendant. It is recited in Ex. B-I that the adoption was made by the 1st defendant with the consent of his wife 5th defendant. The statutory presumption that the adoption has been made in compliance with the provisions of the Act comes into play; but it is a rebuttable presumption. The expression "disproved" is denned by the Indian Evidence Act in the following terms :

"Disproved"-A. fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist".

Section 11(i) of the Hindu Adoptions and Maintenance Act injuncts that at the time of adoption, the adoptive parents shall not have a son living (whether by legitimate blood relationship or by adoption). The case of the plaintiff is that he was the adopted son of, the 1st defendant. If there is acceptable evidence as regards the adoption of the plaintiff, the claim of the fourth defendant that he is the adopted son, must fail. Stated differently the proof regarding plaintiff''s adoption disproves the presumption incorporated in Section 16 of the ''Act'' as regards the evidentiary value of Ex. B-l. We have to therefore, examine the evidence having bearing on the aspect of the plaintiff''s adoption. The plaintiff''s claim was that he was adopted at the age of three. The adoptive mother figured as P.W. 1. Her evidence was record by an Advocate-Commissioner on 17-2-1974, as she was not in a fit condition to attend the Court. Her evidence is to the effect that when the plaintiff was three years old, she and her husband had adopted the plaintiff who is her sister''s son a Purohit came and performed the rites before the sacred fire and that the adoption ceremony had taken place. She denied that she and her husband had adopted the 4th defendant. She asserted that she did not agree for any such move. P.Ws. 2 and 3 stated that they were present at the time of the adoption. In the cross-examination, she stated that at the time of the adoption, documents were written on which she and her husband appended their signatures.

The most serious objection taken by the Learned Counsel for the appellants is that the documents which constitute the best evidence as to the claim of adoption have not been produced and therefore, adverse inference must be drawn. We do not agree in the particular circumstances of this case. P.W. 1 is an illiterate woman. She had no idea as to what is meant by ''adoption documents''. The adoption was in the year 1935 when the practice of obtaining a deed of adoption was not in vogue. We therefore, bold that there was no deed evidencing the plaintiff''s adoption and so, the question of drawing any adverse inference for non-production of the alleged adoption deed, would not arise. The plaintiff figuring as P.W. 8 has categorically stated about his adoption which had taken place about 40 years before he gave evidence in the Court. His version is that he was adopted when he was an infant of three years and since then, he stayed with the 1st defendant and 5th defendant, the adoptive parents, looking after the family cultivation. There is clear documentary evidence to show that the first defendant althrough had treated the plaintiff as his adopted son. Ex. A-4 is an agreement dated 10-3-1969 executed by the plaintiff and his adoptive father the first defendant jointly, agreeing to sell an extent of 341/2 cents of land in favour of P.W. 4 for a consideration of Rs. 1020/-, Rs. 600/-was taken by way of advance, but as the document was not executed, a suit O.S. No. 199 of 1969 was instituted by P.W. 4 and the same was decreed for specific performance. Ex.A-l is the certified copy of the Judgment. The recitals in Ex. A-4 leaves no doubt as to the relationship between the plaintiff and the first defendant; the plaintiff was described as the son of the first defendant. P.W. 5 purchased an extent of 13 cents of land under two sale deeds-Exs. A-2 and A-3, executed by the plaintiff and the first defendant The reason why two sale deeds had to be executed, was clearly stated by P.W. 5 in his evidence. The plaintiff objected to the sale of the land of 13 cents by the first defendant. Since Ex. A-2 was executed only by the - first defendant in respect of the very same land. another sale deed Ex. A-3 was obtained by him from the plaintiff. Ex. A-7 is a notice issued by the Excise Officials in which the plaintiff and the first defendant were described as father and son. Ex. B-4 is the deposition of the first defendant in C.C. No. 66/71 on the file of the Additional Munsif Magistrate, Yelamanchili. While deposing as P.W. 4 in that case, he admitted the truth of the recital in Ex. A-4 as to the relationship between him and the plaintiff. The evidence brought on record, therefore, shows that until the disputes arose in the year 1969, the 1st defendant never disowned the plaintiff. Subsequent to the disputes, the first defendant entertained the idea of alienating the properties in order to deprive the plaintiff on any share in the family properties. By that time, he was addicted to liquor and this is spoken to by none-else than P.W. 1. his own wife. The evidence also shows that P.W. 1 was not living with the alleged adopted son the 4th defendant. She has been living only with the plaintiff in the family house in the village. When there is ample proof as to the adoption of the plaintiff and as the statutory presumption incorporated in Section 16 of the ''Act'' is fully rebutted, there is no warrant for drawing the inference that the factum of adoption recited in Ex. B-l had taken place in accordance with the provisions of the ''Act''.

During the pendency of the Letters Patent Appeal, the 5th defendant, the adoptive mother of the plaintiff died. There is no other legal heir to her except the plaintiff. C.M.P. No. 19080/92 was filed on behalf of the plaintiff in this Court for permission to amend the prayer for possession of the entire plaint schedule properties, instead of half share. After the death of the first defendant, his share of the properties devolved on the 5th defendant and the plaintiff. Subsequent to the death of the 5th defendant, the plaintiff succeeded to her properties. He is therefore, entitled to the entire plaint schedule properties. It is stated that the 5th defendant also had left behind him a Will bequeathing the properties to the plaintiff. Even without any such testamentary disposition, as the plaintiff is entitled to succeed to her properties, C.M.P. 19080/92 is allowed.

C.M.P. No. 15440/91 was filed for amendment of the plaint so as to include the claim for future profits. In view of the clarification given by the learned Single Judge that under the decree granted by the Court below, the plaintiff is not entitled to evict the tenants defendants 9 to 24, there is no possibility for any enquiry into the mesne profits; such a situation will not arise. The leases are evidenced by lease deeds. Whatever be the terms incorporated in the lease deeds must be given effect to and accordingly, the tenants who are the appellants before us are bound to make payments to the plaintiff. C.M.P. 15440/91 is accordingly ordered entitling the plaintiff to claim the lease amounts from defendants 9 to 24 by way of profits.

For the above reasons, affirming the view taken by the learned Single Judge, we dismiss the L.P.A. with the modifications as indicated above and consequently the decree granted by the Trial Court shall stand varied. No costs.