T. Srinivas, S. Venkatesh and S. Gnana Murthy vs S. Rajashekar

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned counsel for the respondent. The appellants were the defendants in the trial court.

The parties are referred to by their rank before the trial court for the sake of convenience.

The plaintiff was the son of the first defendant and the brother of the second and third defendants. It was his case that his father, along with his uncles, constituted a Hindu Undivided family and the suit schedule property was an item belonging to the Hindu Undivided family. There was a family partition under a registered partition deed dated 20.81987 and the suit property had fallen to the share of defendant no. 1, the father of the plaintiff. It was the plaintiff''s case that there was no division of the suit property and it continued to be a joint family property as between the plaintiff, his father and his brothers. It was his further case that he was married and his wife had refused to live along with his father and his brothers and therefore, they had set up a separate residence. And later, when he sought for partition of the suit property, it was denied and therefore, the suit.

The defendants entered appearance and contested the suit and contended that the plaintiff was no longer a member of the family, as he was given in adoption at a young age, to the elder brother of the defendant no. 1 namely, K.T. Kenchappa and that he had lived all his life along with K.T. Kenchappa except from the year 1992, when he had set up his own home. The fact of adoption was sought to be established by producing several documents, such as, the school records of the plaintiff, the driving licence of the plaintiff, the registration certificate of a motor vehicle that the plaintiff owned, a will said to have been executed by his adoptive father Kenchappa etc., and it was claimed that all along, he has put himself out as the son of his adoptive father K.T. Kenchappa and therefore, was precluded from claiming any right under the natural father and was not entitled to the suit relief.

It is on the basis of these pleadings, that the following issues were framed by the court below:

Whether the plaintiff proves existence of the joint family comprised of himself and defendant nos. 1 to 3?

Whether the plaintiff proves that the suit schedule property is the joint family property?

Whether defendant nos. 1 to 3 prove that the suit schedule property is the separate property of defendant no. 1?

Whether the defendants prove that the plaintiff was given in adoption to K.T. Kenchappa at a fairly young age, thereby he ceased to be the member of the family of the 1st defendant?

Whether the defendants prove that the court fee paid on the plaint is not sufficient?

Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule property?

The court below held issues 1, 2 and 6 in the affirmative and issues 3 to 5 in the negative and allowed the suit granting one-sixth share in the suit property to the plaintiff. It is that which is under challenge in the present appeal.

The learned counsel for the appellants would point out that in the face of the several documents that were produced to indicate that the plaintiff was described as the son of K.T. Kenchappa, it could not be denied that he was not adopted by K.T. Kenchappa and his wife. The adoption having taken place when the plaintiff was a child, the absence of positive evidence as to the giving and taking was secondary, as it was not a case where the plaintiff was seeking to establish adoption and thereby dislodging the line of succession of another. As evident from the long line of cases, which have consistently laid down that the adoption must be established by the fact of giving and taking, in the present case on hand, defendant no. 1, who was the father of the plaintiff, was alive and he has tendered positive evidence to indicate that he had given the plaintiff in adoption and he was taken in adoption by K.T. Kenchappa, his elder brother. Further, this coupled with the several documents that were produced, could not be negated as it would stand established that over a period of time, the plaintiff has been shown as the son of K.T. Kenchappa for all purposes. Hence, that admitted circumstance would not enable the plaintiff to claim any right over the property of the natural father. He would also point out that the circumstance that K.T. Kenchappa had executed a will Exhibit D. 1, wherein he has categorically indicated that he has adopted the plaintiff apart from Girijamma, the daughter of another brother of K.T. Kenchappa and that he was bequeathing his property equally to the plaintiff and Girijamma. But Exhibit P. 16 came to be executed three years after the suit was filed, which makes curious reading, in that, though Kenchappa continued to hold that the property stood bequeathed to the plaintiff and Girijamma, had stressed the circumstance that he had adopted only Girijamma and none other. This would create a doubt as to the reason for execution of the second will with the only change, namely, to exclude the plaintiff as being the adopted son, which he has categorically declared under Exhibit D. 1.

On the other hand, the learned Counsel for the plaintiff would contend that there is no escape from the requirement that in terms of Section 11(6) of the Hindu Adoption and maintenance Act, 1956, the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption:

In the instant case on hand, except the self serving statement of defendant no. 1, there is no positive evidence tendered through any other person, to indicate the factum of giving and taking in adoption. The documents that are sought to be relied upon are nebulous, in that, there are several documents, which are produced by the defendants themselves, which would contradict the other documents that are produced, claiming that the plaintiff was the adopted son of Kenchappa. As for instance, in a wedding card, if really the plaintiff was the adopted son of Kenchappa, the name of Kenchappa would necessarily have been shown as the father of the plaintiff. However, the same, which is on record, indicates defendant no. 1 as the father. Secondly, Exhibit P. 15, Voters Identity Card, which is available on record would also indicate the first defendant as the father. Exhibit P. 17, a letter written by Kenchappa during his life time to the advocate of the plaintiff, to declare that he has not adopted the plaintiff at all and Exhibit P. 16, a will of late Kenchappa declaring that apart from Girijamma he has not adopted any other and that being the later will, would prevail over Exhibit D. 1. Since Exhibit D. 1 was never proved, by examining the attesting witness, it cannot be given credence nor can be looked into, as the same has not been proved. Therefore, it is not in dispute that the plaintiff has been living along with his wife independently since the year 1992. From the record, it could only be made out that he lived with the adoptive father between the period 1987 to 1992. This by itself would not indicate that he was the adopted son. Insofar as the school record indicating K.T. Kenchappa as the father of the plaintiff is concerned, this was not noticed by the plaintiff till he attained the age of majority and when he questioned his parents, as to the fact that the adoptive father''s name is shown in the school records, it was explained to him that he continued to be the karta of the family as the elder brother of the first defendant and therefore., it is out of regard for his seniority, that his name has been shown in the school records and that no significance turns on the said fact and therefore, he had ignored the same. In the face of the circumstance that there are several documents indicating the plaintiff as the son of the natural father, it cannot be held that the adoption is established, when the degree of proof required to establish adoption is necessarily governed by the law, which prescribes that it should be strictly proved and therefore, the defendants seeking to rely on documents, which cannot be accepted with any degree of certainty, would lead to a miscarriage of justice. The learned Counsel would, therefore, seek that the suit be dismissed.

By way of reply, the learned counsel for the appellants would submit that there are four documents, which are sought to be pointed out by the plaintiff, indicating that he was always the son of the first defendant and hence the adoption was not established. Firstly, he would point out that insofar as the wedding invitation card is concerned, the plaintiff himself has declared in the course of cross-examination that the invitation card was printed by Kenchappa himself and the intention in disclosing the natural father''s name could have been explained only by Kenchappa. Insofar as the Voters Identity Card is concerned the same is a document which has come into existence at the instance of the plaintiff and the plaintiff could very well have indicated his natural father''s name in the Voters Identity Card and it is therefore not an independent source, which would establish that he was not the adopted son of K.T. Kenchappa.

Insofar as Exhibit P. 16 is concerned, he would point out that it has come into existence three years after the suit was filed. Coupled with the fact that Exhibit P. 17 was also a letter written by Kenchappa to the advocate of the plaintiff, was certainly a circumstance, which indicated that there was an all out effort apparently at the instance of the plaintiff, to ensure that the clear categorical statements made in the will Exhibit D. 1 was nullified by recourse to the creation of Exhibits P. 16 and P. 17. It is also to be noticed that while doing so, the plaintiff has also ensured that he does not lose the property that was bequeathed to him and it is for this reason that in Exhibit P. 16, Kenchappa, while indicating that apart from Girijamma, there was no adoption made by him, has still bequeathed his property to the extent of half share to the plaintiff out of love and affection. This is certainly a mischievous ploy adopted by the plaintiff with the active assistance of Kenchappa, who however, had died by the time the evidence was tendered in the case. Therefore, the learned Counsel would submit that the four documents that have been referred to by the plaintiff to deny that he was the adopted son would not advance his case. Insofar as the degree of proof and the insistence that giving and taking ought to be established beyond doubt, has been discharged to the extent that the natural father has declared so by tendering his evidence, coupled with the attendant circumstance, that when the plaintiff had worked as an apprentice in NGEF, he had shown Kenchappa as his father, which also establishes such adoption. Further he would submit that the finding of the trial court that giving and taking in adoption was to be strictly established and since Exhibit P. 16 executed by Kenchappa declares that he had not adopted the plaintiff, it should be held that there was no adoption and since there is no denial that defendant no. 1 was the natural father of the plaintiff and there was also no denial that there was no partition, the plaintiff was entitled to one-sixth share, is a correct finding and seeks that the appeal be allowed and the suit be dismissed.

In the above circumstances, the first point for consideration would be whether the defendants were required to establish adoption with such certainty as would be the case where the plaintiff pleads adoption and seeks to dislodge the line of succession. This is an important feature, which would certainly be a distinguishing feature in addressing the factum of adoption. There are no special rules prescribed to prove the factum of adoption. It is to be proved just as any other fact. In the present case on hand, defendant no. 1, the natural father, has tendered evidence of giving in adoption and his elder brother having taken the plaintiff in adoption. The adoption was certainly made at a very young age of the plaintiff. Therefore, it could even be characterized as an ancient transaction, in a relative sense. The Supreme Court in L. Debi Prasad (Dead) by Lrs. Vs. Tribeni Devi and Others, has opined, insofar as the adoptions that have taken place years before the same are questioned, as follows:-

In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.

Therefore, in the present case on hand, several unimpeachable documents such as, the School Certificate of the plaintiff, the driving licence of the plaintiff, the registration certificate of a motor vehicle of the plaintiff and an apprentice certificate issued by the NGEF and the fact that he has inherited the properties from the adoptive father, would categorically point to a circumstance where he was the adopted son of K.T. Kenchappa. The other documents which are sought to be relied upon by the plaintiff to indicate that he continued to be the son of defendant no. 1 and that he was never given in adoption, have sufficiently been explained. Further, insofar as Exhibits P. 16 and P. 17, which have been relied upon by the trial court, are certainly documents which have been created for the purpose of denying that the plaintiff was the adopted son of K.T. Kenchappa, as rightly pointed out by the learned Counsel for the defendants. The vague explanation sought to be given for the reason as to why K.T. Kenchappa''s name is shown in the records cannot be readily accepted. These documents would have the effect as if they were admissions by the plaintiff of such adoption and would certainly be binding on him. Therefore, in the face of which, it cannot be said that the plaintiff was entitled to a share in the suit property, on the footing that he was never adopted and he continued to be a member of the family of the first defendant.

Hence, the appeal is allowed and the suit is dismissed.