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Shiddappa Vs. Chennabasappa Giriyappa Badappanwar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 120 of 1970
Judge
Reported inAIR1973Kant245; AIR1973Mys245; (1973)1MysLJ162
ActsHindu Law; Hindu Adoptions and Maintenance Act, 1956 - Sections 16
AppellantShiddappa
RespondentChennabasappa Giriyappa Badappanwar and ors.
Appellant AdvocateV. Tarakaram, Adv.
Respondent AdvocateP. Ramachandrarao, Adv.
DispositionAppeal dismissed
Excerpt:
.....stood rebutted. exhibit 118, has been held to have been proved, by positive evidence, but not by merely placing reliance on the failure of the appellant to establish his case of factum of adoption. in this view of the matter the presumption in question clearly stands rebutted......directed against the judgment and decree in civil appeal no. 408 of 1965, made by the learned civil judge at hubli. the learned civil judge confirmed the judgment of dismissal of suit made by the munsiff and j m f. c., ranebennur. in l. c. suit no. 8 of 1963.2. the material facts, briefly, are as follows the suit of the appellant was for the relief of partition and separate possession of his share in joint family properties specified in the plaint schedule. it has been claimed on his, behalf that he is the adopted son of basappa. who was the brother of the first respondent-first defendant, and that there is a deed evidencing such adoption executed and duly registered on 25-6-1938. on behalf of the respondents, the defence is that the adoption is untrue and the deed of adoption is a.....
Judgment:

B. Venkataswami, J.

1. This is a plaintiff's appeal directed against the judgment and decree in Civil Appeal No. 408 of 1965, made by the learned Civil Judge at Hubli. The learned Civil Judge confirmed the judgment of dismissal of suit made by the Munsiff and J M F. C., Ranebennur. in L. C. Suit No. 8 of 1963.

2. The material facts, briefly, are as follows The suit of the appellant was for the relief of partition and separate possession of his share in joint family properties specified in the plaint schedule. It has been claimed on his, behalf that he is the adopted son of Basappa. who was the brother of the first respondent-first defendant, and that there is a deed evidencing such adoption executed and duly registered on 25-6-1938. On behalf of the respondents, the defence is that the adoption is untrue and the deed of adoption is a false and got up document. It is unnecessary to refer to the other pleas and findings relative thereto as the same have not been challenged before me.

3. On behalf of the appellant. Sri V. Tarakaram the learned counsel, urged two, contentions. They are:

1. That the approach of the court below was erroneous in that the issues regarding adoption, as framed, have cast the burden exclusively on the plaintiff; and

2. That the presumption arising under Section 16 of the Hindu Adoptions and Maintenance Act, 1956, hereinafter referred to as the Act. is clearly attracted and the appellant should have been extended the benefit of the presumption arising from the provisions thereof that the adoption has taken place in due compliance with the provisions of the Act.

4. On behalf of the respondents. Sri P. Ramachandra Rao, the learned advocate, submitted by way of reply to the above contentions that the issues casting the burden on the appellant were clearly in accordance with law and it may be that the onus might later on shift to the respondents. On the second contention, his submission is three fold: 1. That the contention is being raised for the first time and must, therefore, be disallowed: (2) that Section 16 of the Act would not be applicable to a deed of adoption prior to the coming into force of the Act; and (3) that, in any event, the presumption is amply rebutted by the evidence on record.

5. In elaboration of the second of his contentions. Sri Tarakaram submitted that Section 16 of the Act enacts a rule of evidence and. therefore, belongs to the realm of procedural law. In the absence of anything to the contrary in the statute itself it Is retrospective in effect and therefore, it cannot be postulated that it would apply only to deeds executed subsequent to coming into force of the Act. His further argument is that the fact that the appellant had failed to prove the factum of adoption as such could not be a ground to hold that such a presumption stood rebutted. The point of the argument is that It was the duty of the respondents to have disproved the adoption once the deed of adoption. Exhibit 118, has been held to have been proved, by positive evidence, but not by merely placing reliance on the failure of the appellant to establish his case of factum of adoption. In support of this submission he placed reliance on a decision of a learned Single Judge of the High Court of Punjab and Haryana in Basdeo BhardwaJ v. Ram Sarup. ILR (1968) 2 Puni & Har 231 and particularly on the following enunciation occurring at page 237 of the above report'

'.....,... There is no option left to the Court, and it Is bound to take the fact as proved, until evidence is given to disprove it and the party interested in disproving it must produce such evidence if he can. The factum probandum was that the adoption had been made In accordance with the provisions of this Act. The presumptive proof is sought to be disproved by casting aspersions on the credibility of the oral evidence. Supposing that was successfully done, that will only prove that the witnesses are not to be relied upon but that would not suffice to disprove the presumption. It is true that the presumption is a presumption juris and It is competent to a Party to show that the inference was fallacious. It must be conceded that Section 16 does not raise a presumption juris et de jure when no evidence to displace presumption is allowed to be given. In decreeing the suit, the trial Court has placed its reliance upon certain circumstances.'

6. By way of reply on behalf of the respondents, reliance is placed on the Division Bench decision of this Court in Govinda v. Chimabai, AIR 1968 Mys 309. It is further contended that the learned Civil Judge. In appeal, has exhaustively considered all the circumstances relevant to the proof of adoption and come to the conclusion that it had not been proved although the deed of adoption has been held to have been proved. He, therefore, contended that the presumption arising under Section 16 of the Act, relied on for the appellant, stood amply rebutted.

7. It seems Co me that neither of the contentions urged on behalf of the appellant should prevail. On the first contention, suffice to refer to an enunciation of the Supreme Court in Debi Prasad v. Smt. Tribeni Devi, : [1971]1SCR101 . It is :

'The burden of proving satisfactorily that he was given by his natural father and received by the adoptive father as his adoptive son is on the alleged adopted son. But although the person who pleads that He had been adopted Is bound to prove his title as adopted son, as a fact, yet from the long period (nearly 54 years in this case) during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact is to be favourably entertained'.'

8. On the second, it may be mentioned that the enunciation in Basdeo Bhardwai's case, ILR (1968) 2 Punj & Har 231 somewhat supports the or position of Sri Tarakaram. But it is unnecessary to examine the decision any further, for it seems to me, that even assuming the interpretation placed on Section 16 in the decision relied on by Sri Tarakaram, has laid down the law correctly, to my mind, it would not preclude a party contesting such an adoption from relying on the circumstances available from the record, quite apart from the evidence of witnesses adduced In support of the factum of adoption, in order to rebut the presumption. In the case on hand, the learned Civil Judge, though not approaching the case from the point of view of Section 16 of the Act, has considered all such circumstances in the case and has come to the conclusion that adoption had not taken place at all. In this view of the matter the presumption in question clearly stands rebutted. The learned Civil Judge, in doing so, has more or less conformed to the principles enunciated in the decision of this court in Govinda's case. In this view of the matter. I consider it unnecessary to consider the other legal contentions raised in the context of Section 16 of the Act.

9. In the result, this appeal fails and is dismissed, but in the circumstances, no costs.


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