Hindu Adoption & Maintenance Act | Presumption Of Validity Operates In Favour Of Registered Adoption Deed, Strict Proof Not Required: Karnataka HC

The Karnataka High Court has said that a strict burden of proof for an adoption cannot be insisted upon when the adoption deed is registered.

A single judge bench of Justice HP Sandesh allowed an appeal filed by MG Purushotham who had challenged the order of the trial court and the first appellate court allowing the suit filed by NK Srinivasan and others, declaring him as the absolute owner of the suit schedule properties and held that the adoption deed was null and void and not binding on the plaintiff.

It said “There is a presumption about the validity of the adoption and when the adoption deed is registered, and in such circumstances, the adoption is in conformity with the Act. Strict burden of proof for an adoption cannot be insisted when presumption is available under Section 16 of Hindu Adoption and Maintenance Act, 1956."

Case Background

As per the plaintiff's case before the trial court, the origin of the family can be traced to Karigowda who had two wives by the name Thimmamma and Venkatamma.

It was said that through Thimmamma, he had one son, and from Venkatamma, late K. Thammaiah and the plaintiff Srinivasan were born. It was submitted that after the release deed dated 05.05.1943, Thimmaiah lived separately along with his wife Nanjamma, till his death in 1954, and late Karigowda, late K. Thammaiah and the plaintiff lived as coparceners till the death of their father Karigowda, who died in 1950.

It was submitted that thereafter, K. Thammaiah also died in the year 1964, intestate and issueless as a bachelor, due to which the plaintiff became the sole surviving coparcener of the undivided family of late Karigowda.

Thereafter T. Thammaiah died issueless in 1954, leaving behind him his widow Nanjamma and the plaintiff. It was said that Nanjamma is entitled only to maintenance and the plaintiff as a half-brother is entitled to succession to the schedule properties under the law.

Appellants arguments

The appellant contended that the Trial Court had wrongly accepted the case of the plaintiff that the adoption of the appellant was not brought to his notice and the date on which the adoption was made was also not pleaded.

It was argued that the ceremony and the persons who were present in the same were not pleaded or proved.

It was argued that the appellant being the adopted son of Late T. Thammaiah had become the absolute owner of the schedule properties, and the adoption deed was registered in the year 1954 itself.

It was submitted that the revenue records revealed that after the death of Late T. Thammaiah the property was transferred in the name of Nanjamma and thereafter, in the name of the appellant.

Findings:

The bench referred to the Apex court judgment in the case of Eramma and Ors v Mudappa (1966) and provisions of the Hindu Law Woman's Rights Act.

It said that Najamma could make an adoption unless she was expressly prohibited from doing and there was no express prohibition in taking adoption of defendant No.1, who was none other than the son of Nanjamma's brother.

Court also accepted the certificate copies of sale deeds executed by Nanjamma for the sale of the properties where reference was made that defendant No.1 was her adopted son.

The court held that the document of adoption came into existence in the year 1954 and sale deeds were executed in the year 1956 for sale of three items of properties.

Thus, it was held that both the Courts committed an error in concluding that the adoption was not proved only on the ground that there was no giving and taking ceremony, failing to note the registered documents of the years 1954 and 1956 under Section 90 of the Evidence Act.

Court rejected the contention that the physical act of giving and receiving in adoption was necessary for the validity of an adoption. It referred to Section 11 of the Hindu Adoption and Maintenance Act, 1956 and said that there was no particular mode or manner for the act of giving and taking.

What is essential is that there should be some overt act to signify delivery of child from one family to another, the Court said.

It further noted that there would be a presumption of validity under Section 16 of the Hindu Adoption and Maintenance Act, 1956, whenever any document (adoption deed) registered under any law was produced before a court.

It observed that the adoption was being challenged after more than 42 years in the year 1996, and strict rules of evidence after a lapse of 50 years cannot be insisted upon when both oral and documentary evidence were available before the Court.

It held “both the Courts committed an error in concluding that the plaintiff is in possession of the suit schedule properties and both the Courts failed to take note of the revenue documents and subsequent to the death of her husband, the revenue documents were standing in the name of Nanjamma and that too, in the year 1989, khatha has been transferred in the name of Nanjamma and also there was an admission that she was in possession of the properties after the death of her husband and thereafter, she also died in the year 1995 and immediately after 1995, present suit is filed.”

Accordingly, it allowed the appeal.

Appearance: Advocate G.B.Nandish Gowda for Appellants.

Advocate Sagar B.B & Advocate sahish M Doddamani for R1.

AGA M.V.Adhithi for R2.

Citation NO: 2024 LiveLaw (Kar) 90

Case Title: M G Purshotham & Others AND N K Srinivasan & Others

Case No: Regular Second Appeal No 498/2007

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