JUDGMENT
Ajit J. Gunjal, J.
1. Admit.
2. The following substantial questions of law arise for consideration in this appeal:
(a) Whether the learned Appellate Judge was justified in reversing the finding of the learned Trial Judge on the question of adoption holding that there is no sufficient evidence adduced by the plaintiff to prove his adoption?
(b) Whether the suit property is a joint family property of the defendants?
(c) Whether the learned Appellate Judge was justified in recording a finding that the suit property is a Joint Family Property of the defendants’ family i.e., the genetic family of the plaintiff.
3. The records arc received and the matter is taken up for final disposal with consent.
4. During the course of this Judgment, the parties would be referred to as per their ranking in the Trial Court.
5. The plaintiff’s suit is for declaration of title in respect of the suit schedule property, for delivery of vacant possession and to pay damages was decreed on contest, by the learned Trial Judge. The same was questioned by the contesting defendants before the Lower Appellate Court The Lower Appellate Court, on re-assessing the evidence has recorded a finding that the plaintiff has failed to prove adoption. Consequently, the question of granting a decree for declaration would not arise. Hence, dismissed the suit.
6. Pew facts are necessary to be stated for disposal of this appeal:
It is the case of the plaintiff that the suit property originally belonged to one Iragappa S/o. Muniyappa. The said Iragappa being a close relative of the plaintiffs genetic lather adopted the plaintiff about 35 years back, when he was about two months old. The adoptive parents of the plaintiff died about 30 years prior to the filing of the suit It is the further case of the plaintiff that during the life time of his adoptive parents they gave him education, got him married, and gave all the properties including the suit property and he being the adopted son of Iragappa and Hiremma is enjoying the properties in Ms own right. Defendant No. 1 is the genetic elder brother of the plaintiff. Defendant No. 2 is the second wife of defendant No. 1 and defendants 3 and 4 are the children of defendants 1 and 2 and defendant No. 5 is the wife of defendant No. 3. It is the further case of the plaintiff that during monsoon, the house belonging to the second defendant collapsed and on humanitarian grounds, an area ad measuring 32 feet X 37 feet was given to them to put up a small construction. The defendants had promised that they would vacate the area within six months time. Since they did not vacate, the present suit is filed for aforesaid reliefs.
7. The defendants have entered appearance pursuant to the suit summons. They have contested the proceedings inter alia contending that the suit property is the Joint Family property of the defendants and it does not belong to the family of Iragappa. The defendants would also deny the adoption. They would further contend that the defendants 2 and 3 have filed a suit for partition and separate possession against defendant No. 1 and the children of the 1st wile of defendant No. 1 in O.S. No. 582/1993. The said suit, on contest was decreed, which according to the defendants has attained finality. The defendants would further state that the subject matter of the present suit was also one of the properties, which was partitioned. Hence, sought for dismissal of the suit.
8. During trial, the learned Trial Judge has framed as many as six issues. On the material issue, the learned Trial Judge has recorded a finding that the plaintiff has proved that he is the adopted son of Iragappa and Hiremma and consequently has derived title of the suit schedule property inasmuch as he belongs to the family of Iragappa and consequently decreed the suit. As stated earlier, the learned Appellate Judge has reversed the finding on the ground that no evidence is forthcoming to show that the plaintiff had gone in adoption to Iragappa and Hiremma. In the circumstances, he has recorded a finding that the question of granting an injunction in respect of the suit schedule property does not arise.
9. In support of the substantial question of law framed, the learned Counsel appearing for the plaintiff submits support of the plaintiff’s case that he has gone in adoption, the plaintiff has examined five witnesses P.W. 1 to P.W. 5. P.W. 5 is none other than defendant No. 1, the genetic elder brother of the plaintiff; who supported the case of the plaintiff. There was enough evidence to show that indeed the plaintiff was given in adoption to Iragappa and Hiremma. He would refer to the sale deed Ex. P18, which would describe the plaintiff as the son of Iragappa and Hiremma. He also submits that the plaintiff has inherited all the properties of Iragappa. Since the plaintiff has been residing with Iragappa and Hiremma, his adoptive parents since 1947, presumption is required to be raised that there is a valid adoption.
10. Mr. Sadashiva Reddy, learned Counsel appearing for the defendant supports the judgment and decree of the Appellate Court He further submits that in the suit instituted by defendants 2 and 3 against defendant No. 1 and the children of the 1st wife of defendant No. 1, the suit property was shown as Joint Family property of the genetic family. Hence, he submits that the question of treating the suit property as the property of Iragappa does not arise. He further submits that in the absence of any evidence, the finding recorded on adoption by the learned Appellate Judge cannot be faulted.
11. In so far as the first substantial question of law regarding adoption is concerned, indeed it is to be noticed that the plaintiff, during the course of his pleadings as well as evidence has stated that he has been taken in adoption by Iragappa and Hiremma It has also come in evidence that Iragappa and Hiremma did not have any children. Hence, the plaintiff was taken in adoption. It is no doubt true that there is no registered document to show that the plaintiff has been taken in adoption by Iragappa and Hiremma, But however, what is significant is the attending circumstances including evidence adduced by the plaintiff as well as the defendant would go a long way in proving the tact that the plaintiff was taken in adoption by Iragappa and Hiremma.
12. The first of the document, which would reflect regarding adoption is Ex. P18 sale deed stated to have been executed by defendant No. 1 the genetic brother of plaintiff in his favour. A recital in Ex. P18 is a pointer to the fact that the plaintiff was adopted by Iragappa and Hiremma. In fact in Ex. P18, the plaintiff has been shown as the son of Iragappa. This document is of the year 1964. That apart, defendant No. 1 was examined as P.W. 5 on behalf of the plaintiff. P.W. 5, during the course of deposition has clearly stated in no unmistakable terms that the plaintiff was adopted by Iragappa and Hiremma The other document namely Ex. P1, which is a Kanishmari extract would disclose that the house mentioned therein would belong to Iragappa. Ex. P2 is a tax demand register, which would disclose the name of the plaintiff. Ex. P2 also shows the name of plaintiff as Munivenkatappa, son of Iragappa. So also Ex. P5. It is also to be noticed that the suit filed by the defendants 2 and 3 as against defendant No. 1 and the children of the 1st wife, plaintiff is not made a party to the said proceedings. Obviously, if the plaintiff was not taken in adoption by Iragappa and Hiremma, he ought to have been made a party in the said suit The fact that he was not made a party by defendants 2 and 3, itself would be a clear indication that the plaintiff’ had gone out of the family. It is also to be noticed that the plaintiff has succeeded to all the properties left behind by Iragappa and Hiremma. In the absence of any registered document to show that the plaintiff was taken in adoption, the other attending circumstances are required to be taken note of. It is to be noticed that the true result of adoption is to displace the natural course of succession and a person who sets up adoption must strictly prove his adoption so as to enable him to succeed to the property. The Privy council in the case of Dal Bahadur Singh v. Bijai Bahadur reported in AIR 1930 PC 79 has observed thus:
Very grave and serious onus rests upon a person who seeks to displace the natural succession of property by the act of an adoption, in such a case the proof requires strict and almost severe scrutiny.
It is to be observed that the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is, having regard to the fallibility of human memory and the uncertainty of evidence given after a lapse of such time to see that the evidence is sufficient and strong. Another decision of the Privy Council could be referred to in the case of Sri. Kanchumarthi Venkata Seetharama Chandra v. Kanchumarthi Raju reported in AIR 1928 PC 201 wherein adoption was questioned alter a lapse of considerable period of time. The privy counsel has observed thus:
It stands to mason that after such long term of years and variety of transactions of open life and conduct, upon one footing alone namely, that the adoption was recognised as valid act – the burden resting, altogether apart from the law of limitation, upon any litigant who challenges the authority of an admitted adoption, is indeed of the heaviest order.
13. These two decisions wherein the alleged adoption was old one and have taken place many years ago and strict proof of giving and taking is not necessary since it is difficult to give such evidence and another such circumstance where slight evidence would be sufficient to prove adoption. To my mind, this ought to have been the correct approach of the learned Appellate Judge, while considering whether indeed the plaintiff was taken in adoption by lragappa and Hiremma. It is also to be noticed that under the Hindu law giving and receiving of a boy are absolutely necessary to the validity of adoption. They are the operative part of ceremony, which converts the boy of one family to another family. But however, it is to be noticed that the Hindu Law does not require giving and receiving of a boy, so far as acceptance is concerned. For a valid adoption all that the law requires is that the parent in adoption and that the boy shall be handed over and taken over by the parties. It is to be noticed that in the case of a long recognition of an adoption raises a strong presumption in favour of the validity of the adoption arising from the loss of his rights from his own family and adopt the right of another family. In ancient adoptions, where the evidence by lapse of time is not available and there are documents evidencing the adoption, then in such circumstances, it is for them who challenge the adoption to prove that the said adoption has not taken place, as there is no circumstance sufficient to prove adoption is forthcoming. As discussed earlier, in Ex. P18, there is a recital that the plaintiff is the son of Iragappa, it is also to be noticed that the plaintiff has succeeded to all the properties of Iragappa. In the suit tiled by defendants 2 and 3 as against defendant 1 and others, the plaintiff was not made a party. All these circumstances would clearly prove that the plaintiff’ indeed was taken in adoption by Iragappa and Hiremma. In fact there is some reference during the course of evidence of P.W. 2 to P.W. 4 that the plaintiff was a Sakumaga. This part of the evidence will have to be considered along with the other evidence. One also will have to take note of the fact that the persons who have given evidence may not know the difference between Sakumaga and Dattumaga i.e., a foster son and an adopted son. The fact would remain that both would be an indication of the fact that the plaintiff was residing with Iragappa and Hiremma and had gone out of the genetic family.
14. Having considered the evidence on the question of adoption, I am of the view that the learned Appellate Judge was clearly in error in holding that the plaintiff has failed to prove his adoption. The said finding on the question of adoption requires to be interfered.
15. In so far as the second substantial question of law regarding tide title is concerned, it is to be noticed that the evidence in this regard is lacking inasmuch as the said property was the subject matter of a suit filed by defendants 2 and 3 for partition and separate possession as against defendant No. 1. It is admitted in the earlier proceedings that the suit property was the joint family property. Even otherwise, it is to be noticed that the said finding is based on appreciation of evidence and it does not warrant interference inasmuch as it is a question of fact. Consequently, the first substantial question of law, which is framed is required to be answered in favour of the plaintiff and the findings recorded by the learned Appellate Judge that the plaintiff is not the adopted son of Iragappa and Hiremma is liable to be set-aside and the finding recorded by the learned Trial Judge that the plaintiff is the adopted son of Iragappa and Hiremma is restored. The remaining two substantial questions of law are answered in favour of defendants.
16. Consequently, the appeal is allowed in part.
The suit of the plaintiff – appellant is decreed in part declaring that he is the adopted son of Iragappa and Hiremma.
17. The suit in respect of other reliefs in so far as declaration and possession in respect of the suit schedule property, stands dismissed.
Parties are directed to bear their own costs.