{"id":75506,"date":"2007-08-08T00:00:00","date_gmt":"2007-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-k-s-parvathamma-wo-late-b-vs-sri-m-munikrishnappa-so-on-8-august-2007"},"modified":"2016-04-21T06:29:58","modified_gmt":"2016-04-21T00:59:58","slug":"smt-k-s-parvathamma-wo-late-b-vs-sri-m-munikrishnappa-so-on-8-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-k-s-parvathamma-wo-late-b-vs-sri-m-munikrishnappa-so-on-8-august-2007","title":{"rendered":"Smt. K.S. Parvathamma W\/O Late B. … vs Sri. M. Munikrishnappa S\/O … on 8 August, 2007"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Smt. K.S. Parvathamma W\/O Late B. … vs Sri. M. Munikrishnappa S\/O … on 8 August, 2007<\/div>\n
Author: S B Adi<\/div>\n
Bench: S B Adi<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Subhash B. Adi, J.<\/p>\n
Page 2212<\/p>\n
1. R.F.A.No. 294\/2003 is by the legal representatives of the plaintiff in O.S.No. 4583\/1988. R.F.A. Cross Objection No. 18\/2003 is by the second defendant. R.F.A. Cross Objection No. 2\/2004 is by defendant No. 3. R.F.A. No. 293\/2003 is by the legal representatives of defendant in O.S.No. 3252\/1987 against the judgment and decree dated 18.11.2002. Parties will be referred to as per their ranking in O.S.No. 4583\/1988. Defendant No. 1 Smt. B. Vishalakshmamma and defendant No. 2 M. Munikrishnappa in O.S.No. 4583\/1988 are the plaintiffs 1 and 2 in O.S.No. 3252\/1987. The plaintiff in O.S.No. 4583\/1988 is the defendant in O.S.No. 3252\/1987.\n<\/p>\n
2. O.S.No. 3252\/1987 is suit for declaration and injunction whereas O.S.No. 4583\/1988 is for declaration that the sale deed dated 27.11.1984 executed by defendant No. 1 in favour of defendant No. 2 is nominal, void and not binding on the plaintiff. The gift deed dated Page 2213 24.01.1985 executed by defendant No. 1 in favour of defendant No. 3 is nominal and sham and not binding on the plaintiff, the compromise petition dated 16.02.1987 and the decree passed thereon does not bind the plaintiff and for declaration that the plaintiff is the absolute owner of the suit schedule properties.\n<\/p>\n
3. The plaintiff’s case in O.S.No. 4583\/1988 is that, he is natural son of N. Narayanaswamy and Smt. Chikkanagamma. When he was a child of six months, he was taken in adoption by M. Byrashetappa and his wife Smt. Vishalaskshamma i.e., defendant No. 1. The premises bearing No. 2, 2\/1 and 2\/2 are situated in Old Tharagupet belongs to the first defendant’s father. He executed the will dated 24.10.1932 bequeathing his properties in favour of first defendant. Though these properties were bequeathed to her, she never treated these properties as her separate property and she relinquished her right in favour of the joint family consisting of plaintiff defendant No. 1, and his adopted father namely Byrashetappa. Defendant No. 1 never claimed any interest in this property. His adoptive father pulled down the old construction bearing No. 2\/1 and erected ground floor and first floor by expending substantial amount. Sri. Byrashetappa died on 25.03.1983. Subsequent to his death, the plaintiff constructed the second floor at his cost. The first defendant has not contributed any money for construction. Defendant No. 1 knowing fully well that, the plaintiff constructed the building and he is having exclusive title to the premises bearing No. 2\/1, on the basis of doctrine of equitable and promissory estoppel. However, at the most she has share in the premises bearing No. 2 and 2\/2. It is also stated that the plaintiff had availed loan from the Co-operative Bank in the year 1986 by executing mortgaged deed. The second defendant started residing with the first defendant soon after the plaintiff shifted his residence to the second floor. Defendants-2 and 3 started to exercise a dominating influence and control over defendant No. 1 on the pretext of helping her and defendant No. 2 got the sale deed in his favour on 27.11.1984 and defendant No. 3 got a gift deed in his favour on 24.01.1985. The plaintiff stated that the gift and the sale transaction are void and not binding on the plaintiff as the properties are joint family properties and premises bearing No. 2\/1 over which the plaintiff constructed the second floor has absolute right to enjoy the said property.\n<\/p>\n
4. Defendant Nos. 2 and 3 filed two separate written statement and alleged that the suit property bearing No. 2, 2\/ 1 and 2\/2 are the properties belonging to the father of the defendant No. 1. She acquired the said property as “Streedhana” by virtue of a will executed by her fattier she has not relinquished her right in favour of joint family nor she or M. Byrashetty have adopted the plaintiff. The suit properties being the exclusive property of defendant No. 1 the plaintiff has no right over the suit property nor he has got any share. Defendant No. 1 by registered sale deed has transferred the property in favor of defendant No. 2 and by gift deed she has transferred property on favour of defendant No. 3. Plaintiff No. 1 was not in a joint possession of the suit property with the defendant No. 1 at any point of Page 2214 time. There is no cause of action for filing the suit and that the suit properties are exclusive properties of defendant No. 1 and by virtue of the sale deed and gift deed both defendant No. 2 and defendant No. 3 have become the absolute owner of the suit schedule property.\n<\/p>\n
5. On the basis of the pleadings, the Trial Court framed the following issues in both the cases as under:\n<\/p>\n
1. Whether B. Nagaraj is the adopted son of Smt. Vishalakshmma and Byrashetty?\n<\/p>\n
2. Whether the properties inherited by Smt. Vishalakshamma from her father Appanna became the joint family properties?\n<\/p>\n
3. If they are joint family properties, whether the sale deed executed by Smt. Vishalakshamma in favour of Munikrishnappa is a sham document and intended to be never acted upon as contended by Sri. B. Nagaraj?\n<\/p>\n
4. If they are joint family properties, whether the gift deed executed by Smt. Vishalakshamma in favour of Nagaraj is only a sham document and never acted upon?\n<\/p>\n
5. Whether the plaintiffs in OS No. 3252\/1987 are entitled to a decree of declaration of title, possession and injunction as sought for?\n<\/p>\n
6. Whether the suit in OS No. 3252\/1987 is barred by time?\n<\/p>\n
7. Whether the suit in OS No. 4583\/1988 is barred by time?\n<\/p>\n
8. Whether the plaintiffs in OS No. 4583\/1988 are entitled to a decree of declaration and perceptual injunction as sought for?\n<\/p>\n
6. Before the Trial Court on behalf of plaintiff Sri. M. Munikrishnappa was examined as PW1. In OS No. 4583\/1988 C. Nagaraj was examined as DW1 and DW2 to DW6 were examined. On behalf of M. Munikrishnappa Ex.P1 to Ex.P77(a) were marked. On behalf of plaintiff Ex.D1 to Ex.D224 were marked.\n<\/p>\n
7. The Trial Court on appreciation of the evidence dismissed the suit of the plaintiff in OS No. 4583\/1988 and decreed the suit OS No. 3252\/1987 holding that plaintiff is the adopted son of Vishalakshmma and Byrashetty. The suit schedule property are not joint family properties that the sale deed and the gift deed executed by defendant No. 1 in favour of defendant No. 2 and 3 are not sham transaction and they are binding on the plaintiff and also hold that M. Munikrishnappa, the defendant No. 2 and defendant No. 3 are entitled for a decree declaring the title and for possession and also injunction whereas the plaintiff is not entitled for declaration as prayed in OS No. 4583\/1988.\n<\/p>\n
8. Sri H.R. Ananthakrishna Murthy learned Counsel appearing for the plaintiff raised four contentions:\n<\/p>\n
(i) That the plaintiff B. Nagaraja is adopted son of M. Byrashettappa and defendant No. 1-Vishalakshamma.\n<\/p>\n
(ii) That the gift deed executed by defendant No. 1 in favour of defendant No. 3 is not binding on the plaintiff.\n<\/p>\n
Page 2215<\/p>\n
(iii) The sale deed executed by defendant No. 1 in favour of defendant No. 2 is void and not binding on the plaintiff.\n<\/p>\n
(iv) That the suit schedule properties are joint family properties.\n<\/p>\n
9. In support of contention No. 1, learned Counsel for the plaintiff submitted that, defendant No. 1-(deceased) is the wife of M. Byrashettappa. They had no issues and they adopted the plaintiff when plaintiff was six months old child. Defendant No. 2 is younger brother’s son of M. Byrashettappa. Defendant No. 3 is brother-in-law of Munikrishnappa. Defendant No. 1 got the properties under a registered Will dated 24.10.1932 bequeathed by her father and she treated the said properties as joint family properties. Plaintiff contributed money for the purpose of construction of premises bearing No. 2\/1. On 25.3.1983, adopted father M. Byrashettappa died. After the death of Byrashettappa, plaintiff had put up further construction of 2nd floor of premises bearing No. 2\/1. In this regard, plaintiff had availed loan from Co-operative Bank jointly with defendant No. 1 by mortgaging the property.\n<\/p>\n
10. After the death of Byrashettappa, defendant No. 1 had filed a suit in O.S.No. 3797\/1985 seeking declaration against defendant Nos. 2 and 3 challenging the sale deed and gift deed. Plaintiff filed an application under Order 1 Rule 10 of CPC to get himself impleaded. But before he could be impleaded, the suit was compromised on 16.2.1997 between defendant No. 1 on one side and defendant Nos. 2 and 3 on the other side. The CRP No. 2873\/1987 which was filed against the rejection of an application filed by the plaintiff under Order 1 Rule 10 of CPC in the said suit was also rejected by observing that, since the plaintiff is not a party to the said suit, the decree passed therein is not binding on the plaintiff. He submitted that, despite of the gift deed and sale deed alleged to have been executed by defendant No. 1 in favour of defendant Nos. 2 and 3, the original sale deed as well as original gift deed remained with defendant No. 1. Defendant No. 1 in the said suit admitted that, the plaintiff is a adopted son of defendant No. 1. In this regard, he relied on the plaint filed by defendant No. 1, which is marked as Ex.D4 and submitted that, in a pleading the defendant No. 1 at paragraph 2 has stated that:\n<\/p>\n
 plaintiff’s husband Sri M. Byrashettappa has passed away on 25.3.1983 (Twenty-fifth March, Nineteen eighty-three) leaving behind the plaintiff and their adopted son Sri S. Nagaraj. His adoption having taken place when he was about six months baby. During the life time of the plaintiff’s husband, the plaintiff and their adopted son were living together as joint family members.\n<\/p>\n
11. He submitted that, pleadings carry more weight than the evidence. Defendant No. 1 in categorical terms has stated that, the plaintiff is the adopted son of defendant No. 1 and M. Byrashettappa and he is living with them. He relied on Ex.D.1- which is a paper publication of death of adopted father namely M. Byrashettappa on 25.3.1983 and pointed out that, in the said paper publication, plaintiff is shown as son and defendant No. 1 Page 2216 is shown as the wife, which is marked as Ex.D.1. He relied on Ex.D.5-voters list of Karnataka Legislative Assembly of 1988 and pointed out that, plaintiff name is mentioned at Sl.No. 93 shown as B. Nagaraj S\/o M. Byrashettappa. Photographs pertaining to the plaintiffs marriage which was published in the news paper marked as Ex.D6. Relying on Ex.D.6 learned Counsel for the plaintiff submitted that, in the newspaper, the marriage photo of the plaintiff is published and he is shown as son of M. Byrashettappa. He relied on Ex.D13, the marriage invitation card of the plaintiff wherein, invitation is in the name of M. Byrashettappa and defendant No. 1. They have stated that, plaintiff is their son. In this connection, he also relied on Ex.D.15- a letter addressed to M. Byrashettappa by Additional Private Secretary to the President of India dated 6.6.1970 interalia, acknowledging the receipt of marriage invitation card and greeting the newly wedded couple, wherein the plaintiff is shown as son of M. Byrashettappa. He also relied on Ex.D.7. Ex.D.7, a leaving certificate of the plaintiff and pointed out that, the plaintiff was admitted to the National High School during 1956-57 and the leaving certificate is issued on 29.7.1963. In the said leaving certificate, plaintiff is shown as son of M. Byrashettappa. He also relied on Ex.D.8, a certificate issued by the Secondary Education Board, which is dated 6.11.1960, wherein plaintiff is shown as son of M. Byrashettappa. He relied on enumerated form, wherein plaintiff is shown as son of M. Byrashettappa. He also relied on Ex.D11 to the similar effect and Ex.D12- a letter dated 17.10.1967 written by the Principal of National College, Basavanagudi to M. Byrashettappa informing that, the admission of B. Nagaraj was not approved by the Bangalore University and it is mentioned that B. Nagaraj is the son of M. Byrashettappa. He also relied on Ex.D14- which is a receipt for having purchased milk from Amruth Dairy for having received the money from B. Nagaraj i.e. plaintiff in connection with his marriage. Ex.D.16- is another newspaper, wherein the marriage of the plaintiff was published by showing plaintiff as son of M. Byrashettappa and Ex.D17- is a group photo of the family of the plaintiff. He relied on Ex.D.20- receipt for having paid the cremation charges of his adopted father M. Byrashettappa on 25.3.1983. In this connection, he relied on Ex.D.21, the invitation card of the death anniversary of his adopted father showing the plaintiff as son of M. Byrashettappa. He also relied on Exs.D23 and D24- invitations printed in the name of the plaintiff and defendant No. 1 and the plaintiff’s wife in connection with the death anniversary of M. Byrashettappa. He also relied on Ex.D25, which is publication of remembrance of 7th death anniversary of M. Byrashettappa and pointed out that, all these publications are in the name of the plaintiff and his wife and also by defendant No. 1.\n<\/p>\n
12. He relied on Ex.D.26, an affidavit filed by defendant No. 1 admitting that, plaintiff is the adopted son and mortgaged of item No. 1 suit property for the purpose of loan. Thereafter, he relied on Exs.D75 to 78, which are receipts for having paid the refund of advance amount to the tenants residing Page 2217 in the schedule properties on their vacating the tenements. He also referred to a compromise arrived at between the plaintiff and one tenant namely Khailashchand in HRC No. 2261\/1989 in respect of the one of the tenement in the year 1989. He also relied on Ex.D28 and submitted that, defendant No. 1 and the plaintiff jointly executed the mortgage deed mortgaging property bearing No. 2 on 13.2.1986. He pointed out from the said mortgage deed that, the plaintiff is shown as adopted son of M. Byrashettappa and Vishalakshamma – defendant No. 1.\n<\/p>\n
13. By relying on these documents, learned Counsel for the plaintiff submitted that, plaintiff is treated as adopted son by M. Byrashettappa as well as defendant No. 1- Vishalakshamma and further submitted that, adoption took place when the plaintiff was only six months old boy and from then he has been treated as adopted son in the family of the adopted parents. In this regard, he further submitted that, ‘Dattahomam’ is not necessary to prove the adoption. However, giving and taking is necessary. But under the facts and circumstances of this case, he strongly relied on the events that had happened in the past to show that it is an ancient adoption, where the positive proof of giving and taking cannot be placed on record. But the fact that, the adopted parents accepted the plaintiff as adopted son for years and treated him as an adopted son in their family is proved and it creates a presumption of adoption. He further submitted that, leading positive evidence of giving and taking to prove the adoption may not be possible because of passage of time. He also submitted that, nearly more than 40 years have lapsed from the date of adoption and oral evidence of actual giving and taking cannot be led, as the persons, who had witnessed the same are not available. However, he submitted that, the documents do prove the giving and taking of the plaintiff by the natural parents and also by the adopted parents. In this regard he strongly relied on judgment reported in 1970(1) SCC 677 and submitted that:\n<\/p>\n
 a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.\n<\/p>\n
14. However, in cases of ancient adoption, it is natural that, positive oral evidence will be lacking. Passage of time gradually wipes out such evidence and it is required to be judged on the basis of probabilities. He further submitted that, the Court based on the facts placed before it, has 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. The entire evidence adduced in the case is required to be looked into. The evidence clearly show that, the plaintiff was recognised as adopted son by M. Byrashettappa and Vishalakshamma. He relied on paragraphs 10 and 13 of the judgment to show that, in case of ancient adoption, positive oral evidence may not be possible. But the circumstances and probabilities do prove the adoption beyond doubt. Relying on said judgments, learned Counsel submitted that, right from 1957 as per Ex.D.7 undisputedly, plaintiff is shown as son of M. Byrashettappa. Even the Page 2218 marriage invitation card, performing of last rites of M. Byrashettappa, the photographs, mortgage deed executed by defendant No. 1 and an affidavit, pleading in her suit, all these documents clearly established that the plaintiff was recognised as the adopted son.\n<\/p>\n
15. Insofar as compromise arrived at by the defendant No. 1 and defendant Nos. 2 and 3, learned Counsel submitted that, though defendant No. 1 categorically pleaded that, plaintiff is the adopted son, but later on, at the instance of defendant Nos. 2 and 3 he was shown as foster son and not the adopted son. However, he submitted that, it is only at the instance of the defendant Nos. 2 and 3, defendant No. 1 got filed a compromise petition and the plaintiff is shown as a foster son. He strongly submitted that, the presumption arises by virtue of documentary evidence that, the plaintiff has been treated as adopted son by the family of M. Byrashettappa and Vishalakshamma.\n<\/p>\n
16. Learned Counsel for the plaintiff submitted that, defendant No. 1- though she acquired the suit schedule property under a Will from her father, but she treated these properties as a joint family properties, which is evident from the affidavit filed by defendant No. 1 as per Ex.D26, wherein she has given a genealogical tree of the family and Ex.D28, a registered mortgaged deed, wherein plaintiff and defendant No. 1 together executed a registered mortgage deed of one of the suit schedule property. He further submitted that, defendant No. 1 treated the suit schedule property as a joint family property. She has no right to execute the sale deed or gift deed in favour of defendant Nos. 2 and 3. In so far as registered sale deed is concerned, learned Counsel except showing that, it is a joint family property, he did not advanced any other contention. As per gift deed is concerned, learned Counsel relied on Section 123 of Transfer of Property Act and submitted that, gift deed requires compulsory attestation by two witnesses and further relied on Section 3 of the Transfer of Property Act and referred to the definition of attestation:\n<\/p>\n
 attestation means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.\n<\/p>\n
17. By relying on Section 123 and definition of attestation, learned Counsel submitted that, not only the gift deed is required to be attested by two witnesses, the attesting witness must state that, they have seen the executant putting his signature or thumb mark on the gift deed. In this regard, though attesting witness- PW.1 has been examined in the case, who is none other than defendant No. 2, he has not stated that, he has Page 2219 seen the executrix affixing her signature on the gift deed. He further submitted that, there is no attestation in accordance with the provisions of the Transfer of Property Act r\/w Section 68 of the Evidence Act and submitted that, if document is required to be compulsory attested, at least one of the attested witness is required to be examined to prove the transaction. Relying on the evidence of PW1- the attesting witness of the gift deed, the said witness has not stated as to whether he saw defendant No. 1 affixing her signature on the gift deed and in the absence of the same, the gift is held to be not proved.\n<\/p>\n
18. Learned Counsel for the plaintiff further submitted that, if the gift deed is not valid, there is no transfer of property in favour of defendant No. 3. Since defendant No. 1 has treated the suit schedule property as a joint family property, defendant No. 1 and plaintiff being the only two successors to the said property. He has got half share in the suit schedule property and further submitted that, in view of death of defendant No. 1, plaintiff became the absolute owner of the suit schedule property.\n<\/p>\n
19. He also relied on judgment reported in AIR 2006 SCW 4959 as regards to the pleading in a suit filed by defendant No. 1 and deviating from the said pleading in a compromise petition and submitted that, party cannot be permitted to go beyond the admission made in the pleading. In this regard, he relied on para 34 of the judgment and submitted that; the Apex Court taking note of the amendment of the pleading has held that;\n<\/p>\n
 taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of reference made by the Appropriate Government as also in view of the fact that am industrial adjudicator derives his jurisdiction from the reference only.\n<\/p>\n
20. Relying on this, learned Counsel submitted that, the defendant No. 1 as per Ex.D3 had categorically admitted that, the plaintiff is her adopted son and they are living together, cannot be allowed to deviate from the same in a compromise petition by stating that, the plaintiff is her foster son.\n<\/p>\n
21. He further submitted that, whole event changed immediately after the death of M. Byrashettappa. Defendant No. 2- Munikrishnappa is none other than the brother’s son of M. Byrashettappa and defendant No. 3 is defendant No. 2’s brother in law. In order to get all the properties of defendant No. 1, they got the sale deed and gift deed executed in their favour. Immediately after the execution of the gift deed, the defendant No. 1 challenged both the sale deed as well as gift deed.\n<\/p>\n
22. He submitted that, till the death of M. Byrashettappa at no point of time, neither M. Byrashettappa nor Vishalakshamma had disputed the adoption of the plaintiff. Further, even after the death of M. Byrashettappa, defendant No. 1 treated the plaintiff as a adopted son by filing an affidavit and also jointly executed a mortgage deed in the year 1986. Relying on these events and the documentary evidence, he submitted that, as far as Page 2220 adoption is concerned, it is clearly proved by the plaintiff. All these documents probablise the adoption of the plaintiff.\n<\/p>\n
23. He also relied on the Exs.D121 to 126, medical bills regarding the treatment of Vishalakshamma and receipt of refund of excess amount. He also relied on Ex.D82 just to point out that, the plaintiff had paid the cremation charges of Vishalakshamma and he performed the death ceremony as per Ex.D83. In this regard, the remembrance of the death of Vishalakshamma was also published in news paper as per Ex.D84. He relied on these documents to point out that, even after the death of Vishalakshamma, it is the plaintiff who performed all the last rites of Vishalakshamma and conducted the death ceremony of defendant No. 1. Further relied on Ex.D80, invitation card for the last rites of defendant No. 1. Apart from this, he also relied on several documents of payment of rents by the tenants to the plaintiff and notice issued to the tenants and the compromise petition and submitted that, cumulative effect of all these documents not only proves the adoption, but also exercising the rights by the plaintiff as a adopted son of M. Byrashettappa and Vishalakshamma.\n<\/p>\n
24. Sri Sunderesh, learned Counsel for defendant No. 2 submitted that, to prove the adoption, giving and taking of child is a mandatory and no adoption can be proved without proving the actual giving of the child by the natural parents and taking of the child by the adopted parents. He submitted that, in this case, there is no positive evidence of giving and taking of the plaintiff in adoption by M. Byrashettappa and Vishalakshamma. In this regard, he relied on the judgment reported in AIR 1961 SC 1378. Referring to para 8, learned Counsel submitted that; there should be some overt act of giving and taking of the child in the adoption and without proving the overt act, the adoption cannot be held to be proved. He further submitted that, entire evidence does not show the proof of giving and taking of the child. He also relied on the Hindu Law by Golapchandra Sarkar Sastri and pointed out that, without proving the actual giving and taking of the plaintiff in adoption, the plaintiff cannot claim that, he is adopted son of M. Byrashettappa and Vishalakshamma. In this regard, he also relied on AIR 1954 PEPSU 66. As far as ancient adoption, learned Counsel submitted that, plaintiff was not treated as adopted son nor was recognised as a adopted son. Merely because, his name is referred in the school certificate, will not prove the adoption of the plaintiff. In this regard, he relied on the compromise petition as per Ex.D3 and pointed out that, defendant No. 1 herself has stated that, the plaintiff is a foster son. In this regard, he relied on Ex.P.61, the Will executed by Munilakshamma dated 31.1.1966, wherein the testator has bequeathed some of the properties in favour of the plaintiff and the plaintiff has been shown as foster son of M. Byrashettappa and Vishalakshamma as they had no children. He further relied on Exs.P.53 and 54, voters list, where the plaintiff is shown as son of Narayanaswamy – the natural father and further he relied on Ex.P.55 and pointed out that, the voters list relates to Vishalakshamma, where the name of the plaintiff is not shown Page 2221 in the said list and as regards to the paper publication, Exs.D21 to 25, he submitted that, these are created by plaintiff only to get the properties and they cannot be treated as recognition of adoption of the plaintiff by M. Byrashettappa and Vishalakshamma. He also referred to Exs.D.121 to 126 and submitted that, these are medical bills for having treated defendant No. 1. They do not referred to the name of the plaintiff and the reference of the name of the plaintiff in Ex.D126 is a hand written and it is a fabricated document.\n<\/p>\n
25. He further submitted that, plaintiff himself has admitted in his plaint that, the father of defendant No. 1, bequeathed the property in her favour.\n<\/p>\n
26. The case of the plaintiff that, defendant No. 1 treated those properties as joint family properties is not acceptable. Neither the plaintiff can succeed to the estate of defendant No. 1 nor the plaintiff can claim any right in the said property by survivorship, as these are exclusive properties of defendant No. 1 and they became the ‘Streedhana’ of the defendant No. 1 and they cannot be claimed as joint family properties. In this regard, he submitted that, defendant No. 1 being the absolute owner of the properties, as admitted by the plaintiff. She has every right to execute a registered gift deed as well as the sale deed. Insofar as the sale deed is concerned, learned Counsel submitted that, defendant No. 1 being the owner of the property has right to execute the sale deed, and by virtue of the sale deed, defendant No. 2 has became the absolute owner of item No. 2 of the suit schedule property. As regard to the contention of the learned Counsel for the plaintiff regarding gift deed, learned Counsel submitted that, gift deed is a registered document attested in accordance with the provisions of Section 123 of the Transfer of Property Act and the attesting witness has been examined as PW.1 in the case. He further submitted that, it is Vishalakshamma who can question the gift deed and not the plaintiff. Vishalakshamma is the owner and has execute the gift deed, the plaintiff has no right to question the gift deed. Apart from this, he submitted that, the gift deed is in accordance with the provisions of Section 123 of the Transfer of Property Act and it has been proved by examining the attesting witnesses. Undisputedly, Vishalakshamma has executed the gift deed as well as the sale deed, which is admitted in the compromise petition as per Ex.D3 arrived into between defendant No. 1 and defendant Nos. 2 and 3. The gift and sale is admitted by defendant No. 1. He submitted that, it is not open to the plaintiff to question the sale deed as well as the gift deed.\n<\/p>\n
27. Vishalakshamma has not treated the plaintiff as a adopted son, which fact is clear in her own statement in the compromise petition as per Ex.D3 and further it is also clear from the evidence of DW.1 who is the plaintiff, wherein he has admitted that, Vishalakshamma was under the care of defendant Nos. 2 and 3 and it is defendant Nos. 2 and 3 who were assisting her, as she was not keeping good health and was not capable to take any decision. This fact is admitted by the plaintiff. Fact that, the plaintiff admitted that, he was not residing with defendant No. 1 and the defendant Nos. 2 and 3 were assisting defendant No. 1, which Page 2222 establishes that, plaintiff neither was treated as adopted son nor was taking care of defendant No. 1 or was in possession along with defendant No. 1.\n<\/p>\n
28. He further submitted that, at para 10 of the plaint, plaintiff has admitted that, defendant Nos. 2 and 3 started residing with defendant No. 1 in premises bearing No. 2\/1. Plaintiff has categorically admitted that, defendant No. 1 has executed the sale deed as well as the gift deed. In para 11, of plaint the execution of the gift deed as well as the sale deed are not disputed. The fact that the plaintiff has not proved the suit property as joint family property. Fact that the oral relinquishment is impermissible in law. The plaintiff cannot allege that, defendant No. 1 orally relinquished her right over the suit schedule property. The admission of execution of gift deed and sale deed and the property being exclusive property of defendant No. 1, the plaintiff has not shown as to how he is entitled for the suit schedule properties, which are transferred by way of sale deed as well as the gift deed.\n<\/p>\n
29. Insofar as the adoption is concerned, when the plaintiff has failed to prove the adoption by proving the giving and taking, he cannot claim that, the adoption is proved. The documents clearly prove that, defendant No. 1 did not treat the plaintiff as a adopted son and if the defendants 2 and 3 were taking care of defendant No. 1, which establishes that neither there is a recognition nor there is any overt act by defendant No. 1 to show that, the plaintiff is a adopted son. He further submitted that, the entire evidence relied on by the plaintiff does not prove the requirement of adoption and mere assertion cannot by itself becomes the proof of an adoption unless the factum of adoption is proved.\n<\/p>\n
30. As far as the decision of the Apex Court reported in 1970, learned Counsel submitted that, ancient adoption must be clear and there must be clear evidence. In this case, the plaintiff himself does not give his date of birth. Admittedly, as per Exs.D53 and 54, plaintiff being the eldest son of Narayanaswamy and he claims that he was adopted when he was child of 6 months, clearly shows that, he was the only son at the time of adoption. The only son will not be given in the adoption and there were no circumstances, which required the natural father to give him in adoption to M. Byrashettappa and Vishalakshamma.\n<\/p>\n
31. Sri B.N. Puttalingaiah appearing for the 2nd defendant supported the argument of Sri Sunderesh and relied on the documents Exs.P53 to P55 and submitted that, these are the voters list, showing plaintiff as a son of Narayanaswamy i.e. the natural father. He further relied on Ex.D3, a compromise petition between defendant No. 1 and defendant Nos. 2 and 3 and further relied on Ex.P.51 dated 26.4.1983, the paper publication issued by defendant No. 1 inter alia stating that, the plaintiff is not her adopted son. By relying on these documents, he submitted that, when there is no adoption, the plaintiff has no right to claim the declaration and also to claim right over the suit schedule property. Further the sale deed in favour of defendant No. 2 and the gift deed in favour of defendant No. 3 are admitted by the plaintiff and also by Page 2223 the defendant No. 1. Defendant No. 1 has accepted that, she has executed the gift deed as well as the sale deed in favour of defendant No. 2 and 3. On these submissions, he supported the judgment and decree of the trial Court dismissing the suit of the plaintiff and declaring that, defendant Nos. 2 and 3 are the owners of suit schedule property.\n<\/p>\n
32. In the light of the submissions by both the counsels, the points that arises for consideration are:\n<\/p>\n
i) Whether the plaintiff has proved the adoption?\n<\/p>\n
ii) Whether the plaintiff has proved that the gift deed executed in favour of defendant No. 3 by defendant No. 1 is void?\n<\/p>\n
iii) Whether the plaintiff has proved that the sale deed by defendant No. 1 in favour of defendant No. 2 is void and not binding on him?\n<\/p>\n
iv) Whether the plaintiff has proved that, the suit schedule properties are the joint family properties?\n<\/p>\n
33.  Point No. 1: In terms of the principles of Hindu Law, in order to prove the adoption, the giving and taking of the boy in the adoption is must and there has to be an evidence of some overt act, signified the delivery of the boy through one family to another. This principle of Hindu Law is well accepted by all the Authors. The “Dattahomam” is not mandatory. However, the case of adoption long prior to the filing of the suit i.e. ancient adoption, where the positive oral evidence of proof of giving and taking of the son is dispelled, if the other evidence shows no controversy of the adoption even in the absence of proof of actual giving and taking. In this case, there is no oral evidence showing the actual giving and taking of the plaintiff in adoption. However, the documentary evidence is relied on by the plaintiff to show that, the plaintiff was treated for long time as a adopted son at the time when there was no controversy and a submission is made that, the documentary proof clearly established the adoption of the plaintiff even though there is no positive oral evidence regarding giving and taking of the adopted son.\n<\/p>\n
34. It is in the light of the said submission, it requires to consider the evidence produced by the plaintiff, whether it dispels the positive oral evidence regarding the adoption. The documentary evidence produced by the plaintiff can be categorised in three categories:\n<\/p>\n
i) As to how the plaintiff was treated prior to the death of M. Byrashettappa;\n<\/p>\n
ii) After the death of M. Byrashettappa; and<\/p>\n
iii) How the plaintiff exercised his right in respect of the properties of the adopted family.\n<\/p>\n
35. The earliest document that is available on record is Ex.D7 which is a school leaving certificate of National High School, wherein at Sl. No. 2, the father name of the plaintiff is shown as Byrashettappa M. and the admission of the plaintiff is made during 1956-57. It also shows that, till 1960, plaintiff studied in the said high school. The S.S.L.C. marks statement of the plaintiff Page 2224 is produced at Ex.D8, wherein the name of M. Byrashettappa is shown as the father of the plaintiff. In this regard, from Ex.D12, it appears that, M. Byrashettappa had approached the principal of National College for the admission of the plaintiff and the principal of the said college as per Ex.D12 has replied to M. Byrashettappa on 17.10.1967 inter alia, informing that the admission of the plaintiff to the college is not approved. In the letter it is stated that, plaintiff is a ward of Byrashettappa.\n<\/p>\n
36. Ex.D13 is a wedding invitation card of the plaintiff. Plaintiff’s marriage was fixed on 7.6.1970. Ex.D13 is prepared in the name of Smt. and Sri Yajamana M. Byrasettappa. In the said wedding card, it is mentioned that, the marriage of their son i.e. the plaintiff’s marriage. It seen from Ex.D.15 that a letter dated 6.6.1970 was addressed to M. Byrashettappa by Additional Private Secretary to the President of India inter alia, acknowledging the receipt of marriage invitation card and greetings were conveyed to the new couple, wherein the plaintiff is mentioned as son of M. Byrashettappa. In connection with the marriage of the plaintiff, a paper publication was issued in the newspaper dated 11.6.1976 as per Ex.D16. In the said news paper, plaintiff is described as a son of yajamana M. Byrashettappa. The marriage photo is also published in the said news paper. These documents show that, yejamana M. Byrashettappa treated the plaintiff as a son from the childhood itself.\n<\/p>\n
37. M. Byrashettappa died on 25.3.1983 and the body of M. Byrashettappa was cremated. Ex.D20 is a receipt for having received the amount of Rs. 50\/- towards the cremation charge of M. Byrashettappa from B. Nagaraj i.e. the plaintiff. The death of M. Byrashettappa was also published in the newspaper as per Ex.D22. The death ceremony was fixed on 7.4.1983. In this regard, invitations were sent as per Ex.D21 by the plaintiff. In the said document, he has described as M. Byrashettappa as the father and the same was also published in the news paper as per Ex.D23 and in Ex.D23 the names of the heirs of M. Byrashettappa is mentioned, showing plaintiff, defendant No. 1, plaintiff’s wife and plaintiff’s children. The 1st year death anniversary was observed and the paper publication was issued in remembrance of deceased M. Byrashettappa as per Ex.D24 by the defendant No. 1, plaintiff, plaintiff’s wife and children. Thereafter, Ex.D25 is another remembrance of M. Byrashettappa after seven years, which was also published with the photographs by mentioning plaintiff as son. These documents show that, the plaintiff as a son performed the last rites of M. Byrashettappa and in this regard, he did publish the death of M. Byrashettappa for the public information and this fact remained in a public domain during the said time. No doubt, deceased defendant No. 1 issued a public notice dated 26.4.1983 denying the relationship of plaintiff as her adopted son as well as of deceased M. Byrashettappa and also denied the publication issued by the plaintiff on 6.4.1983 in ‘Kannada Prabha Daily Newspaper’ and stated that the M. Byrashettappa’s brother son performed the last rites of M. Byrashettappa. The plaintiff as per Ex.D118 replied to the same inter alia, stating that, he is the adopted Page 2225 son and he was educated and brought up by adopted parents and his marriage was also performed by them. Krishnappa, the nephew of the deceased M. Byrashettappa is interfering with the said relationship. What appears from the Exs.P51 and D118 is that, immediately after the death of M. Byrashettappa, deceased defendant No. 1 tried to disown the adoption of the plaintiff. However, the further development in the matter would throw light on the relationship of the deceased defendant No. 1 Vishalakshamma with the plaintiff. Immediately thereafter, defendant No. 1 executed a sale deed dated 27.11.1984 in favour of defendant No. 2 and a gift deed dated 24.1.1985 in favour of defendant No. 3. However, deceased defendant No. 1 filed a suit on 21.11.1985 against defendant Nos. 2 and 3 in O.S.No. 3797\/1985 and in the said suit, she reiterated in para 2 that;\n<\/p>\n
 plaintiff’s husband Sri M. Byrashettappa has passed away on 25.3.1983 (Twenty-fifth March, Nineteen eighty-three) leaving behind the plaintiff and their adopted son Sri S. Nagaraj. His adoption having taken place when he was about six months baby. During the life time of the plaintiff’s husband, the plaintiff and their adopted son were living together as joint family members.\n<\/p>\n
38. In the said suit, it is alleged that, defendant Nos. 2 and 3 taking advantage of the differences between herself and her adopted son and with an intention of assisting the plaintiff (defendant No. 1 herein), they joined her and started separate cooking in the house of adopted son for a period of one year. It is alleged, defendant Nos. 2 and 3 took the advantage of the circumstances in order to get the sale deed and gift deed in their favour. In the said suit, the deceased defendant No. 1 seriously challenged the sale deed and gift deed and sought for a decree for declaring the said transaction as void. In the said suit, defendant Nos. 2 and 3 were the defendant Nos. 1 and 2. They were served with suit summons. They appeared and the matter was set down for written statement on 5.12.1986. Thereafter, the matter was adjourned and subsequently a compromise petition dated 16.2.1987 was filed compromising the dispute between defendant No. 1 and defendant Nos. 2 and 3. In the said compromise petition, the plaintiff is described as foster son and not the adopted son.\n<\/p>\n
39. It may be relevant to notice that, during the said period i.e., when the defendant No. 1 filed a suit, defendant No. 1 filed an affidavit on 30th November 1985 as per Ex.D26. In Ex.D26, an affidavit filed by defendant No. 1 for the purpose of availing the loan by mortgaging property item No. 2, the genealogical tree is furnished by her and she has stated that B. Nagaraj is adopted son and K.S. Parvathamma Nagaraj is the daughter-in-law. Thereafter, on 13.2.1986, both deceased defendant No. 1 and the plaintiff executed a registered mortgage deed as per Ex.D28 wherein plaintiff is described as adopted son of Vishalakshamma. These documents clearly show that, though the deceased defendant No. 1 immediately after the demise of her husband did issue a public notice, however, thereafter, she joined the plaintiff in the execution Page 2226 of the registered mortgage deed, filing of affidavit and further in the suit, she describes specifically that, plaintiff as her adopted son and she has also described reason for the execution of the registered sale deed as well as gift deed. But after the mortgage deed was executed during the pendency of the suit, on 16.2.1987 as per Ex.D3, the deceased defendant No. 1 signed the compromise petition by describing the plaintiff as foster son and not as adopted son. In this regard, learned Counsel appearing for the defendant No. 2 had relied on Ex.P61, a Will executed by the mother of deceased defendant No. 1 wherein she described the plaintiff as foster son in the said Will and the properties were bequeathed to the plaintiff. No doubt, the defendant- 1’s mother describes the plaintiff as foster son and even the defendant No. 1 subsequently has said the plaintiff as foster son. The question is, as to whether that by itself would prove that the plaintiff is not adopted son and is a foster son?\n<\/p>\n
40. Undisputedly, plaintiff is treated as son. The document Ex.D1 has come into existence on 31.1.1966 when Byrasettappa was alive and from the correspondence produced in the suit particularly the letter written by the Principal of National College as per Ex.D12 appears that he was quite literate and educated man, that the letter itself is in English and during his life time, the event that has taken place clearly shows that Byrasettappa with full knowledge had stated the plaintiff as adopted son. This is fortified by the pleading of defendant No. 1 as per Ex.D4.\n<\/p>\n
41. Not only defendant No. 1 and Byrasettappa have mentioned the plaintiff as the adopted son, but there are other records, such as Ex.D10, a declaration given by the head of the family namely, Byrasettappa dated 1.1.1982 and Ex.D11, a voters’ list of 1982 show that the plaintiff as a son of Byrasettappa. Till the death of Byrasettappa, there has been no dispute of plaintiff being brought up by both Vishalakshamma as well as Byrasettappa as their son. Even after the death of Byrasettappa, as per Exs.D121 to D126, some of the medical bills, which are produced and have come from the custody of the plaintiff, do reveal that Vishalakshamma, who was admitted to the hospital, was looked after by the plaintiff. Ex.D126 is a bill over which there is an endorsement of the refund of excess amount and the endorsement shows that the amount is refunded to the plaintiff. A contention is raised by the learned Counsel for the defendant that, that is a manipulated one, as the only portion of refund and reference to the plaintiff’s name is handwritten, rest is a typed one. However, it is not in dispute that there was excess amount to be refunded and defendant No. 2 or 3 have not claimed the same, nor have produced any other document to the contrary.\n<\/p>\n
42. Vishalakshamma died on 10.12.1988. In this regard, plaintiff has produced Ex.D82 showing that he has paid the cremation charges of deceased Vishalakshamma and Ex.D83 is a paper publication of death of Vishalakshamma published in Kannada daily newspaper dated 19th December 1988. No doubt, these documents have come into existence after the death of defendant No. 1 and after filing of the suit. However, Page 2227 from the evidence it is clear that there is no other material as regards to the performance of last rites of the deceased defendant No. 1 by any other person. These documents show that, plaintiff as a son, he performed the last rites of defendant No. 1 also. At relevant point of time, when there was no controversy, if the plaintiff is treated as an adopted son by the adopted parents, whether further positive proof is required in respect of adoption, which took place nearly 40 years prior to the suit, no doubt, there are some documents relied by the defendant Nos. 2 and 3 such as Exs.P53, P54- voters’ list of 1992 show the name of the plaintiff as the son of natural father Narayanaswamy and the address is shown as that of the natural parents.\n<\/p>\n
43. From the above evidence, two circumstances are clear, one Byrasettappa accepting and treating the plaintiff as the adopted son all throughout his life time, second, the plaintiff is brought up and educated by Byrasettappa as well as Vishalakshamma. Apart from these documents, series of documents relating to enjoyment of the properties by the plaintiff, such as the eviction of the tenant from the properties belonging to the adopted parents. Settlement of the claim of the tenants, payment of electricity bill, payment of water charges, telephone connections, all these documents establish the living of the plaintiff with Byrasettappa as well as deceased defendant No. 1. Some documents, though reference to the name of plaintiff is not there, show that the plaintiff had purchased the construction material. However, insofar as Court proceedings relating to the filing of H.R.C. as per Exs.D72, D75 do show that the plaintiff has exercised his right as a son of Byrasettappa and Vishalakshamma. Several other documents are also produced showing the enjoyment of the property. Rent receipts are produced as Exs.D133 to 135. In my considered opinion, these documents show that the plaintiff was treated as an adopted son by M. Byrasettappa throughout his life time. Even defendant No. 1 though disputed, however, she has admitted in her pleading that, he is an adopted son. Even in registered mortgage deed, she has shown him as adopted son. In such circumstances, the absence of positive oral evidence to prove the giving and taking adoption of plaintiff at this length of time cannot be disputed. In this regard, it is useful to refer to a decision reported in 1990 Par-I SCC page 677 in the matter of L. Debi Prasad (Dead) By L.RS. v. Smt. Tribeni Devi and Ors. The Apex Court<\/a> while considering the case of adoption, though has held that, positive proof of giving and taking of adopted son is a must, however, in respect of an ancient transaction, has observed:\n<\/p>\n
 (iii) 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 Page 2228 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 pre-determined 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.\n<\/p>\n
The Apex Court has held that in case of ancient adoption, evidence showing that, the boy was treated for long time as an adopted son at the time when there was no controversy is sufficient to prove the adoption, although the evidence of factual of giving and taking is not forthcoming. It is but natural that, in cases of adoption of long time before the filing of the suit, the possibility of getting the oral evidence of the persons witnessed the adoption ceremony or persons, who knew about the giving and taking of the boy, may not be available and in this case, Byrasettappa, who treated and recognized the plaintiff as adopted son during his life time, died in 1983 itself. Though defendant No. 1 denied, however, her subsequent act also show that she did accept the plaintiff as adopted son, which is clear from the plaint averment as per Ex.D4, which also reveal the circumstances under which she executed the sale deed and gift deed and also reveals that there was some difference between the deceased defendant No. 1 and the plaintiff at relevant point of time and that appears to be so, as from the subsequent act of the deceased defendant No. 1 show that she herself filed the suit against defendants-2 and 3, filed affidavit and also jointly executed the mortgage of one of the suit properties. Apart from this, the plaintiff himself has exercised his right as a son. This evidence cannot be brushed aside as the plaintiff could not have exercised his right as foster son, fact that he has all rights of son and was treated as adopted son when there was no controversy. The Apex Court in the similar circumstances, dealing with ancient adoption has held that, absence of evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family; that in the case of a Hindu, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In the absence of direct evidence much Page 2229 value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father’s estate in the matter of enjoyment of the properties. The documentary evidence produced in this case reveals the natural love and affection that the plaintiff received by the adopted parents, enjoyment of the properties of the adopted family and the circumstances all throughout right from his childhood clearly establish that he was not only recognized, but treated as adopted son.\n<\/p>\n
44. One other contention that was raised by the learned Counsel for the defendants-2 and 3 is that, as per Exs.P53 and 54, the plaintiff is the eldest son in the natural family. Plaintiff has pleaded that he was six month’s boy when he was adopted by Byrasettappa and at that time, the plaintiff being the only son to the natural family, he could not have been given in adoption. No doubt, in normal circumstances, the only son may not have been given in adoption. In some cases, son will act for both natural father as well as adopted father in terms of Dwyamushyayam. In this regard, learned Counsel had relied on decision of the Apex Court  in the matter of A. Raghavamma and Anr. v. A. Chenchamma and Anr. At<\/a> para-14, the Apex Court has observed that, ordinarily, the only son is neither given nor taken in adoption as giving of only son would deprive of the natural family of its succession. It cannot be said that, it is not permissible, even the principles of Hindu Law on the adoption does not prohibit the adoption of only son. The circumstance, which is required to be considered here, is the age of the parents at the time of giving their son in adoption. The age of the parents appears that they were young and subsequent development also reveals that they got two more children thereafter. The possibility of having children was not ruled out to treat that the circumstances did not warrant for giving the plaintiff in adoption.\n<\/p>\n
45. The second question as to the execution of the sale deed in favour of defendant No. 2 and the gift deed in favour of defendant No. 3, which are marked as Ex.R24 dated 27.11.1984 and Ex.P65 a gift deed. It is necessary to peruse the pleadings of the plaintiff. Plaintiff himself at para-5 has stated that premises bearing No. 2, 2\/1 and 2\/2 belonged to first defendant’s father i.e. Vishalakshamma’s father and he bequeathed these properties in her favour under a Will dated 24.10.1932 as per Ex.P59. Plaintiff at para-11 admits that the deceased defendant No. 1 signed the sale deed dated 27.11.1984 and the gift deed dated 24.1.1985. In the same para, it is also stated that, one of the witnesses is Sub-Registrar Sri. Renuka Prasad of Doddaballapur, the third defendant who is the brother-in-law of the first defendant is another witness. Further, insofar as gift deed is concerned, it is again stated that first defendant has affixed i.e., Vishalakshamma has affixed her LTM after the alleged attestors had signed the gift deed. One of the witnesses to the said gift deed is none other than the second defendant, who is the brother-in-law of the third defendant. It is also again stated at para-13 Page 2230 that the first defendant has purported to have executed a sale deed and a gift deed in favour of defendants-2 and 3. These pleadings do reveal two things, one, Vishalakshamma acquired this property from her father, second, she did sign the sale deed as well as gift deed and gift deed was attested by two witnesses. The execution of the sale deed and gift deed are admitted by the plaintiff. However, the plaintiff claims that the suit schedule properties are the joint family property as the deceased defendant No. 1 had relinquished her right in the suit schedule property. But from the records, it is clear that the plaintiff has not produced any material to show that the deceased defendant No. 1 has relinquished the suit schedule property in a manner known to law nor the circumstances prove the relinquishment of her property in favour of plaintiff or treating the same as joint family properties of plaintiff and deceased defendant No. 1. If the plaintiff has not proved the properties as joint family properties during the life time of defendant No. 1, plaintiff cannot succeed to the same. Gift as well as sale deed are the transfer of property, they take into effect immediately on their execution in accordance with law. Learned Counsel for the appellant had argued that, gift is required to be attested by minimum two witnesses as per Section 123 of the Transfer of Property Act and attestor must have seen the executor signing the gift deed and he also argued that, though one of the attestors has been examined in conformity with Section 68 of the Evidence Act, but has not stated anything as regard to he having seen the executor signing the gift deed. In this case, the gift deed is executed on 24.1.1985 and admittedly Vishalakshamma, the deceased defendant No. 1 was alive thereafter and she did file a suit challenging the gift deed. However, she entered into compromise in terms of Ex.D3. She did not question the gift deed executed by her in favour of defendant No. 3. When the executor during her life time had accepted the gift deed, when the suit properties belong to her, in my view, the plaintiff having not proved the properties as joint family properties, he cannot even question the validity of the gift deed when the donor and donee have accepted the gift transaction and plaintiff also admits that the defendant No. 1 executed the gift deed and it was attested by two witnesses. So, question as to whether the attestor has seen the executor signing the gift deed is not relevant when there is no dispute. Sale deed and gift deed come into effect immediately after its execution and after having come into existence, the defendant Nos. 2 and 3 have become owner by virtue of sale deed and the gift deed to the extent of properties transferred.\n<\/p>\n
46. Ex.P24 is a sale deed executed by defendant No. 1 in favour of defendant No. 2. Unless the executor of the sale deed alleges that the transaction is void transaction or makes out a case of fraud, undue influence of misrepresentation so as to nullify the transaction, the plaintiff claiming to be the adopted son and the property not being from the adopted family, in the absence of defendant No. 1 challenging the sale deed, the plaintiff cannot maintain a suit, questioning the validity of the sale deed in favour of defendant No. 2 and rightly, the learned Counsel for the plaintiff did not address any serious argument on the question of validity of the sale deed.\n<\/p>\n
Page 2231<\/p>\n
47. From the evidence, it is clear that the plaintiff is an adopted son of M. Byrasettappa and Vishalakshamma – deceased defendant No. 1. Defendant No. 2 has become the owner of the property sold to him under Ex.P24. Defendant No. 3 has become owner of the property under the gift deed. There are three suit schedule properties in this case namely, item Nos. 1, 2 and 3. Item No. 2, premises bearing No. 2\/2 is the subject matter of the gift deed in favour of defendant No. 3 as per Ex.P65. Item No. 3 is concerned, premises bearing No. 2\/1 is the subject matter of sale deed Ex.P24. Item No. 1 is concerned, it is submitted that, though it is a self-acquired property of deceased defendant No. 1, defendant No. 1 being deceased during the pendency of the suit and the plaintiff having succeeded in proving that he is the adopted son of Byrasettappa and Vishalakshamma, after the death of Vishalakshamma, the plaintiff will succeed to the said property i.e., item No. 1 schedule property.\n<\/p>\n
46. The trial court on appreciation of the evidence, has found that the plaintiff has proved that he is the adopted son of Byrasettappa and Vishalakshamma and also found that the suit schedule properties were exclusive properties of defendant No. 1 Vishalakshamma and the sale deed as per Ex.P24 and gift deed as per Ex.P65 are valid and binding on the plaintiff. Insofar as item No. 1 is concerned, though the plaintiff has claimed that the suit schedule properties are joint family properties and failed to prove the same. However, during the pendency of the suit, Vishalakshamma died and it is nobody’s case that Vishalakshamma has bequeathed or transferred the item No. 1 property. In the absence of any other transaction and Byrasettappa and Vishalakshamma having no issues of their own and now the court having found that the plaintiff being adopted son, in my view, the plaintiff would succeed to item No. 1 of the suit schedule property. Accordingly, the judgment and decree of the trial court is modified as under:\n<\/p>\n
49. Plaintiff by virtue of death of defendant No. 1 would succeed to the estate of defendant No. 1 insofar as item No. 1 of the suit schedule property. Defendant No. 2 being the purchaser under Ex.P24 to the item No. 3 is concerned, the suit of the plaintiff as against him fails and is dismissed. Defendant No. 3 claims title under the gift deed Ex.P65 and plaintiff having failed to prove the suit schedule property as joint family property and now having found that the suit schedule properties being the self-acquired properties of Vishalakshamma, the plaintiff’s suit also fails as against defendant No. 3. Hence, the plaintiff is not entitled for any decree insofar as item Nos. 2 and 3. Since the defendant No. 1 died during the pendency of the suit, plaintiff by natural succession, has succeeded to the estate of deceased defendant No. 1 in respect of item No. 1 property.\n<\/p>\n
Accordingly, both R.F.A.Nos. 293\/2003 and 294\/2003 are partly allowed. The judgment and decree in O.S.Nos. 4583\/1988 and 3252\/1987 are modified. Both RFA Cr.Ob.Nos. 2\/2004 and 18\/2003 are dismissed. Both the parties to bear their own costs throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Smt. K.S. Parvathamma W\/O Late B. … vs Sri. M. Munikrishnappa S\/O … on 8 August, 2007 Author: S B Adi Bench: S B Adi JUDGMENT Subhash B. Adi, J. Page 2212 1. R.F.A.No. 294\/2003 is by the legal representatives of the plaintiff in O.S.No. 4583\/1988. R.F.A. Cross Objection No. 18\/2003 is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-75506","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nSmt. K.S. Parvathamma W\/O Late B. ... vs Sri. M. 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