Dyavappa Gowda Vs Smt Shivalingamma

SMT. SHIVALINGAMMA W/O LATE ERAPPA KAVALERA AGED ABOUT 87 YEARS AGRICULTURIST R/O NEERALAGI VILLAGE ANAVATTI HOBLI, SORABA TALUK SHIMOGA DISTRICT-577 429. REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND SON SRI. K. NAGARAJA S/O ERAPPA KAVALERA AGED ABOUT 55 YEARS PERMANENT R/O NEERALAGI VILLAGE ANAVATTI HOBLI

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SORABA TALUK SHIMOGGA DISTRICT-577429

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…RESPONDENT

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(BY SRI. P.N. HARISH, ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 01.09.2015 PASSED IN R.A.NO. 7/2008 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, SHIVAMOGGA, ALLOWING THE APPEAL AND DISMISSING THE JUDGEMENT AND DECREE DATED 30.11.2007 PASSED IN OS NO.11/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & J.M.F.C, SORAB.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 01.09.2015 passed by the learned III Additional District and Sessions Judge, Shivamogga in R A No. 7/2008 setting aside the judgment and decree dated 30.11.2007 passed in O.S.No.11/2007 by the learned Civil Judge ( Sr. Dn) and JMFC, Sorab.

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For convenience, the Parties are referred to, based on their rankings before the trial court. The

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appellant was the plaintiff, and the respondent was Defendant No. 2.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the Defendants seeking the relief of a declaration, and consequential relief of an injunction. It is the case of the plaintiff that Defendant No.1’s husband, K P Dyavappa Gowda, before his death, had authorized Defendant No.1 to take a son in adoption, i.e., the plaintiff’s father, namely, Channabasappa Gowda. It is contended that, on 25.09.1939, Defendant No. 1 adopted Channabasappa Gowda i.e., the plaintiff’s father and the adoption deed was registered. It is contended that, pursuant to the adoption, the plaintiff’s father and Defendant No.1 were enjoying the suit properties, till his death on 13.06.87. After the death of the plaintiff’s father, the plaintiff’s mother, sisters of the plaintiff and the plaintiff are residing with Defendant No.1 in a joint family. It is contended that, all the suit properties are the

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ancestral properties of K P Dyavappa Gowda, and the said properties are undivided joint family properties of the plaintiff. After the death of the plaintiff’s father, due to misunderstandings the plaintiff and Defendant No.1 started to reside separately by making family

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arrangements.

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3.1. It is contended that the plaintiff’s father was cultivating the suit properties, and was giving money and food grains to Defendant No.1. The suit properties are standing in the name of Defendant No.1, and no partition is effected between the plaintiff and Defendant No.1. It is contended that, defendant No.1 was suffering from diabetes and she was mentally and physically weak. Taking advantage of Defendant No.1's ill health, Defendant No.2 got executed the sale deed on 09.01.1997 without any sale consideration regarding the land in Sy.No. 9 measuring 4 acres, 7 guntas. The sale deed is not binding on the plaintiff’s share. Defendant No.2 has no right, interest or title over the said suit property. Defendant No.2

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tried to dispossess the plaintiff from the said suit property. Hence, a cause of action arises for the plaintiff to file a suit for declaration and injunction. Accordingly, prays to decree the suit.

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3.2. Defendant No.1 filed a written statement

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denying the plaint averments. It is contended that Defendant No.1's husband has expired, and she is a widow. Defendant No.1's husband, before his death, had effected a partition regarding the suit properties. Defendant No.1 is the only heir of deceased K P Dyavappa Gowda, she was the absolute owner of the suit schedule properties and she was paying the tax. It is denied that the plaintiff’s father is her adopted son and contended that, plaintiff’s father is not taken in adoption since he is the brother of defendant No.1. It is contended that the plaintiff’s father has not acted upon the adoption deed; he has no right, title or interest over the suit properties. It is contended that Defendant No 1, to meet her personal and

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agricultural expenses, had sold the land in Sy No 9 to Defendant No 2. Accordingly, prays to dismiss the suit.

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3.3. Defendant No.2 filed a written statement

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denying the plaint averments and contended that she is a bonafide purchaser for valuable consideration without any notice. Accordingly, prays to dismiss the suit.

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3.4. Based on the aforesaid pleadings, the trial court framed the following issues:

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1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of joint family consists of himself and defendant No. 1?

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2. Whether the 1st defendant proves that the suit schedule properties are the self-acquired properties of late K P Dyavappa?

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3. Whether the plaintiff proves that the sale deed dated 09.01.1997 executed by defendant No. 1 in favour of defendant No. 2 is nominal and without consideration?

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4. Whether the plaintiff proves that the first defendant was taken the father of the plaintiff by name Channabasappa Gowda in adoption on 25. 09. 1939?

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5. Whether the second defendant proves that he is a bonafide purchaser for value of the schedule item no. 1 property?

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6. Whether the plaintiff is entitled the relief of declaration and injunction?

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7. To what decree or order?

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3.5. To substantiate his case, the plaintiff examined himself as PW 1, and marked 33 documents as Ex P 1 to P

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In rebuttal, the Defendants have examined 3 witnesses as DW 1 to DW 3, and marked 20 documents as Ex D 1 to Ex D 20.

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3.6. The trial court, after recording the evidence, hearing on both sides, and on assessment of verbal and documentary evidence, answered issue no 1 and 3 in the affirmative, issue no 2 and 5 in the negative, issue no 4 does not survive, issue no 6 in partly affirmative regarding

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item No.1, and issue no 7 as per the final order. The suit of the plaintiff was partly decreed vide judgment dated 30.11.2007. The trial court granted a permanent injunction restraining Defendant No 2 from dispossessing the plaintiff regarding suit item No.1 i.e., the land in Sy No 9. The plaintiff's prayer regarding suit item Nos. 2 to 9 was rejected.

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3.7. Defendant No.2, aggrieved by the judgment

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and decree passed by the trial court, preferred an appeal in R.A. No. 07/2008 on the file of III Additional District Judge, Shivamogga. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1. Whether the appellant proves that she is the bonafide purchaser of item no. 1 in Sy No. 9 of the suit schedule property?

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2. Whether the appellant proves that the judgment and decree passed in OS 11/2007 dated 30/11/2007 by the Civil Judge ( Sr. Dn.) and JMFC, Sorab, is erroneous,

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capricious and require interference at the hands of the appellate court?

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3. What order?

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3.8. The First Appellate Court, on hearing both

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sides, and on reassessment of verbal and documentary evidence, answered Points no.1 and 2 in the affirmative, and point No 3 as per the final order. The First Appellate Court allowed the appeal vide judgment dated 01.09.2015 and the judgment and decree passed by the trial court in O.S.No.11/2007 dated 30.11.2007 was set aside. Consequently, the suit against Defendant No 2 was dismissed. The plaintiff, aggrieved by the judgment and decree passed by the first appellate Court in R.A.No.7/2008, has preferred this Regular Second Appeal.

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Heard the arguments of the learned counsel for the parties.

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Learned counsel for the plaintiff submits that

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the First Appellate Court failed to consider that, the trial Court has given a finding by holding that the plaintiff’s

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father Sri. Channabasappa Gowda was the adopted son of defendant No.1 as per the registered adoption deed dated 25.09.1939 and he was the absolute owner of the suit schedule item No.1 property. He submits that the defendant No.1 had no right to transfer item No.1 of the suit schedule property. He submits that defendant No.2 has not entered the witness box. On the other hand, she examined her son who was her power of attorney. Hence, evidence of power of attorney holder of defendant No.2 has no consequence. The First Appellate Court committed an error in passing the impugned judgment. He submits that the impugned judgment and decree passed by the First Appellate Court is arbitrary, perverse and erroneous. Hence, pray to allow the regular second appeal.

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Per contra , learned counsel for the defendant supports the impugned judgement passed by the First Appellate Court, and accordingly, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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This Court, on 25.06.2018, admitted the appeal

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to consider the following substantial question of law :

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1) After having concluded that defendant No.2 being a third party, she cannot question the adoption deed as between the plaintiff and first defendant, whether the first appellate Court erred in treating the second defendant as a bona fide purchaser?

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1. Whether the lower Appellate Court is justified in overlooking the admission made by the second defendant during her crossexamination that she did not make enquiries before purchasing the suit schedule property?

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9. Reg.Substantial question of law Nos.1 and 2 :

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Substantial questions of law 1 and 2 are interlinked

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with each other. Hence, they are taken for common discussion to avoid repetition of facts.

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Defendant No.1 has taken a defence in the written statement that, the plaintiff’s father i.e., Channabasappa Gowda is not an adopted son of defendant No.1. The

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plaintiff has no right, title or interest over the suit schedule property, and the plaintiff’s father has not acted upon the adoption deed. Defendant No.1, being the alleged adopted mother of the plaintiff’s father, herself has denied the adoption in the written statement. Though, defendant No.1 filed a written statement, she did not enter the witness box. The plaintiff, to prove the adoption, the plaintiff, except oral testimony of PW.1, has not examined any witnesses who have witnessed the adoption of the plaintiff’s father by defendant No.1 and her husband. Before filing this suit, one Ratnamma, Sulochanamma, i.e., plaintiff’s sisters, filed a suit in O.S.No.71/1996 seeking a partition and separate possession claiming their shares in the suit schedule property. A compromise petition was filed in the said suit, and the compromise decree was drawn. A copy of the compromise decree is marked as Ex.P32. The said compromise decree was drawn on 13.07.2001. The plaintiff and defendants in the said suit were well aware of the pendency of the suit in O.S.No.11/2007, wherein defendant No.1 was a party to

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the said proceedings. Defendant No.1, without disclosing the pendency of the instant suit, has entered into a compromise in O.S.No.71/1996, wherein she has admitted that the plaintiff’s father is the adopted son.

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Admittedly, in the instant case, defendant No.1 filed a written statement contending that defendant No.1 never took the plaintiff’s father in adoption. However, the plaintiff has produced Ex.P33 i.e., a registered adoption deed, which discloses that the plaintiff’s father was adopted by defendant No.1. The trial Court considering Ex.P33, has rightly held that the plaintiff’s father is the adopted son of defendant No.1. Defendant No.2, being a stranger to the plaintiff’s family, has no right to question the adoption deed, as defendant No.2 is not a party to the adoption deed. She is a stranger to the family of the plaintiff and defendant No.1 cannot challenge the adoption. Further, in view of the law laid down by this Court in the case of VEERABHADRAYYA R HIREMATH AND OTHERS VS. IRAYYA A.F. BASAYYA HIREMATH reported in

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ILR 2006 KAR 1740 Hon’ble Apex Court, the third party cannot challenge the adoption deed, and further, Ex.P33 dated 29.05.1939, is a 30 years old document, and there is a presumption regarding execution of document i.e., signature attestation etc., in other words its genuiness.

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Section 90 of the Indian Evidence Act is founded on necessity, and convenience because, it is extremely difficult and sometimes not possible to lead evidence to prove handwriting or signature or execution of an old document after the lapse of 30 years. To obviate such difficulty or improbabilities, and to prove the execution of an old document, section 90 has been incorporated in the Evidence Act of 1872, which does away

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with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the documents in question are produced from the proper custody. It is the discretion of the Court to accept the presumption shown in Section 90 of the Indian Evidence Act. However, there is no manner of doubt that the judicial

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discretion under Section 90 should not be exercised

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arbitrarily, and without being informed of the reasons.

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As the trial court has rightly held that the plaintiff’s father is the adopted son of defendant No.1. Defendant No.2 being a stranger to the family of the plaintiff and defendant No.1 cannot question the validity of the adoption. The trial court has partly decreed the suit, and granted a decree for a permanent injunction. The plaintiff has sought a relief of declaration to declare that the suit schedule properties are the joint family properties of the plaintiff and defendant No.1. The trial court did not grant a relief of declaration. Defendant No.2, aggrieved by the judgment and decree passed by the trial court in O.S.No.11/2007, preferred an appeal in R.A.No.7/2008 on the file of learned III Additional District Judge, Shivamogga.

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After the death of K.P.Dyavappa Gowda, defendant No.1 succeeded to the suit schedule properties. She was the sole surviving wife, and became the lawful

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and absolute owner of the suit schedule properties. By Section 14 of the Hindu Succession Act, 1956, and the Mysore Hindu Law Women Rights Act, 1933, defendant No.1 would be the sole owner of the suit properties. She can deal with the said properties in the manner in which she likes. The First Appellate Court, considering the provision of Section 14 of the Hindu Succession Act, 1956 and the Mysore Hindu Law Women Rights Act, 1933, held that she became the absolute owner of the suit schedule properties, and she has every right to deal with the properties. Further, the First Appellate Court considering the ratio laid down by the Hon’ble Apex Court in SALEKH CHAND (DEAD) BY LRS VS. SATHYA GUPTA AND ORS . reported in ( 2008) 2 CURRENT CIVIL CASES 604 SC, LAKSHMIBAI (DEAD) THR. LRS AND ANOTHER VS. BHAGWANTBUVA (DEAD) BY LRS AND ORS. reported in 2013 (4) KCCR SN 380 (SC) , the judgments of this court in the case of GOVINDA VS. CHIMABAI AND OTHERS reported in AIR 1968 MYSORE 309 , wherein it is held that “mere factum of deed of adoption has been registered cannot be

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taken as evidence of proof of adoption. The factum of adoption has to be proved by oral evidence of the giving and taking of the boy, and the necessary ceremonies, where they are necessary to be performed”.

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PW.1, in the course of cross-examination deposed that he is cultivating the suit schedule properties and giving maintenance to defendant No.1 and providing food grains to defendant No.1 and admitted that there is no document to show that he was giving food grains to defendant No.1 and he was staying with defendant No.1 and further admitted that he has not produced any evidence to establish that he and his father were cultivating item No.1 of the suit schedule property. There is recital in compromise decree that, defendant No.1 executed the registered sale deed in favour of defendant No.2 on 09.01.1997 regarding item No.1 property, and she has also executed the registered sale deed in favour of Ganapathappa Jedgedi dated 23.09.1988 and the said sale deed was challenged in O.S.Nos.12/1997 and 41/1999.

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The plaintiff’s case is that the sale deed executed by defendant No.1 in favour of defendant No.2 is a nominal one. From the perusal of the recital of the registered sale deed executed by defendant No.1 in favour of defendant No.2, it does not disclose that the said sale is nominal. Further, the plaintiff did not challenge the dismissal of the suit for declaration. The said finding has attained finality. The trial court granted a decree for a permanent injunction without considering the recital of the registered sale deed, regarding the delivery of the possession. The trial court committed an error in granting a relief of decree for permanent injunction. Though during the course of cross-examination, DW.1 admitted that defendant No.2 had not made any enquiry before purchasing the suit schedule property. However, the First Appellate Court has held that defendant No.1 has become absolute owner by Section 14 of the Hindu Succession Act, 1956 and Mysore Hindu Law Women Rights Act, 1933. Though DW.1 gave admission during the course of crossexamination, admittedly, the plaintiff has filed a suit for

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declaration and permanent injunction. It is well settled that the plaintiff must establish his case independently, and not on the weakness of the case of the defendant. The Hon’ble Apex Court in the case of JAGDISH PRASAD PATEL (D) VS. SHIVNATH reported in 2019 (6) SCC 82 ,

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held in para 41, which reads as follows:

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In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffsrespondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269, it was held as under:-

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“15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a

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declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.”

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Hence, she became the absolute owner of the

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suit schedule property in item No.1, and executed the registered sale deed in favour of defendant No.2. The First Appellate Court has rightly passed the impugned judgment. In view of the above discussion, I answer substantial question No.1 partly in the affirmative and substantial question No.2 in the affirmative.

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