Bench: C Ullal, H N Das

Appellants: Sri Rangappa (since dead reptd. by his L.Rs. Smt. Putta

Boramma W/o. Late Rangappa and Ors.)

Vs.

Respondent: Smt. Channamma W/o. Late Lakkaiah Uruf Guruvaiah

Doddahyda and Ors.

AND

Appellants: Basappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda

(since dead by L.Rs. Devamma W/o. Late Basappa and Ors.)

Vs.

Respondent: Sri Rangappa S/o. Late Lakkaiah Uruf Guruvaiahna Doddahyda

and Ors.

Case Note :

A. HINDU ADOPTION AND MAINTAINCE ACT, 1956-"Dattaka Homa"-Whether

an

essential ingredient under the Act-No.-Section 11 of Hindu Adoption

and Maintaince Act, 1956.

B. ADOPTION-Dattaka Homa not essential-Contemporary documents

containing recital regarding adoption-Whether has to be taken as fact

to stabilise adoption-Yes.

C. EVIDENCE-Civil Case-Recital made in documents at undisputed point

of time-Cannot be ignored-Ignoring the same in not proper.

D. ADOPTION-Vesting and diversting of rights-A right vested goes along

with the child given in adoption and not a right which has not
vested-Sequence of adoption-Divests the right of a Co.parcener in a

family-Adopted child will not have any future right in the natural

family.

R.F.A. 260 of 1994 allowed.

R.F.A. 444 of 1999 dismissed.

Acts/Rules/Orders:

Hindu Adoptions and Maintenance Act, 1956 - Sections 5 to 17; Hindu

Succession Act, 1956; Land Acquisition Act

Facts:-

Appellant in R.F.A. No. 260/1994 is the 1st defendant and respondents

No. 1 to 4 are the plaintiffs and respondents No. 5 to 7, are

defendants No. 2 to 4 before the trial court. Appellant in R.F.A. No.

444/1999 is the 3^rd plaintiff and the respondents are the plaintiffs

No. 1, 2 and 4 and defendants before the trial court In this judgment,

the parties are referred to their status before the trial court

3. Plaintiffs contend that common propositor, Lakkaiah, died leaving

behind his wife, three daughters and two sons as his legal

representatives to succeed to his estate the schedule properties.

Plaintiff No. 1 is the wife, plaintiff No. 2, 4 and defendant No. 2

are the daughters. Plaintiff No. 3 and defendant No. 1 are the sons of
deceased Lakkaiah. The 1st defendant refused to partition and divide

the schedule properties and to put the plaintiffs in separate

possession of their respective share and therefore they filed O.S. No.

75/1990 for partition.

4. Defendants entered appearance before the trial court. Defendant No.

1 is the contesting defendant and filed written statement inter alia

contending that plaintiff No. 3 was given in adoption to their uncle

by name, Rangegowda and therefore he ceased to be the coparcener of

joint family of the 1st defendant. On the demise of propositor,

Lakkaiah, the 1st defendant is the only sole surviving copercener and

succeeded to the schedule properties and therefore he contends that

plaintiffs are not entitled for share in the schedule properties. The

1st defendant further contends that the 1st plaintiff, the wife of

common propositor, Lakkaiah, took her share by way of cash and

jewellery and separated from the joint family. He further contends

that some of the schedule properties are acquired by defendants No. 3

and 4 and they are not available for partition.

Issues raised:

(1) Whether plaintiffs prove that they along with defendants 1 and 2

are members of joint family and suit schedule p properties are their

joint family properties?

(2) Whether 1st defendant proves that he became the sole surviving

coparcener after the death of his father and became the absolute owner

of the entire properties or contended in para-1 of his written

statement?
(3) Whether plaintiffs prove that plaintiff 1, 2 and 4 are entitled to

1/18th share each and 3rd plaintiff is entitled to 7/18th share in the

suit schedule properties?

(4) Whether the 1st defendant proves that 1st plaintiff relinquished

all her rights in the plaint schedule properties as contended in para

1 of his written statement?

(5) Whether 1st defendant proves that the claim of the plaintiffs, if

any, has been barred by principles of adverse possession as contended

in papra 1 of his written statement?

(6) Whether plaintiffs prove that acquisition proceedings initiated by

the 3rd and 4th defendants do not bind their share and share of the

2nd defendant as contended in para 8 of their plaint?

(7) Whether plaintiffs are entitled for partition by metes and bounds

and separate possession of their share as claimed?

(8) To what relief plaintiffs are entitled?

Held:-

Trial court held that defendant No. 1 has failed to prove and

establish that plaintiff No. 3 was given in adoption to Rangegowda

mainly on the ground that there is no pleading and evidence of giving

and taking plaintiff No. 3 in adoption by conducting a ceremony called

'Dattaka Homa'. Though the trial court noticed the registered sale

deed - Ex.D1 and registered settlement deed - Rx.D2, wherein there is

a reference to the adoption of plaintiff No. 3 in favour of Rangegowda

refused to rely upon the two documents on the ground that by consent

of the parties, adoption cannot be created. It is necessary at this

stage to notice the relevant provisions of law governing adoption

among Hindus. Prior to the enactment of Hindu Adoptions and

Maintenance Act, 1956 only boys can be given and taken in adoption and

not the girls. Only husband can give and take a boy in adoption and

not the wife. Any adoption of boy shall be among their own caste and

not an outsider. With regard to ceremony of giving and taking the boy

in adoption there was no uniform performance of 'Datta Homa'. There

was no clarity and certainty with regard to vesting and diverting of

any property of adoptive child resulting in many voluminous

litigations. As an answer to some of these problems, the parliament

enacted the Hindu Adoption and Maintenance Act, 1956 (for short the

'Act')

9. Sections 5 to 17 in Chapter II of the Act deals with Adoption.

Section 6 specifies the requisite of a valid adoption. Section 7

specifies the capacity of a male Hindu and Section 8 specifies the

capacity of female Hindu to take in adoption. Section 9 specifies the

persons capable of giving in adoption. Section 10 specifies persons,

who may be adopted. Section 11 specifies the other condition for a

valid adoption. Proviso to Section 11 of the Act, 1956 specifies that

perform of 'Dattaka Homa' shall not be essential to the validity of

adoption. Thus it is clear that even in the absence of proof of

Dattaka Homa, there can be adoption subject to the satisfaction of

other conditions under Sections 6 to 11 of the Act. Merely because

there is no pleadings and proof relating to Dattaka Homa, it cannot be

said that there is no valid adoption. The reasoning of the trial court

that defendant No. 1 has failed to plead and prove the ceremony of

Dattaka Homa and therefore there is no adoption of plaintiff No. 3 to

Rangegowda, is unsustainable in law.

10. In the instant case, the adoptive father, Rangegowda, executed a

registered settlement deed dated 20.11.1961-Ex.D2 in favour of

plaintiff No. 3. In this registered settlement deed - Ex.D2, plaintiff

No. 3 is described as adopted son of Rangegowda. Plaintiff No. 3 is a

party to this registered settlement deed. Plaintiff No. 3, who is

examined as PW.2, has not disputed the registered settlement deed -

Ex.D2 wherein he was described as adopted son of Rangegowda. Further

on the strength of registered settlement deed - Ex.D2, plaintiff No. 3

sold a portion of property acquired by him under a registered sale

deed dated 16.1.1970 - Ex.D1 in favour of one Sri Rangappa. In this

registered sale deed -Ex.D1, plaintiff No. 3 described himself as

adoptive son of Rangegowda. These two registered documents - Exs.D1

and D2 have come into existence at the earliest point of time when

there was no dispute between the parties on the question of division

of schedule properties. Further, these two documents and the recitals

contained therein are not disputed by any of the parties to the suit.

In addition to these documentary evidence, plaintiff No. 3, who is

examined as PW.2, in his deposition admitted that he was residing some

time with Rangegowda. Further it is admitted that Rangegowda did not

had any children. Trial court though noticed these documentary and

oral evidence on record, committed an error in holding that adoption

of plaintiff No. 3 is not proved and established. This admitted

documentary and oral evidence on record clearly establishes the fact

that plaintiff No. 3 is the adopted son of Rangegowda. On adoption,

plaintiff No. 3 ceased to be the coparcener of joint family of his

natural parents. Therefore, plaintiff No. 3 is not entitled for any

share in the schedule properties belonging to the natural father,

Lakkaiah. It is not the case of plaintiff No. 3 that the schedule

property or any portion of it vested in him prior to his adoption to

Range Gowda. Trial court committed an error in passing the decree

declaring that plaintiff No. 3 is entitled for 7/18th share in the

schedule properties.

11. It is not in dispute that the schedule properties are the

ancestral properties of common propositor, Lakkaiah. Plaintiffs

contend that Lakkaiah died subsequent to the year 1956. Defendant No.

1 contends that his father, Lakkaiah, died in the year 1955. But

defendant No. 1 specifically admits in his evidence deposed on

7.8.1991 that his father, Lakkaiah, died 34 years back. On the basis

of this admission, even according to defendant No. 1, his father,

Lakkaiah, died in the year 1957. Further DW. 2 in his evidence

recorded on 7.8.1991 admits that common propositor, Lakkaiah, died 25

years back. PW. 1 - wife of common propositor, Lakkaiah, in her

deposition admitted that in the year 1959 her husband, Lakkaiah, died.

Except this oral evidence on record, there is no other evidence to

show that Lakkaiah died prior to the year 1955. Therefore, the

available oral evidence on record clearly establishes the fact that

the common propositor, Lakkaiah, died subsequent to coming into force

of Hindu Succession Act, 1956.

12. Admittedly the schedule properties are the ancestral properties of

common propositor, Lakkaiah. Since plaintiff was given in adoption to

Rangegowda, he ceased to be the coparcener of joint family of Lakkaiah

and defendant No. 1 On a notional partition, Lakkaiah is entitled for

half share and defendant No. 1 is entitled for the remaining half

share in the schedule properties. On the demise of Lakkaiah, his half

share in the schedule properties will devolve upon his wife and

children except plaintiff No. 3. On this basis, the shares are to be

worked out between the plaintiffs and defendants.

13. It is not in dispute that defendants No. 3 and 4 acquired a

portion of schedule property under the Land Acquisition Act. Defendant

No. 1 claiming to be the sole surviving coparcener has withdrawn the

compensation awarded by the Land Acquisition Officer for acquiring a

portion of schedule property. Under the impugned judgment and decree,

trial court declared that the respective share holders are entitled to

claim money from defendant No. 1 alone out of the compensation amount

received by him from defendants No. 3 and 4. The grievance of

plaintiff No. 3 in Appeal No. 444/1999 is that he is entitled for the

compensation awarded by the defendants No. 3 and 4, who are the

acquiring Authorities and a liability ought to have been fixed on

them. Since we have held that plaintiff No. 3 is the adopted son of

Rangegowda and ceases to be the member of joint family of common

propositor, Lakkaiah and defendant No. 1, he will not get any share in

the schedule properties and as such, his appeal is liable to be

dismissed. Further in O.S. No. 75/1990, there is no prayer questioning

the acquisition of a portion of schedule properties by defendants No.

3 and 4 nor the payment of compensation to defendant No. 1. In the

absence of any prayer in the suit, it is not permissible under law to

grant relief claimed by plaintiff No. 3 in his R.F.A. No. 444/1999. On

this ground also, the appeal filed by plaintiff No. 3 is liable to be

dismissed

12 Effects of adoption

The assumption that all the ties of child with the family of his or

her birth shall be severed operates only from the day the adoption

takes place and from the day the ties are replaced by those created by

the adoption in the adoptive family.-Kanwaljit Singh v. State of

Haryana 1981 Pun LJ 64.

Adopted girl is conferred an entitlement to succeed the property

within the meaning of s.8 of Hindu Succession Act despite the fact

that the property was owned by the deceased by reason of his

adoption.- Neelawwa v. Shivawwa 1988 (2) HLR 799.

Under the provisions of s.14 of the Hindu Succession Act, widow

becomes an absolute owner, and it is not possible that the child

adopted by her is divesting her of the right which has already been

vested in her.- Dinaji v.Dadde AIR 1990 SC 1153.

Where the property is in absolute terms vested in a person as the last

surviving coparcener a child subsequently adopted cannot divest him of

it .-Krishnabai v. Ananda Sevaram AIR 1981 Bom 240

Catch Words

Admission, Adopted Son, Adoption, Adverse Possession, Ancestral,

Ceremony, Coparcener, Dattaka, Declaration, Estate, Family, Father,

Female, Female Hindu, Given in Adoption, Hindu, Legal Representative,

Maintenance, Members of Joint Family, Natural Parent, Notional

Partition, Partition, Partition by Metes and Bounds, Sole Surviving

Coparcener, Succession, Suit for Partition, Validity of Adoption, Wife

Bibliography

1. • Diwan, Dr. Paras, Hindu Law, 2nd Ed., Orient Publishing Company,

New Delhi, 2004.

2. • Diwan, Paras, Modern Hindu Law, 20th Ed., Allahabad Law Agency,
Allahabad,

3. 2009Mitra on Hindu Law, 1st Ed., Orient Publishing Company, New

Delhi, 2005.

4. • Hindu Laws, Universal‟s, New Delhi, India, 2010

5. • Mayne‟s, Hindu Law & Usage, 12th Ed., Bharat Law House, New
Delhi, 1986.

6. • Mulla, Principles of Hindu Law, 15th Ed., N.M. Tripathi Private

Limited, Bombay,

7. 1986.

8. • Nagpal, Ramesh Chandra, Modern Hindu Law, 2nd Ed., Easter

9. /www.lawyersclubindia.com/forum/Judgments-on-Hindu-Adoptions-And-
Maintenance-Act-1956-5873.asp

10. www.Manupatra.com

11. www.Indiakanoon.com