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CASE NO.: Appeal (civil)  2207 of 2007

PETITIONER: S.T. Krishnappa

RESPONDENT: Shivakumar & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.      2207               2007 [Arising out of S.L.P. (C) No. 16366 of 2006]

S.B. SINHA, J.         Leave granted.         Application of the "Dvyamushayana" form of adoption is in question  in this appeal which arises out of a judgment and order dated 29.6.2006  passed by the High Court of Karnataka at Bangalore in Regular First Appeal  No. 1187 of 2003 affirming a judgment and decree dated 26.7.2003 passed  by the Learned XXII City Civil Judge, Bangalore in O.S. No. 4472 of 1991  dismissing the suit for declaration and partition as also separate possession  filed by the appellant herein.         One S.M. Thimadasappa was the owner of the properties.   He and his  wife Smt. Puttamma (original defendant No. 1, since deceased) had a son  known as Krishnappa.  S.M. Thimadasappa had a brother named Sohur  Thimmaiah who was issueless.  Thimadasappa and his wife gave plaintiff,  Krishnappa in adoption to Sohur Thimmaiah in a ceremony held therefor on  14.2.1995.         The deed of adoption admittedly did not contain any stipulation that  the said adoption was in "dvyamushyayana" or in other form.         Appellant claimed partition also in the property of Thimmadasappa.   Thimmadasappa had a daughter Kumari Menaka.  The plaintiff claimed that  he continued to be a coparcener in the family of Thimmadasappa.   A  partition took place on 8.7.1960 in the family of Thimmadasappa, item No. 3  whereof fell in his share. Kamala was the other daughter of Thimmadasappa.    She expired in the year 1982 leaving behind the contesting respondents as  her heirs and legal representatives.   Thimmadasappa executed a Will on or  about 26.12.1981.   He expired in the year 1984.         The short question which arose for consideration in the suit was as to  whether the plaintiff/appellant continued to be a coparcener in the joint  family property of Thimmadasappa and thus became entitled to 2/3 share in  the suit properties.   The learned trial judge framed the following issues:- "1.     Whether the plaintiff proves his right over the suit  schedule properties? 2.      Whether the plaintiff is entitled for 2/3rd share in  the suit schedule properties? 3.      Whether the plaintiff is entitled for the accounts? 4.      What decree or order? 5.      Whether the defendants prove that the court fee  paid is sufficient?"

       On appreciation of the evidence and in particular the fact that  Thimmadasappa had executed a Will in the year 1981, the genuineness or  otherwise whereupon was not questioned by the appellant, the learned Trial  Judge as also the First Appellate Court negatived the appellant’s claim.            Mr. P.S. Narasimha, learned counsel appearing on behalf of the  appellant would, in support of this appeal, submit that the learned Trial

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Judge as also the High Court committed a serious error insofar as it failed to  raise a presumption that the adoption of the appellant by Sohur Thimmaiah  took place in "dvyamushyayana" form as he was the only son of his natural  father.         It is not in dispute that adoption was evidenced by a deed of adoption  dated 15.2.1945.  No other agreement was produced before the Court to  show that both the natural as also adoptive parents had agreed that the  adoption would be in some other form.   Stipulations made in the said deed  of adoption dated 15.2.1945, however, clearly show to the contrary.           No independent witness was also examined to prove that his genetive  parents gave in adoption to Sohur Thimmaiah in the form of  "dvyamushyayana" on the basis of oral agreement or otherwise.  Such an  oral agreement might not have even been admissible in evidence in terms of  Section 92 of the Indian Evidence Act.         What are the requisite ingredients of adoption in the said form came  up for consideration in Rajgopal (Dead) by Lrs. v Kishan Gopal and Another  [(2003) 10 SCC 653, wherein a Division Bench of this Court upon taking  into consideration a large number of decisions stated the law thus; "18.  In every case of absolute dwyamushyayana form  of adoption, there must be an agreement to the effect  that the person given in adoption shall be the son of  both i.e. the natural father as well as the adoptive  father and such an agreement must be proved like any  other fact by the party alleging the same.  See  Laxmipatirao Shrinivas Deshpande v. Venkatesh  Tirmal Deshpande and Mohna Mal v. Mula Mal."         Mr. Narasimha, however, would refer to sub-section (3) of Section  483 of the Principles of Hindu Law by Mulla which reads as under:- "(3) Where a person gives his only son in adoption to  his brother, the adoption must be presumed to be in  the dvyamushyayana form, unless a stipulation is  proved that the adoption was to be in the ordinary  form.   In Bombay, however, it has been held that  there is no such presumption, and that a person  alleging that an adoption was in the dvyamushyayana  form, must prove that there was an agreement to that  effect, even if the person adopted was the only son of  a brother.  But it is not necessary that the adoptive  father and the natural father should be brothers."         No such  presumption can be attached in the instant case as a brother  had not given his only son in adoption to another brother.   It is also not a  where case such a custom was prevalent.  If there existed a custom, the  matter might have been different.         The principle of law stated in the said paragraph of Mulla’s Hindu  Law has been taken into consideration in Rajgopal (supra).   It does not,  thus, advance the case of the appellant.           In Kartar Singh (Minor) through Guardian Bachan Singh v Surjan  Singh (Dead) and Others [A.I.R. 1974 SC 2161] whereto our attention has  been drawn by Mr. Narasimha, a customary adoption was in vogue.    This  Court therein noticed that even according to the customary laws of Punjab,  there was a special custom under which adoption attached to it, all the  consequences which flow from full and formal adoption under Hindu Law.  Customary adoption in Punjab where mere appointment of the heir creates  only a personal relation between the adopter and the adoptee, was held to  have been not proved stating:- "The whole error in the reasoning of the Division  Bench lies in proceeding on the assumption that  Maghi Singh intended merely to appoint an heir  because he referred to custom. But when the  document refers to Maghi Singh taking the appellant  into his lap from his parents and adopting him as his  son, the words "according to custom" can only refer  to the custom of adoption; so would the reference to  custom in two other places in the document.  Maghi  Singh refers to "adopted son" in three places. He

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specifically calls the document "adoption deed".  The  document is to be read as a whole and so reading there  cannot be the least doubt that what Maghi Singh  intended was to make an adoption according to Law  and not merely appoint an heir according to custom  which prevailed before 1956 but had been abolished  by the Hindu Adoptions and Maintenance Act."

       The twist sought to be given that the purported adoption was made  only for the purpose of nominating a heir, was not accepted stating that  when a ceremony was performed, the parties intended to comply with the  requirements of law that for a valid adoption, there must be a giving and  taking.         See also Ujagar Singh v Mst. Jeo [AIR 1959 SC 1041] and His  Highness Maharaja Pratap Singh v Her Highness Maharani Sarojini Devi  and Others [1994 Supp (1) SCC 734]         In view of the finding of fact arrived at by the courts below, we do not  find any merit in this appeal which is dismissed accordingly with costs.   Counsel’s fee assessed at Rs. 10,000/-.