CBELUVE GOWDA Vs. MADE GOWDA

JUDGEMENT

(1.) The only question of law which may be considered as arising for consideration in this second appeal is whether the Courts below are correct in concluding that the defendants had proved valid adoption of the plaintiff into the family of Siddegowda, their uncle?

(2.) The plaintiffs suit was for partition andseparate possession of the suit movable and immovable properties on the plea that the defendants and he were natural brothers belonging to an undivided joint Hindu family. The defendants resisted the suit inter alia on the ground that the plaintiff had been given away in adoption to their uncle Siddegowda when he was only six months old as the said Siddegowda did not have any issues though married. On such plea the trial Court naturally cast the burden on the defendants to prove the adoption.

(3.) That there was no deed of adoption is not in dispute. But then the requirement of an instrument in writing to create a valid adoption is not. a must. If there is one and it is registered, certain presumptions follow in terms of Section 16 of the Hindu Adoption and Maintenance Act, 1956. But, whether that Act and the provisions therein are attracted to the facts of the case on hand itself is a matter in doubt as the age of the plaintiff is not disclosed in the cause title. D.W. 1 in his evidence has spoken about the adoption. That oral testimony was corroborated by Cheluvegowda. D.W. I also got marked as documents i.e., Exhibits Dl and D2. Exhibit D2 was a deed of mortgage executed by the defendants .in favour of Siddegowda the alleged adoptive father of the plaintiff, of certain immovable properties. That was redeemed. At the time of redemption, endorsement of discharge was signed by the wife of Siddegowda (adoptive mother of the plaintiff as alleged) and the plaintiff. Admittedly, the plaintiff was not an executant as a mortgagor of the properties belonging to the defendants which normally would require the plaintiff to join in the execution if he had not left the family and therefore had no right to create a mortgage in favour of other persons in that property. Coupled with the fact that he signed the discharge as a mortgagee cannot be explained away. In addition to Ex. Dl, an invitation to the marriage of the plaintiffs daughter shows that the plaintiff is described as son of Siddegowda. That cannot be said to be a printer's devil and explained away. In the absence of any written instrument, oral evidence admissible, coupled with the documentary evidence admitted in evidence should be appreciated which the Courts below have done and come to the conclusion that there was a valid adoption and it had been proved.