SHIDDAPPA Vs. CHANNABASAPPA GIRIYAPPA BADAPPANAVAR

JUDGEMENT

(1.) This is a plaintiff's appeal directed against the judgment and decree in CA. No.408 of 1965, made by the learned Civil Judffge at Hubli. The learned Civil Judge confirmed the judgment of dismissal of suit made by the Munsiff and JMFC., Ranebennur, in LC. Suit No.8 of 1963. The material facts, briefly, are as follows: The suit of the appellant was for the relief of partition and separate possession of his share in joint' family properties specified in the plaint schedule. It has been claimed on his behalf that he is the adopted son of Basappa, who was the brother of the first respondent-first defendant, and that there is a deed evidencing such adoption executed and duly registered on 25-6-1938. On behalf of the respondents, the defence is that the adoption is untrue and the deed of adoption is a false and got up document. It is unnecessary to refer to the other pleas and findings relative thereto as this same have not been Challenged before me. On behalf of the appellant, Sri V. Tarakaram, the learned Counsel, urged two contentions. They are:

(2.) On behalf of the respondents, Sri P. Ramachandra Rao, the learned Advocate, submitted by way of reply to the above contentions that tile issues casting the burden on the appellant were clearly in accordance with law and it may be that the onus might later on shift to the respondents. On the second contention, his submission is three-fold: (1) that the contention is being raised tor the first time and must, therefore, be disallowed; (2) that S.16 of the Act would not be applicable to a deed of adoption prior to the coming into force of the Act; and (3) that, in any event, the presumption is amply rebutted by the evidence on record.

(3.) In elaboration of the second of his ententions Sri Tarakaram sub-mitted that S. 16 of the Act enacts a rule of evidence and, therefore, belongs to the realm of procedural law. In the absence of anything to the contrary in the statute itself it is retrospective in effect and thereiore, it cannot be postulated that it would apply only to deeds executed subsequent to coming into force of the Act. His further argument is that the fact that the appellant had failed to prove the factum of adoption as such could not be a ground to hold that such a presumption stood rebutted. The point of the argument is that it was the duty of the respondents to have disproved the adoption once the deed of adoption, Ext. 118, has been held to have been proved, by positive evidence, but not by merely placing reliance on the failure of the appellant to establish his case of factum of adoption. In support of this submission he placed reliance on a decision of a learned Single Judge of the High Court of Punjab and Haryana in Bosdeo Bhardwaj v. Ram Sarup, ILR. (1968) 2 Pun. & Har. 231. and particularly on the following enunciation occurring at page 237 of the above report :