PARVATHAMMA Vs. SHIVAKUMAR @ SHIVANNA

JUDGEMENT

(1.) This appeal by the plaintiff in O.S.No.277/1989 on the file of the then Principal Munsiff and JMFC, Tumkur is directed against the divergent judgment dated 29.03.2006 passed by the Principal District Judge, Tumkur in R.A.No.514/2004 allowing the said appeal filed by the respondent-defendants by setting aside the judgment and decree dated 13.03.1997, passed by the Trial Court in the aforesaid suit decreeing the said suit and consequently, dismissing the suit filed by her for declaration.

(2.) During the course of this judgment, the parties herein would be referred to with reference to their ranking in the trial Court.

(3.) Plaintiff filed the suit in O.S.No.277/1989 for the reliefs that the first defendant is not the adopted son of the plaintiff and her deceased husband Veeranna, as the adoption itself is invalid and consequently, to cancel the adoption deed dated 27.05.1987, registered as document No.30/87-88 in Book No.4, Volume 34 at Page 1, in the office of Sub-Registrar, Tumkur and to intimate the office of Registrar about the cancellation. The plaintiff inter alia contended that she and defendant No.2 are the sisters, while defendant No.1 is the natural son of defendant No.2; that the plaintiff and her husband Veeranna owned a house property in Hariyappanahalli and also landed properties in Bramhasandra Village as well as Katenahalli Village of Tumkur Taluk; that the plaintiff and her deceased husband had only one son who died unmarried during the year 1987 at the age of 18 or 19 years; that when the plaintiff and her husband were in mental agony on account of the loss of their son, one B.C.Adveshaiah and the defendants came to her and her husband requesting them to take defendant No.1 as an assistant to the family of the plaintiff and her husband; that the plaintiff and her husband were illiterates, as such, did not know how to read and write; that taking advantage of the circumstance that the plaintiff and her husband were in deep sorrow as the result of the untimely death of their son, the said B.C.Adveshaiah got a document executed by the plaintiff and her husband alleging that it is a document to help the plaintiff and her husband by defendant No.1; that the defendant No.1 with his wife used to reside with the plaintiff and her husband; that during January 1989, the defendant No.1 commanded the plaintiff and her husband to hand over the management of the family to him on the ground that he is their adopted son and that the adoption is evidenced by a registered adoption deed dated 27.05.1987; that the plaintiff and her husband being innocent and illiterate got the contents of deed read over and found that it was an adoption deed, which has come into existence fraudulently at the instance of the said B.C.Adveshaiah, who is shown to be one of the attesters of the document; that since as on the date of the alleged adoption of defendant No.1, he was aged more than 17 years, he could not have been adopted in view of Section 10 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the Act'); that he could not have also been adopted by the plaintiff and her husband prior to 1987 as by that date the plaintiff had a son who died at the age of 18 or 19 years during 1987, as such, the alleged adoption of defendant No.1 is invalid and therefore, it is liable to be cancelled; that no rights have been derived by defendant No.1 as a family member of the plaintiff and her husband pursuant to the alleged adoption; that no adoption ceremony was conducted either on the date of the alleged adoption deed or prior to it; that subsequent to January 1989, defendant No.1 taking a hostile view against the plaintiff and her husband murdered the plaintiff's husband on 24.09.1989 in his paddy thrashing floor situated in their land at Bramhasandra Village and in connection with the said case, defendant No.1 is in judicial custody; that the followers of defendant No.1 including his mother6 defendant No.2 are now trying to interfere with plaintiff's peaceful possession and enjoyment of the assets left behind by her husband asserting that defendant No.1 has succeeded to the properties under the adoption deed. Therefore, it has become necessary for the plaintiff to seek relief of declaration that the defendant No.1 is not her adopted son and for the cancellation of the alleged adoption deed.