Case: Eramma &amp; Others Vs. Muddappa

Muddappa who was the natural born son of Ganga Gowda (Jr.) and his second wife Ramamma (defendant No. 2) and according to him, was adopted by Eramma (Sr.) as a son to her deceased husband Chenne Gowda (Sr.). The fact as well as the validity of the adoption were denied by the defendant Eramma (Jr.) who was defendant No. 5 to the suit and by her brothers Purade Gowda and Nanjunde Gowda who were defendants 6 and 7 to the suit being donees from her of property belonging to the family. The relationship between the parties to the suit would be apparent from the following genealogy which is set out in the plaint:Ganga Gowda (Senior)It iscommon ground that Channe Gowda (Sr.) died sometime in the year 1911 leaving behind him his widow Eramma. (Sr.) but without leaving any male issue.It issaid that he had left two daughters, one of whom died shortly after his death but the other probably is still alive. According to the plaintiff he was adopted by Eramma (Sr.) on September 22, 1950. But the deed of adoption which was executed on that very day was registered on October 31, 1950. After the adoption, however, Eramma (Jr.) the 5th defendant executed a deed of gift in favour of her brothers Purande Gowda and Nanjunda Gowda, defendants 6 and 7, on September 28, 1950 whereunder she conveyed the joint family property which at family partition in the year 1940 had been allotted to her share. The plaintiff being a minor, instituted a suit on December 2, 1950 for a declaration of his status as a validly adopted son of the deceased Channe Gowda (Sr.) through his next friend, his adoptive mother Eramma (Sr.). The plaint alleged that even though several demands were made to deliver possession of half of the joint family property to which the plaintiff was entitled, the defendants did not deliver it to him. He, therefore, claimed a partition of the joint family property, possession of his half share therein and mesne profits2. The suit was resisted by defendants 5, 6 and 7 but not by the other defendants who, it may be mentioned, are the other members of the family. It will be seen from the genealogy that the plaintiff Muddappa is no stranger. He is a son of Gange Gowda (Jr.), the elder son of Shive Gowda. Shive Gowda was the elder brother of Channe Gowda (Sr.) Eramma (Jr.) is the widow of Shivaganga Gowda who was the second son of Shive Gowda. The only other male members of the family existing at the date of suit were Muddappa and his natural brother Sivanna defendant No. 3.The former claimed half share in the family property.According to the contesting defendants, however, no adoption at all took place on September 22, 1950, that the adoption deed was antedated, that in any case Eramma (Sr.) had no authority to make the adoption, that even if the fact as well as the validity of the adoption is found in favour of the plaintiff the adoptive mother was divested of her interest in the family property by reason of a partition which took place in the year 1940 during the lifetime of Gange Gowda (Jr.).

Reasoning: This last contention, however, was not raised before the High Court and we have not permitted it to be raised in the appeal before usThis contention, however was not persisted in for the obvious reason that it is plainly unsustainable3. In so far as the fact of adoption is concerned there is ample evidence. In the first place there is the evidence of Eramma (Sr.) herself. In addition, there is the evidence of Sidda Gowda, P. W. 1, Chaluve Gowda, P. W. 2, Shivappa, P. W. 3, and Patil Nanjude Gowda, P. W. 4. They have vividly described what was done on that occasion. The evidence of all of them proves giving and taking which is the essence of adoption. In addition, there is the evidence of P. W. 2 Chaluve Gowda, scribe to the adoption deed. Their evidence reads natural and has been accepted as true by the High CourtAdoption after all is a family affair and the most natural witnesses would ordinarily be members of the family. In so far as the scribe is concerned, he has given good reasons for being present at the time of adoption and for scribing the deed. The adoption deed itself was executed contemporaneously with the adoption and thus furnishes evidence of the adoption. We have been taken through the evidence of these witnesses and there is no reason for us to disagree with the High Court as to the credibility of the witnesses examined on behalf of the plaintiff. Moreover the adoptive mother herself is alive and has sworn to the fact of adoption. By reason of the adoption it is she who has been divested of her interest in the property. It was, therefore, not in her interest to depose falsely as to the fact of adoption if it had not in fact taken place5. It seems to us that there is no substance in the argument of learned counsel. A bare look atn (1) of S. 9 shows that it raises a presumption as to the right of a widow to make an adoption to her husband. Ordinarily this presumption can be rebutted by establishing that the husband had expressly prohibited her from making an adoption. Such a prohibition could be established either by direct evidence or by circumstantial evidence. Can it be said that from the four circumstances relied upon by learned counsel that it is possible for any court to draw a reasonable conclusion to the effect that the husband of Eramma (Sr.) had expressly prohibited her from adopting? The strongest circumstances upon which reliance is placed by learned counsel is the long delay in making the adoption. This delay is explicable by reason of the fact that Eramma was in her twenties when her husband died and it was natural that at such an early age she would not take the risk of divesting herself of her interest in the property by making an adoption and leave herself at the mercy of the adopted son. Later the Hindu Law Womens Rights Act came into force under S. 8 of which the widow of a deceased coparcener belonging to the joint Hindu family was given a right to share in the family property. That being the position it is no wonder that Eramma was in no hurry to make an adoption. As regards the second circumstances it is sufficient to say that the real object behind her adoption is the belief of the Hindu community in general that unless there is a son to offer oblations to the deceased ancestors their souls will not reach the higher regions and may even sink into hell. The mere existence of a daughter is not sufficient to save the souls of ancestors and that is why a sonless Hindu makes an adoption of a son even though he may have a number of daughters. As regards the next two circumstances we do not see any relevance at all. These circumstances were pressed in aid by learned counsel apparently upon an error as to the true legal position. The law as it stood in Mysore at the relevant time did not require a widow to proclaim to anyone the she had an authority to adopt a son to her husband. The law on the other hand was that she could make an adoption unless she was expressly prohibited from doing so. The circumstances upon which reliance was placed by learned counsel do not help thes in discharging the onus cast upon them by law of establishing a prohibition to the widow from making an adoption.