Holding

The Supreme Court held that the adoption was not presumed to be in dvyamushyayana form and the appellant could not be treated as a coparcener in his natural father's property.

Summary

The case concerned whether a son adopted by his father's brother under a deed that did not specify the dvyamushyayana form could be presumed to be such, thereby preserving his status as a coparcener in his natural father's joint family property. The appellant argued that Section 483(3) of Mulla's Principles of Hindu Law creates a presumption of dvyamushyayana adoption when a brother gives his only son to another brother. The Supreme Court held that the presumption does not arise without an express agreement and that oral evidence of such an agreement is inadmissible under Section 92 of the Indian Evidence Act. Accordingly, the adoption was treated as an ordinary adoption, the appellant was not a coparcener, and his claim to a two‑thirds share in the father's property was rejected. The appeal was dismissed with costs.

Issues considered

Whether the adoption of the appellant by his father's brother was in the dvyamushyayana form.
Whether Section 483(3) of Mulla's Principles of Hindu Law creates a presumption of dvyamushyayana adoption when a brother gives his only son to another brother.
Whether oral evidence of an agreement to adopt in dvyamushyayana form is admissible under Section 92 of the Indian Evidence Act.
Whether the appellant retained coparcenary rights in his natural father's joint family property.

Legislation cited

Indian Evidence Act, 1872s. 92

Subjects

adoptiondvyamushyayanacoparcenaryHindu lawpresumptionjoint familypartitionwillevidenceIndian Evidence Act

Judgment

A S.T. KRISHNAPPA
v. \
SHIVAKUMAR AND ORS.

APRIL 27, 2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Adoption:
t .,
Customary law-Dvynamushyayana form-Appellant-Son given in
c adoption to issueless brother-Appellant claiming coparcenary share in
property of natural father on the ground that adoption was in
Dvyamushyayana form-Held, No such indication in adoption deed-Hence
presumption cannot be raised that adoption was in Dvyamushyayana form. '
'T' had a brother 'S' who was issueless. T and his wife gave their son,
D
appellant in adoption to 'S' in a ceremony. The deed of adoption did not contain
any stipulation that the said adoption was in 'dvyamushyayana." or in other
form. ...,.
'T' had executed a Will of his property. Appellant claimed partition in
E the property of 'T' on the ground that he continued to be a coparcener in the
family of 'T'. 'M' and 'K' are daughters of 'T'. 'K' expired in the year 1982
having behind the contesting respondents as her heirs and legal
representatives.

On appreciation of the evidence and in particular the fact that 'T' had
F executed a Will, the Trial Judge as also the First Appellate Court negatived
the appellant's claim.

In appeal to this Court, appellant contended that the Courts below
committed a serious error insofar as it failed to raise a presumption that the
adoption of the appellant by 'S' took place in "dvyamushyayana" form as he
G was the only son of his natural father.
~
Dismissing the appeal, the Court

HELD: 1. It is not in dispute that adoption was evidenced by a deed of
H 890
S.T. KRISHNAPPA v. SHIVAKUMAR 891

..,. adoption. No other agreement was produced before the Court to show that both A
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. [Para 9] (893-D-E)

2. No independent witness was also examined to prove that his genitive
parents gave in adoption to 'S' in the form of 'dvyamushyayana" on the basis B
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 [Para 101 (893-E-FI

Rajgopal (Dead) by Lrs. v. Kishan Gopal and Anr., (2003110 SCC 653,
referred to.
c
Principles of Hindu Law by Mulla, referred to.

3. No presumption that adoption was in dvyamushyayana form, can be
attached as a brother had not given his only son in adoption to another brother. D
It is also not a case where such a custom was prevalent. If there existed a
custom, the matter might have been different. (Para 131 (894-DI
~
Kartar Singh (Minor) through Guardian Bachan Singh v. Surjan Singh
(Dead) and Ors., A.I.R. (1974) SC 2161, referred to
E
4. 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.
[Para 161 (895-B-C) F
Ujagar Singh v. Mst. Jeo, AIR (1959) SC 1041 and His Highness
Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and Ors.,
(1994) 1 sec 734, relied on.

- ~
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2207 of2007.

From the Final Judgment and Order dated 29.06.2006 of the High Court
of Karnataka at Bangalore in Regular First Appeal No. 1187 of 2003.
G

P.S. Narsimha, Shekhar, G. Devasa, B.V. Binto, Ph. Dinesh Chandra,
Rajshri A. Dubey, Ashutosh Dubey and Dinesh Kumar Garg for the Appellant. H
892 SUPREME COURT REPORTS (2007] 5 S.C.R.

A Sunder Khatri and S.K. Sabharwal for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted.

B 2. 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 Kamataka at Bangalore in Regular First Appeal
No. 1187 of2003 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 •
i:
dismissing the suit for declaration and partition as also separate possession
c filed by the appellant herein.

3. 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,
D Krishnappa in adoption to Sohur Thimmaiah in a ceremony held therefor on
14.2.1995.

4. The deed of adoption admittedly did not contain any stipulation that
.,..
the said adoption was in "dvyamushyayana" or in other form.
E 5. 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
F 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.

6. 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
G
-
family property of Thimmadasappa and thus became entitled to 2/3 share in
the suit properties. The learned trial judge framed the following issues:-
~

"I. 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
H
S.T. KRISHNAPPA v. SHIVAKUMAR [S.B. SINHA. J.] 893

properties? A
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?" B
7. 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.

8. Mr. P.S. Narasimha, learned counsel appearing on behalf of the
c
appellant would, in support of this appeal, submit that the learned Trial 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.
D
9. It is not in dispute that adoption was evidenced by a deed of
adoption dated 15.2.1945. No other agreement was produced bit-ore 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.
E
I 0. 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.
F
11. What are the requisite ingredients of adoption in the said form came
up for consideration in Rajgopal (Dead) by Lrs. v. Kishan Gopal and Anr.,
[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,
G
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 H
894 SUPREME COURT REPORTS (2007] 5 S.C.R.
>_,
A Mal." {

12. 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
B 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
i
presumption, and that a person alleging that an adoption was in the
t
dvyamushyayana form, must prove that there was an agreement to
that effect, even if the person adopted was the only son of a brother.
c But it is not necessary that the adoptive father and the natural father
should be brothers."

13. 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
D matter might have been different.

14. 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.
E 15. In Kartar Singh (Minor) through Guardian Bachan Singh v. Surjan
Singh (Dead) and Ors., A.LR. (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
F 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
G 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
H
S.T. KRISHNAPPA v. SHIVAKUMAR [S.B. SINHA, J.] 895
"adopted son" in three places. He specifically calls the document A
"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."
B
16. 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.
c
17. See also Ujagar Singh v. Mst. Jeo, AIR (1959) SC 1041 and His
Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi
and Ors., [1994] Supp 1SCC734]

18. In view of the finding of fact arrived at by the courts below, we do D
not find any merit in this appeal which is dismissed accordingly with costs.
Counsel's fee assessed at Rs. 10,000/-.

D.G. Appeal dismissed.

)'