S.T. KRISHNAPPA versus SHIVAKUMAR AND ORS.

Citation: [2007] 5 S.C.R. 890 · Decided: 27-04-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

A 
S.T. KRISHNAPPA 
v. 
\ 
SHIV AKUMAR 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. 
' 
D 
'T' had a brother 'S' who was issueless. T and his wife gave their son, 
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. 
F 
On appreciation of the evidence and in particular the fact that 'T' had 
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 
G adoption of the appellant by 'S' took place in "dvyamushyayana" form as he 
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 B 
parents gave in adoption to 'S' 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 [Para 101 (893-E-FI 
.:\ 
Rajgopal (Dead) by Lrs. v. Kishan Gopal and Anr., (2003110 SCC 653, c 
referred to. 
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. 
G 
-
~ 
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. 
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: 
c 
dismissing the suit for declaration and partition as also separate possession 
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.
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