Amareshappa Vs. State of Karnataka - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. article 57: [n. kumar, j] applicability of held, to apply article 57 of the limitation act, the suit must one for a declaration that an adoption is invalid. it is only when the prayer in the suit is for a declaration that an adoption is invalid, in such a case article 57 would apply. further, article 57 pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way inheritance. the suit for partition cannot be treated as one for setting aside the adoption merely because one of the dependant set up a claim so as to attract the article of limitation act. therefore, article 57 is not attracted and the suit is not barred by time. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 7, explanation: [n. kumar, j] capacity of a male hindu to take in adoption consent of the wife held, consent of the wife is a condition precedent for a valid adoption. if a wife is living, the adoptive father shall not adopt a child except with the consent of his wife. explanation to section 7 makes it clear that if the person has more than one wife living at the time adoption, the consent of all the wives is necessary. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 10 clause (iv): [n.kumar, j] persons capable of being taken in adoption applicability of custom or usage in the matter of adoption held, a person who has completed the age of 15 years is not capable of being taken in adoption. but clause (iv) of section 10 of the act provides, if there is a custom or usage applicable to the parties which permits persons who have completed the age of 15 years being taken in adoption, then adoption of a person who has completed the age of 15 years is permissible section 16: [n. kumar, j] presumption regarding registered document relating to adoption courts below, refusing to draw the presumption conditions to be fulfilled regarding factum of adoption held, firstly, the registered document evidencing adoption should be produced before the court, secondly, it should be shown that the said document is signed by the person giving the child in adoption, and thirdly, it should be shown that it is signed by the person taking the child in adoption. on facts, held, in the in stance case, the original registered adoption deed is produced. it bears the signature of the person taking the child adoption. but admittedly, it does not bear the signature of the person giving the child in adoption. once the original adoption deed produced did not bear the signature of the person giving in adoption, then the presumption under section16 of the act is not attracted. that is precisely what the courts below have held. indian evidence act,1872[c.a.no.1/1872] section 90: [n. kumar, j] thirty years old documents presumption admissibility of ancient documents without proof rule of necessity and convenience held, it is extremely difficult and sometimes impossible to prove the hand writing or signature or execution of ancient documents after the lapse of many years . the words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. it is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. further, though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. hence, no presumption under section 90 of the evidence act, could be raised to the effect that the adoption recorded in the deed is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. - 3. we would like to point out at the outset that the learned single judges are bound by the decision of the larger benches such as the division benches and full benches. we are therefore, clearly of the opinion that reference to the division bench was not justified on the ground that the learned single judge is not inclined to agree with the view taken by the division bench. it has been pointed out that the said requirement is mandatory and serves a very good purpose of informing the persons likely to be affected as to what is the precise lap4 that is sought to be acquired, with a view to enable them to submit their objections. therefore, we do not find any good ground to take a view different from the, one taken by the division bench in kalappa's -case referred to above. if the field channel is required to be laid for reaching water to a particular land of a particular person, we fail to see how an objection can be raised on the ground that you cannot lay a channel for the purpose of reaching water for a particular individual. as there is no other infirmity pointed out in this case, this writ has to fail.malimath, c.j.1. the authorities issued a notification under s. 15(l) of the karnataka irrigation act, 1965 dt. the 17th of august, 1978 proposing to acquire a portion of the petitioner's land in survey no. 10 of san hosur village of manvi taluk for the purpose of laying the channel to reach water to the land of the third respondent. this was followed by a notification under s. 15(2) of the said act dt. 17-10-1978. the petitioner filed his objections, which were considered by the assistant commissioner after giving a hearing to the petitioner. thereafter an order came to be made under s. 16(l) of the karnataka irrigation act on the 2nd of jan., 1979 exhibit 'c' proposing to acquire the notified portion of the land. it is the acquisition in so far it pertains to land of the petitioner that is challenged in the writ petition.2. when the matter came up for consideration, the learned single judge felt that it is difficult for him to follow the division bench ruling of this court reported in (1972) 2 mys u 265: (air 1973 mys 32). it is therefore that the learned single judge to the division bench has referred this case.3. we would like to point out at the outset that the learned single judges are bound by the decision of the larger benches such as the division benches and full benches. the learned single judge has to follow the decision of the larger bench. that is the position even if the learned single judge is inclined to take a view different from the one taken by the division bench. that is the discipline which all of us are subject to. if the learned single judge renders the decision the parties are entitled to take up the matter before the appellate bench and then canvas before the division bench about correctness of the view taken by another division bench. it would be for the division bench, if it is persuaded, to doubt the correctness of the view taken by another division bench. in that event it has to formulate the necessary points of law and refer the same to the full bench for consideration. we are therefore, clearly of the opinion that reference to the division bench was not justified on the ground that the learned single judge is not inclined to agree with the view taken by the division bench.4. it appears to us that there is a mistake committed in preparing the head-note of the case in (1972) 2 mys u 265: (air 1973 mys 32). the last paragraph of the head-note indicates that the principle enunciated therein is with reference to sub-sec. (1) of s. 15 of the karnataka irrigation act 1965. but on a careful reading of the judgment and particularly paragraph 7 of the said judgment, it becomes clear that the said enunciation is with reference to sub-sec. (2) of s. 15 of the karnataka irrigation act. the division bench pointed out that the notification issued under' s. 15(2) should contain particulars about the: extent of the land in the survey number that is required for construction of field channels, the boundaries and the measurements thereof. it has been pointed out that the said requirement is mandatory and serves a very good purpose of informing the persons likely to be affected as to what is the precise lap4 that is sought to be acquired, with a view to enable them to submit their objections. therefore, we do not find any good ground to take a view different from the, one taken by the division bench in kalappa's -case referred to above.5. so far as the merits of the case are concerned, we must point out that the question of applying the law laid down in kalappa's case (air 1973 mys 32), does not at all arise. not a single ground has been taken in the writ petition bearing on s. 15(2) of the karnataka irrigation act. hence, the question of relying upon the decision of kalappa's case does not at all arise for consideration. the participle grievance, as can be seen from the writ petition is that the irrigation channel is being laid solely for the purpose of benefiting the third respondent and only to irrigate his land. the purpose of the irrigation act is to provide water to all the lands within the achkut area of the project. if the field channel is required to be laid for reaching water to a particular land of a particular person, we fail to see how an objection can be raised on the ground that you cannot lay a channel for the purpose of reaching water for a particular individual. there is, therefore, no substance in this part of the case. there is absolutely no substance in the case put forward that the action taken in this behalf is to support the third respondent and is therefore not bona fide. as there is no other infirmity pointed out in this case, this writ has to fail.for the reasons stated above, this writ petition fails and is dismissed. no costs.6. petition dismissed.