JUDGMENT
K. Sreedhar Rao, J.
1. The appeal filed against the judgment and decree passed in O.S. No. 2956/88 on the file of the XIV Addl. City Civil Judge, Bangalore. At the request of the counsel for the appellants and the respondents, the matter was heard at the admission stage. The trial Court records were also secured for the purpose of perusal.
2. The appellant is the first defendant in the suit. The second respondent is the second defendant in the suit and the first respondent is the plaintiff who filed the suit for declaration of title in respect of the suit property and for possession and mesne profits. According to the plaintiff, the ancestral property earlier belonged one Kare Rangaiah, the father-in-law of the second defendant and Gangaiah, who is the husband of the second defendant. It is said that the suit property was allotted to the share under a registered partition deed dated 15-12-1945. Gangaiah, the husband of the second defendant died somewhere in the year
1951 and he had no issues. He left behind his widow, the second defendant. Later on, the father-in-law of the second defendant Kare Rangaiah also died in the year 1955. Thus, it is said that after the death of the husband and the father-in-law, the second defendant became the absolute owner of the property and she sold the property to the plaintiff in the year 1980 under a registered sale-deed. Therefore, the plaintiff claims to be the absolute owner of the suit property by virtue of the sale deed executed in her favour and seek for possession and for mesne profits.
3. The second defendant has remained ex parte. The appellant/first defendant has contested the suit contending that he is the adopted son of the second defendant under an adoption deed and by virtue of the adoption, he has a right in the suit property. The second defendant had no right of alienation and the sale-deed executed does not convey any title in favour of the plaintiff and prayed for dismissal of the suit.
4. The trial Court, on consideration of the oral and documentary evidence, found that the first defendant’s adoption is not valid in law and also upheld the right of the second defendant in executing the sale-deed in favour of the plaintiff. Accordingly decreed the suit. Being aggrieved, the first defendant has filed this appeal.
5. On the factum of adoption, the counsel for the appellant strenuously contended that the adoption took place much earlier to Ex. P.3, the registered adoption deed dated 7-11-1960, and the oral evidence is also let in to show that the appellant was aged only 10 years when he was adopted and the adoption has taken place somewhere in the year 1952 immediately after the death of Gangaiah as per the oral evidence adduced. I am unable to agree with the contention of the counsel for the appellant since the recitals in Ex. P.3 clearly indicate that the event of adoption took place on the date of the deed itself. Any oral evidence in contradiction with the terms of the written document cannot be adduced. Therefore, as per the recitals in Ex. P.3, it is clear that the adoption took place as on the date of the deed on which date the appellant was shown to be of 18 years as per the recitals in the deed. Therefore, in view of the provisions contained in Section 10 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the ‘Act’), the adoption of the appellant was not permitted in accordance with law.
6. The counsel for the appellant relied on the ruling of the Supreme Court in Kondiba Rama Papal alias Shirke (Dead) by his Heirs and LRs. v. Narayan Kondiba Papal, wherein it held thus:
“Section 10 : Adoption-Custom in concerned area permitting adoption of child at any age judicially recognised — Proof of custom not necessary in subsequent cases — Once factum of adoption is proved — Adoption cannot be challenged on ground that child was above 15 years at the time of adoption.”
However, in the instant case, there is no custom pleaded and proved to show that in the community to which the parties belong, nor it is shown that the custom of adoption of a boy, aged about 15 years is otherwise Judicially recognised. Therefore, I do not find any flaw in the finding of the trial Court that the adoption of the appellant is illegal and not in accordance with Section 10 of the Act.
7. The counsel for the appellant strenuously contended that in fact the adoption is much anterior to Ex.P.3 and some-where in the year 1952 and even other contended that the registered deed of adoption raises a presumption of valid adoption in view of the provisions contained in Section 15 of the Act and also that in view of the “doctrine of relation back,” the date of adoption relates back to the death of Gangaiah in the year 1951 and thus he is deemed to be a member of the family entitled to inheritence and as such, the second defendant cannot be considered in law as the exclusive owner of the property after the death of her husband and her father-in-law Kare Rangaiah. In respect of the legal proposition, the counsel relied on the decision of this Court in Nandappa Paramanna v. Shidgouda Ningappa reported in AIR 1964 Mysore 217 wherein it is held thus:
“Hindu Law — Adoption — Doctrine of relation back and divestment — Alienation of property by sole surviving coparcener –Subsequent adoption of another person by widow of predeceased coparcener — Alienation when binding on estate — Alienation not for family necessity of benefit — Alienation held did not bind the adopted son.
The right of the adopted son to claim the share of his adoptive father relates back to the date of the death of the adpptive father. The position is not different between an alienee and an heir inheriting an estate from a sole surviving coparcener. Whether the case is the one or the other, there is a divestment consequent upon the adoption of a person by the widow of a pre-deceased coparcener, provided the alienation is not made for purpose binding on the estate. The alienation binds the estate if it is made either for family necessity or for family benefit.
Held, that in the instant, case there was no evidence on the basis of which it could be said that the alienation made by the sole surviving coparcener long before the adoption of the plaintiff by the widow of pre-deceased coparcener was for family necessity. The plaintiff, there, was not bound by the alienation.”
8. The ruling of the Supreme Court in Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, wherein it is held thus (at p. 881 of AIR) :
The plaintiff, as the adopted son for secular and spiritual purposes continues the line of the adoptive father and when the widow adopts, the doctrine of ‘relation-back’ makes sonship retroactive from the moment of death of the late husband. The new entrant is deemed to have been born on the date of the death of the adoptive father. Supposing there was an undivided family in existence when the adoptive father died, how far can the legal fiction of anterior sonship disrupt the doings between natural birth and actual adoption? Mulla sums up the result of the rulings thus :
“If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in the family properties as if they were still joint.”
Although the said decisions lay down the legal implications of the “doctrine of relation-back”, however the said decisions would
not be applicable to the facts of the case.
9. The provisions of Sections 4 and 12 of the Act for convenient reference are extracted hereunder :
“4. Overriding effect of Act
Save as otherwise expressly provided in this Act,–
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
12. Effects of adoption
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by adoption in the adoptive family :
Provided that-
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”
After passing of the Act, in view of the provisions contained in Sub-section (c) of Section 12, any property already vested in a person cannot be divested by virtue of the later adoption. The provisions of Section 4 also clearly declare that the provisions of the Act have the overriding effect of any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which the provision is made in this Act.
10. The counsel for the respondent relied on the ruling of the Supreme Court , Vasant v. Dattu which squarely applies to the facts of the case, wherein it is held thus :
“The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but with more members than before. There is no fresh vesting or divesting of the estate in anyone. It cannot be said that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship. The property, no doubt, passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by Section 12 of the Act. To interpret Section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family. Such a result was not in the contemplation of Parliament at all. Thus where a widow of a deceased coparcener adopts or child Section 12 Proviso (c) does not preclude the adopted child from claiming his share in the joint family properties; for if a share is given to the adopted child there is no question of “divesting” any person of any estate which vested in him before adoption.”
(Underlining emphasised by me)
11. On the death of Gangaiah as there were no issues, only the second defendant was the surviving heir and according to the provisions of the Karnataka Hindu Law Women’s Rights Act, 1933 she was entitled to a limited estate in the estate of her husband and her father-in-law Kare Rangaiah also died before the advent of the Hindu Succession Act, in short, hereinafter referred to as the ‘Act of 1956’, there was no other member of the family except the second respondent. Therefore, she inherits the property as an absolute owner after passing of the Act of 1956. By virtue of the provisions contained in Section 14 of the Act of 1956 the limited estate ripens into full estate. Even assuming for a moment that the adoption is valid which took place somewhere in the year 1960, by then the second defendant had
acquired absolute rights in the property. Therefore, in that context I find that the second defendant had right to convey title in favour of plaintiff. Accordingly, I do not find any merit in the appeal and hence the appeal is dismissed.