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Bombay High Court
Kisan Baburao Memane And Another vs Suresh Sadu Memane on 6 April, 1995
Equivalent citations: AIR 1996 Bom 50, 1995 (4) BomCR 269, (1995) 97 BOMLR 542, 1996 (1) MhLj 100
Bench: M Dudhat


JUDGMENT

1. Mrs. Gokhale prayed for amendment of the second appeal. The grounds taken by the proposed amendment are purely legal grounds based on facts which are already on record. Prayer made by Mrs. Gokhale is granted.

2. By this second appeal the appellants original defendants have challenged the judgement and decree passed by the Joint Judge, Pune, on September 4, 1985 in Civil Appeal No. 815 of 1983 preferred against the Judgement and decree passed by the 4th Joint Civil Judge, Senior Division, Pune, in Special Civil Suit No. 398 of 1973. By the aforesaid judgement and decree the lower appellate Court reversed the finding of the trial Court and directed the appellants to handover possession of the suit properties to the original plaintiff. A few facts which are germane for the disposal of this second appeal are as under:

The plaintiff in this case had filed a suit against the defendants- appellants herein for possession of the suit properties. It is the case of the plaintiff that the suit property originally belonged to one Sadu Memane who died on June 20, 1919 leaving his wife Bhagubai. The said wife Bhagubai adopted the plaintiff on June 21, 1973. The plaintiff, therefore, filed a suit against the defendants being Special Civil Suit No. 398 of 1973 before the joint Civil Judge, Senior Division, Pune, for possession of the suit properties on the ground that he being the adoptive son of Sadu Memane is entitled to get possession of the suit lands from the defendants. The aforesaid suit was resisted by the defendants who are brothers. Firstly, it was contended on behalf of the defendants that the adoption as alleged by the plaintiff dated June 21, 1973 is invalid and illegal on various grounds. Secondly, it was contended that after the death of Sadu Memane, Bhagubai was residing with the defendants. The defendants used to cultivate the suit lands and also look after Bhagubai. Bhagubai thereafter gifted the suit lands by a registered gift-deed to the defendants, who are also her nephews, out of love and affection on May 17, 1948, it is the case of the defendants that they are cultivating the suit lands as owners till today. It was also contended on behalf of the defendants that even presuming that the adoption is valid the suit properties once divested by a gift-deed cannot be recovered by the plaintiff as adoptive son. The trial Court held that the adoption as alleged by the plaintiff was not proved and, therefore, by his judgement dated April 30, 1982 dismissed the said Special Civil Suit No. 398 of 1973. Against the aforesaid judgment and decree passed by the trial Court the plaintiff preferred Civil Appeal No. 815 of 1983 before the Joint Judge, pune, and the lower appellate Court passed the decree of possession in favour of the plaintiff. The lower appellate Court held that the plaintiff proved that he was adopted by Bhagubai on June 21, 1973. Further, the lower appellate Court relying on several authorities held that the said adoption is valid even if the age of the plaintiff was more than fifteen years at the time of adoption. The lower appellate Court further held that the adoption of the plaintiff on June 21, 1973 relates back to the death of Sadu Memane i.e. on June 20, 1919 and, therefore, the plaintiff is entitled to recover possession of the suit lands. The aforesaid judgment and decree is the subject matter of challenge before me.

3. At the outset I may mention that Mrs. Gokhale, the learned counsel appearing on behalf of the appellants -original defendants conceded the legal position to the effect that though at the time of adoption the plaintiff was more than fifteen years of age the said adoption is valid in view of the ratio as laid down in various judgments of this Court. However, Mrs. Gokhale strenuously challenged the decree on various other grounds. Firstly it was contended on behalf of the appellants that the suit filed by the plaintiff is liable to be dismissed as the same was premature on the date of he filling of the suit. Secondly, it was contended that the defendants have taken a specific stand that the suit property was gifted by Bhagubai on May 17, 1948 vide registered gift deed, Ex. 87, still , he plaintiff sought no declaration to the effect that he said gift-deed is not binding upon him and, therefore on this ground also the said suit is liable to be dismissed. Thirdly, it was contended on behalf of the appellants that the gift dated may 17, 1948 is by Bhagubai in favour of the defendants was for legal necessity and, therefore, one the property is validly divested from Bhagubai, the adoptive son-plaintiff cannot claim the suit property. Lastly, it was contended on behalf of the appellants that in view of S. 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act of 1956”) the plaintiff became adoptive son only from the date of the adoption i.e. from June 21, 1973 and in view of S. 12(C) of the Act of 1956 the adoptive son-plaintiff shall not divest any person in the suit property which was vested n the defendants before the adoption.

4. Since, the legality of adoption is not the subject-matter of challenge before me, I have to consider only the effect of the gift-deed dated May 17, 1948 in the context of Hindu Adoptions and Maintenance Act, 1956. The lower appellate court has held tat after the adoption on June 21, 1973 the plaintiff claims the property of his adoptive father Sadu Memane from the time of his death on June 20, 1919. While coming to the aforesaid conclusion the lower appellate Court relied upon the ratio as laid down by the Supreme Court in the case of Natvarlal Punjabhai v. Dadubhai Manubhai , . With respect, according to my opinion, the said decision is not applicable in the facts and circumstances of the present case. The case decided by the Supreme Court is with reference to the adoption law prior to Hindu
Adoptions and Maintenance Act, 1956. However, Hindu Adoptions and Maintenance Act, 1956 came into force on December 21, 1956 and since the plaintiff was adopted by Bhagubai admittedly on June 21, 1973, the adoption of the plaintiff by Bhagubai will be governed by the Act of 1956. Section 12 of the Act of 1956 reads as under:

“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 the 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.”

As per the provision of the aforesaid S. 12, the adoption of the adoptive son to the father or mother gets effect only from the date of adoption and not retrospectively. Secondly, it is also pertinent to note that as per clause (c) of S. 12 if any estate or property is divested to any other person before the adoption then the adopted son is not entitled to get back the said property. This being the clear legal position under the Act of 1956 the lower appellate court was wrong in giving retrospective effect to the adoption of the plaintiff, from June 20, 1919 when Sadu Memane the adoptive father expired and not from the date of adoption i.e. from June 21, 1973. Once this legal position is accepted the argument of maintainability of the suit as advanced by Mrs. Gokhale, the learned counsel for the defendants, assumes importance. Admittedly, the present suit was filed on September 19, 1973. During the pendency of the said suit Bhagubai died some time in 1975. That means, on the date on which the suit was filed Bhagubai was alive. The suit as filed by the plaintiff can only be decreed on the basis that the gift dated May 17, 1948 is not legal. If that is so, then, in that event, after the Act of 1956 came into force i.e. on June 17, 1956 (December 21, 1956) onwards, the window-Bhagubai became the absolute owner. After the adoption of June 21, 1973 the plaintiff, the adoptive son will not be entitled to get the suit property as the son of the adoptive father but as a son of adoptive mother only after her death. In the present suit the plaintiff has not made Bhagubai as one of the parties. Keeping this principle in view, the plaintiff claiming to be adopted son of Bhagubai could not have filed this suit for possession of the suit i.e. on September 19, 1973 Bhagubai the window of Sadu Memane was alive and she died sometime in 1975. In view of this the suit filed by the plaintiff is liable to be dismissed as the same is filed prematurely. Apart from this, this suit is liable to be dismissed also on the ground that the plaintiff has not challenged the registered gift dated May 17, 1948 given by Bhagubai it favour of the defendants.

5. Mrs. Gokhale, the learned counsel appearing on behalf of the appellants-defendants, contended that the gift-deed, Ex. 87 dated May 17, 1948 was for legal necessary and, therefore, the gift, even under the Hindu Law, on the date of the gift, is valid. She contended that there is a specific averment made in the registered deed by Bhagubai the effect that after the death of her husband she was living with the defendants, her nephews. They used to look after her and also own sons. The defendants maintained her and she had the confidence that they will maintain and affection she gifted the suit land to the defendants by a registered gift-deed, Ex. 87. Mrs. Gokhale contended that without obtaining a declaration challenging the said gift-deed the plaintiff is not entitled to file the said suit.

6. Mr. Dalvi, the learned counsel, appearing on behalf of the plaintiff, contended that the plaintiff filed the suit on the basis that he is adoptive son of Sadu and Bhagubai and, therefore, is entitled for the possession of the suit land. If it is the case of the defendants that they are in possession of the suit and on the basis of the gift the burden is upon them to prove that the gift was a valid gift for all legal necessities. Mr. Dalvi further contended that the case of the plaintiff is that he has become the successor of Sadu Memane immediately after his death and, therefore, the said gift, Ex. 87 dated May 17, 1948 cannot in any way come in his legal right to get the possession of the property.

7. Heard the rival arguments. According to me, in this matter the plaintiff has not challenged the gift-deed Ex. 87, dated May 17, 1948. It is true that after defendants filed the written statement the fact that Bhagubai had given the land in gift might have been brought to the notice of the plaintiff. But, then in that event, the plaintiff could have amended the plaint and challenged the gift-deed. Since there was no specific issue before both the lower courts about the validity of the gift no evidence was led as regards the legal necessity and, therefore, unless there is evidence on this issue as to whether the gift, Ex. 87, is valid gift because the same was executed due to legal necessity, this argument cannot be decided by me in second appeal unless in fairness I give opportunity to the plaintiff to amend his plaint to the effect and remand the matter to allow both the sides to lead evidence to fortify their contentions. But that exercise is unnecessary in view of the fact that I am allowing this appeal on other grounds.

8. Mr. Dalvi, the learned counsel appearing on behalf of the plaintiff further contended that the gift, Ex. 87, on the basis of which the defendants are claiming the property is invalid or void document. Without going into the legalities of the aforesaid argument and presuming for a while that the said document are invalid, still, according to my opinion, the same will not come to the help of the plaintiff in maintaining the lower appellate court’s decree. The reason being, presuming for a while for the sake of argument, that the gift dated may 17, 1948, Ex. 87, is invalid and not to be taken into consideration, then, in that event, no property whatsoever can be passed to the defendants by the said document and in spite of the said deed Bhagubai continued to be the owner of the suit property. If that is so, after the Act of 1956 came into force on June 17, 1956 (December 21, 1956) Bhagubai’s limited interest in the suit land became full interest and she became absolute owner, more particularly, in view of S. 14 of the Act of 1956. In that event Bhagubai ought to have filed the suit against the defendants within twelve years i.e. on or before June 17, 1968. Admittedly, in this case the suit was filed on September 19, 1973 and, therefore, even if Bhagubai had filed this suit the same would have been time-barred. Apart from that even if we presume for a while that the gift-deed is invalid then the defendants who were admittedly cultivating the lands from May 17, 1948 as owners have perfected their title by adverse possession in any case on June 17, 1968. In view of this, alleged right accrued to the adopted son on June 21,1973 as per S. 12 of the Act of 1956 cannot divest the property vested in defendants . In view of this, even presuming for a while that the document is invalid and illegal, the plaintiff’s suit cannot be decreed. In view of this the lower appellats court’s judgment and decree is liable to be set aside.

Hence, this appeal is allowed. The judgement and decree passed by the Joint Judge, Pune, in Appeal No. 815 of 1983 is set aside and the suit filed by the plaintiff is dismissed with no order as to costs.

Certified copy be furnished forthwith.

9. Appeal allowed.


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