Second Appeal No.841 of 2012,Civil Application No.8799 of 2013

23rd April, 2014

Petitioner Counsel: Shri. M.V. GHATGE
Respondent Counsel: Shri. MUKUL KULKARNI, Shri. A.B. DHONGADE

Cases Cited:
Debi Prasad Vs. Tribeni Devi, AIR 1970 SC 1286 [Para 16]
Dhanraj Vs. Suraj Bai, AIR 1975 SC 1103 [Para 16]
Kishori Lal Vs. Mt. Chaltibai, AIR 1959 SC 504 [Para 17]

JUDGMENT

JUDGMENT :- The appeal is filed against the judgment and decree of Regular Civil Appeal No.2 of 2007 which was pending in the Court of the District Judge-1, Basmatnagar, Hingoli. Present respondent No.1 had filed Regular Civil suit No.135 of 1995 in the Court of the Civil Judge, Senior Division, Basmatnagar for relief of partition and declaration in respect of immovable property and the suit is decided in favour of the respondent No.1. This decision is confirmed against the present appellant / defendant by the First Appellate Court. Both the sides are heard.

2. The suit was filed in respect of land Survey Nos.425 and 428 situated at Girgaon. The total area of these two lands is around 2.12 hectares. Defendant Nos.1 and 2 are the sisters of the plaintiff.

3. It is the case of the plaintiff that the suit properties were owned by father of the plaintiff and defendant Nos.1 and 2 namely Shankarrao and it was his ancestral property. It is contended that Shankarrao died on 10-2-1995 and after his death plaintiff and defendant Nos.1 and 2 became owner of these properties and each of them has equal share in this property. It is contended that after death of Shankarrao there was possession of the plaintiff and defendant Nos.1 and 2 over the suit property.

4. Shankarrao had no male issue. It is contended that Shankarrao had no intention to take boy in adoption as he loved his daughters very much and he wanted to see that his daughters get the properties after him. It is contended that defendant No.1 was living with deceased Shankarrao in his village and she was taking care of Shankarrao till his death. It is contended that Shankarrao died at the age of 90 years and from many years prior to the death, Shankarrao was sick.

5. It is the case of the plaintiff that defendant No. 3 is a close relative of deceased Shankarrao and in order to grab the property of Shankarrao defendant No.3 developed cordial relations with Shankarrao. It is contended that defendant No.3 then started posing himself as adopted son of Shankarrao. It is contended that Shankarrao never adopted defendant No.3. It is contended that at the relevant time, when defendant No.3 contends that he was taken in adoption, defendant No.3 had crossed age of 15 years, he was married and he had a son. It is contended that there is no custom in their community or family of the plaintiff to take such person in adoption.

6. It is the case of the plaintiff that falsely Regular Civil Suit No.65/1984 was filed by defendant No.3 against Shankarrao and false record of compromise was created by defendant No.3 to grab the properties of Shankarrao. It is contended that there was no need for Shankarrao to compromise such matter. It is contended that defendant No.3 then got entered his name in the revenue record of the agricultural lands. It is contended that defendant No.3 appears to have entered name of defendant No.4, son of defendant No.3 in the revenue record to show that he is owner of some portion of the suit property.

7. It is the case of the plaintiff that after the death of Shankarrao, when she made enquiry, she realised that the names of defendant Nos.3 and 4 were entered in the revenue record of the suit property. The plaintiff is resident of other place. It is contended that due to such record, she felt that her sister, defendant No.1 had joined hands with defendant No.3. It is her case that when she made enquiry with defendant No.3, defendant No.3 said that he was adopted by Shankarrao and so plaintiff had no right in the suit property. In the suit, plaintiff had prayed for relief of partition and separate possession of her one-third share. She had also prayed for relief of declaration to the effect that the so called adoption of defendant No.3 is void. Declaration was sought to the effect that the decree of Suit No.65/1984 is not binding on the plaintiff.

8. Defendant No.1 filed consent written statement. Defendant Nos.3 and 4 filed written statement and they resisted the claim. They admitted that plaintiff and defendant Nos.1 and 2 are the daughters of Shankarrao. Defendant No.3 has contended that by Will Shankarrao had bequeathed the suit property to him and even house property is also bequeathed to him.

9. It is the case of the defendant No.3 that Shankarrao died at the age of 80-81 years. It is contended that Shankarrao suffered attack of paralysis only 10 days prior to his death, but prior to that, he was physically and mentally fit. It is the case of the defendant No.3 that the father of the defendant No.3 was real brother of Shankarrao and as Shankarrao was not having son, defendant No.3 was taken in adoption by Shankarrao. It is contended that even Shankarrao had gone in adoption to his uncle Lakhmaji. It is contended that when defendant No.3 was adopted, Dattak ceremony was performed but prior to that also relation of defendant with Shankarrao was cordial and Shankarrao was treating defendant No.3 as his son. It is contended that adoption took place on 2-4-1984, day of Gudi Padwa as per Hindu rites and customs. It is contended that father of defendant No.3 was dead but he had given authority to the mother of defendant No.3 to give defendant No.3 in adoption and she gave defendant No.3 in adoption.

10. It is the case of the defendant No.3 that from prior to date of adoption he was living with Shankarrao and he was taking care of Shankarrao. It is contended that parties belong to Mali community and in his community there is custom to take in adoption adult male and even a married male. It is contended that said adoption was registered by Shankarrao on 3-7-1987 and on this document there are thumb impressions of both Shankarrao and mother of the defendant No.3.

11. It is the case of the defendant No.3 that RCS No.65/84 (Pandurang v. Shankar) which was filed by defendant No.3 against Shankarrao is decreed in his favour on the basis of compromise which took place between him and Shankarrao. He has denied that defendant No.1 was living with Shankarrao at the relevant time and she was cultivating the suit lands. It is the case of the defendant No.3 that he gave some portion of the suit land to his son defendant No.4 by effecting partition. It is contended that Shankarrao wanted to give his property only to defendant No.3 and not to his daughters and so he adopted defendant No.3 and he also executed one Will in favour of defendant No.3. It is the case of the defendant No.3 that the suit property was self acquired property of Shankarrao and so nothing is left for the plaintiff or her sisters.

12. The trial Court framed issues as per the aforesaid pleadings. Both the sides gave evidence. The trial Court has given relief claimed by the plaintiff and it is held that the plaintiff, defendant No.1 and defendant No.2 have 1/3rd share each in the suit property. The trial Court has given declaration that the defendant No.3 was not adopted by Shankarrao. Decree is given in respect of decision of RCS No.65/1984 also. The findings given by the trial Court on all the relevant issues are confirmed by the First Appellate Court.

13. Learned counsel for the appellant submitted that on the grounds mentioned in the appeal memo the substantial questions of law need to be formulated. He was allowed to argue on the points mentioned in the appeal memo and particularly on following points :

(i) whether decree in RCS No.65/1984 is binding on the daughters of Shankarrao ?

(ii whether the relief claimed in respect of decree given in RCS No.65/1984 and the so called adoption are barred by law of limitation ?

(iii) whether the Courts below have committed error in not considering the provision of Section 16 of the Hindu Adoption and Maintenance Act 1956 ?

The last point is not appearing in the appeal memo but the learned counsel for the appellant was allowed to argue on the last point also.

14. The defendant No.3 has not proved the so called Will allegedly executed by Shankarrao. In view of this circumstance the entire dispute revolves around the so called adoption of defendant No.3 by Shankarrao on 2-4-1984. Person who seeks to displace the natural succession of property by alleging adoption is expected to discharge the burden that lies upon him. He is expected to prove that there was valid adoption. Fact of adoption is mixed question of law and fact. First the factum of giving and taking is required to be proved and then the law needs to be applied to see whether it can be treated as valid adoption. As per the Shastric Hindu Law contained in Hindu text no writing is required to prove adoption. Thus the fact of adoption can be proved as any other fact.

15. Hindu law, customs and usages are considered in codified law viz. Hindu Adoptions and Maintenance Act, 1956 (hereinafter refereed to as "the Act'). The procedure of adoption is given in section 11 of the Act and it runs as under :

"11. Other conditions for a valid adoption.-- In every adoption, the following conditions must be complied with :-

(i) . . . . .

(ii) . . . . .

(iii) . . . . .

(iv) . . . . .

(v) . . . . .

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption :

Provided that the performance of datta homam shall not be essential to the validity of an adoption."

Thus the fact of giving and taking needs to be proved.

16. As per the contents of Hindu Text also there should be giving and acceptance of the boy taken in adoption. Thus the condition which was there in the text of Hindu Law is incorporated in the aforesaid provision. Even when adult is adopted, giving and taking as mentioned in the aforesaid provision is required to be proved. (reliance is placed on a case reported as AIR 1970 SC 1286 (Debi Prasad v. Tribeni Devi) and AIR 1975 SC 1103 - [Dhanraj v. Suraj Bai]).

17. When adoption would displace the natural succession of property, the evidence on adoption should be free from all suspicion of fraud and it should be so consistent and probable that it leaves no occasion for doubting the adoption. (reliance is placed on AIR 1959 SC 504 (Kishori Lal v. Mt. Chaltibai).

18. Provisions of section 5(1) of Chapter II of the Act runs as under :-

"5. Adoptions to be regulated by this Chapter.--(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void."

19. Section 11 is part of Chapter II. So, if factum of giving and taking is not proved, the so called adoption needs to be treated as void.

20. In the written statement, defendant No.3 has contended that adoption took place on 2-4-1984 and on that day ceremonies were performed. It is the case of the defendant No.3 that his mother gave him in adoption and Shankarrao took him in adoption. It is his case that one Narhari Maharaj acted as the priest for Dattak Vidhan, the ceremony. It is his case that many relatives attended the ceremony. No names of witnesses even close relatives are given in the pleading who must have witnessed the adoption if adoption had taken place. The evidence shows that Narhari Maharaj was not alive when evidence was recorded. Thus, the defendant No.3 wants to prove the factum of giving and taking only on the basis of his oral evidence and the oral evidence of his son, defendant No. 4. Examination in chief of these two witnesses is as per the aforesaid pleadings.

21. In the cross examination, defendant No.3 has tried to show that about 6 months prior to the date of adoption Shankarrao had decided to take defendant No.3 in adoption. When as per the record, defendant No.3 could not have denied that he had already crossed age of 15 years and was a married man, he has tried to say that when talk was going on, he was hardly 15 to 16 year old. His evidence in the cross-examination shows that on the date of so called adoption both plaintiff and defendant No. 1 were present in the village. Then he has specifically stated in the evidence that plaintiff, and defendant No.1 who were the only close relatives of the deceased Shankarrao did not attend the adoption ceremony. His evidence in the cross examination shows that their relations were cordial.

22. The evidence of defendant Nos.3 and 4 shows that no record of ceremony of adoption was prepared on 2-4-1984. No photographs were taken. Their evidence shows that there was no consultation even with respectable persons of the village made by anybody prior to the adoption. There is no record even in respect of invitations which are generally given to close relatives for attending such ceremony. The aforesaid circumstances and particularly absence of plaintiff, defendant Nos.1 and 2 and husband of defendant No.2 for such ceremony create doubt about the case of the defendant No.3 that on 2-4-1984 adoption took place.

23. Defendant No.3 has examined one witness Rustumrao (DW 3) but his evidence shows that he did not attend the ceremony. He has tried to say that when he went to Basmatnagar where adoption was registered, Shankarrao told him that he wanted to take defendant No. 3 in adoption. Thus, this DW 3 of the defendant No.3 has given evidence to the effect that adoption took place under the document.

24. Anandrao (DW 4), the other witness of defendant No. 3 is his son. His evidence is similar to the evidence of defendant No.3. This witness has given names of some persons, who, according to him, had witnessed the adoption ceremony. Those witnesses are however not examined to prove the adoption.

25. The deed of adoption is proved in the evidence of DW 2. This document is shown to be written on 14-6-1984 but it was admittedly registered on 3-7-1984 and that can be seen in the written statement. In this document date of adoption is not mentioned. The document is shown to be executed between Shankarrao and defendant No.3 and not between Shankarrao and mother of defendant No.3. Though the document purports to show that there is thumb impression of mother of defendant No.3, her thumb impression is there as a witness and not as a party to the adoption. The adoption was not contemporaneous with this document and so this document cannot prove factum of giving and taking. In view of these circumstances and some other circumstances, both the Courts below have held that the factum of giving and taking, is not proved. There is concurrent finding of fact and so in the second appeal interference in this finding is not possible. Both the Courts below have considered the aforesaid evidence and other relevant circumstances. It is not the case of appellant that some evidence was not considered.

26. When the factum of giving and taking is not proved, the adoption becomes void and so other things need not be considered. However, let us see as to whether the so called adoption can be treated as valid. The requisite conditions for making adoption a valid adoption, can be found in section 10 (iii) and (iv) of the Act and they are as under :

"10. Persons who may be adopted.-- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely :--

(i) . . . .

(ii) . . . .

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."

27. The evidence shows that the parties belong to Mali community. The provisions of Section 4 of the Act runs as under:-

"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 have effect in so far as it is inconsistent with any of the provisions contained in this Act."

This section gives overriding effect to custom or rule in the text if they are not saved by the Act itself. This section needs to be read with the provisions of section 5(1) already quoted. So, if the defendant No.3 is not able to show that there is custom or usage with regard to the aforesaid two conditions, the adoption needs to be treated as void. As per the record and even as per the oral evidence, the defendant No.3 had already crossed age of 15 years. He was married and he was having a son. The evidence given by defendant No.3 and his witnesses is not at all sufficient and convincing to prove that there is such custom or usage in his community or in his family. The custom needs to be strictly pleaded and proved. In the written statement no such pleading is there, giving the particulars. This point is indirectly considered and it needs to be presumed as considered by both the Courts below. Thus even after proving the factum of giving and taking, it would not be possible for the defendant No.3 to prove that the adoption was valid.

28. Learned counsel for the appellant has stressed much on the provisions of Section 16 of the Act. Section 16 runs as under :-

"16. Presumption as to registered documents relating to adoption.-- Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the persons taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

The provision shows that it becomes applicable only if giving and taking is proved and the document needs to be signed by the parties to show that there was giving and taking. So, it was necessary for the defendant No.3 to prove the factum of giving and taking. Even if there is writing, de-hors the document factum of giving and taking needs to be proved i.e. the base for using the document needs to be created and only after that the provision of Section 16 can be used.

29. So far as the relief claimed in respect of decree given in RCS No. 65/1984 is concerned, it can be said that everything about this circumstance is highly suspicious. The defendant No.3 has admitted in his cross examination that prior to filing RCS No. 65/1984 he had appointed Advocate Shri. Jarale to represent him in other suit. As per the Record, Advocate Jarale is shown to have represented Shankarrao in RCS No. 65/1984. The contents of the compromise decree and the plaint show that present defendant No.3 had approached the Court with a case that partition had taken place between him and Shankarrao and after partition there was some dispute. He had contended that due to the dispute and to save the property he had given Rs.10,000/- to Shankarrao and then Shankarrao had relinquished his share in the suit property in favour of defendant No.3. There was no document of relinquishment created. An attempt was made to show by creating this record that defendant No.3 was already adopted by Shankarrao and after that on 21-6-1984 partition had taken place. Thus, according to defendant No.3 prior to filing of RCS No.65/1984, defendant No.3 had become owner of the suit property. But, no steps were taken and no information was given to the revenue authority in view of the partition and relinquishment etc. It appears that only on the basis of decree obtained in the suit, some steps were taken. Here one thing needs to be kept in mind that in the plaint of RCS No.65/1984 defendant No.3 had contended that the suit properties were ancestral properties of Shankarrao. If it was the ancestral property, there ought to have been notional partition if it took place after 1956. The share could have been given to mother of plaintiff. The daughters would have succeeded to the property left behind by mother along with other heirs. But daughters of Shankarrao were not made parties to the suit. When defendant No.1 and her husband were present in the village and they were living in the house of the deceased and probably with the deceased, no reason is given as to why the daughters of Shankarrao were not made parties to the suit. In any case, it can be said that plaintiff wanted to prove the adoption dated 2-4-1984 and he wanted to prove that due to adoption he got right to file suit and due to the decree given in RCS No.65/1984 he became the owner. When defendant No.3 has failed to prove the adoption, all the subsequent claims based on such adoption also fail. Thus, both the Courts below have not committed any error in holding that the decree is not binding on the plaintiff.

30. It is the case of the defendant No.3 that a Will was executed by Shankarrao in his favour on 6-11-1985. If defendant No.3 had already got compromise decree in RCS No.65/1984 and if he had become absolute owner of all the properties which were standing in the name of Shankarrao, there was no need for Shankarrao to execute a Will subsequently, on 6-11-1985. No explanation is given as to why such Will was created. In any case the defendant No.3 avoided to prove this Will. One house is mentioned in the compromise document but the house is with the defendant No.1 and that fact is admitted by the defendant No.3. All these circumstances create suspicion about conduct of defendant No.3 and it supports the case of the plaintiff that defendant No.3 misused the circumstances and tried to grab the property. It needs to be kept in mind that Shankarrao was very old and he had only daughters.

31. If defendant No.3 had really become owner due to adoption, there was no possibility to effect partition of the property received due to adoption between defendant No.3 and defendant No.4 in view of the provisions of the Hindu Law. However defendant No.3 has created a record to show that he partitioned these properties between himself and defendant No.4 and gave some portion to defendant No.4. This circumstance shows that defendant No.3 wanted to create all kinds of complications and he wanted to deprive the daughters of Shankarrao of the properties left behind by Shankarrao.

32. Point of limitation was also argued. Aforesaid circumstances show that everything was done behind the back of daughters of Shankarrao by defendant No.3. In his evidence he admitted that at the time of death, in 1995 Shankarrao was possessing the suit properties and only after death of Shankarrao, defendant No.3 was to become the owner. In view of this circumstance, this Court has no hesitation to hold that the cause of action arose for filing the suit after death of Shankarrao i.e. 10-2-1995. In view of these circumstances it cannot be said that suit filed in the year 1995 was barred by law of limitation.

33. The discussion made above shows that no arguable case is made out by the the appellants / original defendant Nos.3 and 4. Both the Courts below have given finding against the defendant Nos.3 and 4 on adoption. There is no possibility of interference in the second appeal on such finding.

34. In the result, the appeal stands dismissed. Civil Application No.8799 of 2013 stands disposed of.

Appeal dismissed.