Bombay High Court
Tanaji Rau Kurlekar vs Sonubai on 18 October, 1994
Equivalent citations: I(1995)DMC661
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT S.D. Pandit, J.
1. Tanaji Rau Kurlekar plaintiff in Regular Civil Suit No. 393 of 1974 on the file of III Joint Civil Judge, Junior Division, Satara, has come before this Court in Second Appeal.
2 One Rau Kurlekar of village Mhasave, Taluka Kondawe, Nune, died in the year 1942 leaving behind him his widow Babai and three daughter Sonubai, Gangubai and Girajabai. The present appellant Tanaji is a genetive son of Gangubai. On 8th June, 1963 this Tanaji, who is the appellant herein, was taken in adoption by Babai and on the 8th June, 1963 a deed of adoption took place and it was also registered. The appellant had initially filed a suit through his natural father and guardian against his adoptive sister Sonubai and heirs of Girajabai to get a partition and separate possession of his 1/2 share in the suit property. After the death of his adoptive mother, Babai on 21st February, 1972 he amended his plaint and claimed possession of the entire suit property and retained his prayer of partition and separate possession of half share as an alternative relief. It was his claim that after his adoptive mother had filed Misc. Application No. 9 of 1967 in the District Court of Satara, by the order dated 28th July, 1968 his natural father was appointed as a guardian of his person and the Court of Wards was appointed as guardian on the suit property. It was his further contention that defendants 2, 3 and 4 had obtained fraudulent, sham and bogus sale-deeds from Babai and defendant No. 1 and Babai had also executed a sham and bogus gift deed on 25th March, 1969 in favour of defendant No. 1 Sonubai.
3. The defendant No. 1 contested the claim of the appellant plaintiff by filing written statement at Exh. 24 and additional written-statement at Exhibit 63. The defendant No. 1 contended that the plaintiff was not at all adopted by her mother Babai and her mother Babai during her own lifetime had disputed the adoption of the plaintiff. According to defendant No. 1 the adoption deed was obtained by plaintiff's mother Gangubai and her husband by practising fraud on Babai. Similarly, the consent of Babai was also obtained for partition by practising; fraud and BY MISREPRESENGITN her and though the said order was passed, the Court of Wards i.e. the Collector had never taken possession of the property in question. She further contended that the gift deed executed by her mother in her favour on 25th March, 1969 was rightly executed. She also contended that defendant 2, 3 and 4 got the bonus sale deeds executed in their favour from her as well as from her mother. Thus, she disputed the plaintiff's claim as well as the transfer of the property in favour of defendants 2, 3 and 4.
4 The defendant No. 2 contested the claim of the plaintiff by filling written-statement at Exh. 25 He also challenged the adoption of the plaintiff and contended that the sale deed executed in favour of defendants 3 and 4 were quite bonafide and valid ones and that they were bonafide purchasers for value. The defendant No. 2 further contended that the plaintiff's claim was barred by the law of limitation. Thus, the defendants contended that the plaintiff's suit be dismissed with costs.
5. The defendants 3 and 4 have adopted the contentions raised by the defendant No. 2 by filing Pursis, at Exh. 26. The defendant No. 5 had also challenged the adoption of the plaintiff by filing his written-statement at Exhibit 31.
6. In view of the rival pleadings, the Trial Court had settled as many as 22 issues at Exh. 32 and recorded evidence for both the sides. The Trial Court found that the plaintiff was duly adopted by Babai, but the Trial Court did not accept the contention of the plaintiff that he had become the absolute owner of the suit property as Babai bad relinquished her rights in the said property. The Trial Court found that Babai had become absolute owner of the suit property. The Trial Court further held that Babai could not have gifted the property in favour of defendant No. 1 as it was the ancestral property. The Trial Court found that the suit of the plaintiff was within limitation. The Trial Court further held that the plaintiff has got 1/2 share in the properties of Block Nos. 992, 993 and 218. The Trial Court, therefore, passed a decree for partition in favour of the plaintiff as against those two lands and dismissed his all other claims.
7. Being aggrieved by the decision of the Trial Court, the original defendant No. 1 preferred an appeal being Civil Appeal No. 181 of 1980 in the District Court at Satara. The said appeal was heard by the Extra Assistant Judge of Satara. The learned first Appellate Judge of Satara agreed with the finding of the Trial Court that the adoption deed in question did not confer any title of the suit upon the appellant-plaintiff. The learned Appellate Judge also found that the plaintiff was not entitled to get any share in any of the suit properties including the two lands by rejecting the cross-objections filed by the appellant and he allowed the original defendant No. 1's Appeal No. 181 of 1980 by his judgment and decree dated 28th December, 1981.
8. Being aggrieved by the said decision of the first Appellate Court, the original plaintiff, has come in second appeal before this Court. The learned Advocate for the appellant urged before me that in view of the provisions of Section 13 of the Hindu Adoptions and Maintenance Act, 1936, the contents of the adoption-deed at Exh. 87 should be construed. According to him, the said document clearly shows that Babai had relinquished her right, title and interest in the property in question in favour of the appellant Tanaji and Tanaji had become the absolute owner of the property in question. The Trial Court as well as the first Appellate Court have held that the present appellant Tanaji was validly adopted by Babai on 7th June, 1963 and finding of fact will have to be accepted and it is not also seriously challenged before me.
9. Admittedly, Babai's husband had died in the year 1942 and the adoption in question has taken place on 7th June, 1963 and in the meantime the Hindu Adoptions and Maintenance Act, 1956 came into force in the year 1956. If the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 are considered, then it will be quite clear that the said provisions clearly lay down that where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. It must be remembered that Rau was the last male coparcener of the family and he died in the year 1942 leaving behind his widow Babai and three daughters. After the provisions of Hindu Succession Act, in 1956 came into force, by virtue of Section 14. Babai had become the absolute owner of the property in question. It must be remembered that by virtue of the provisions of Section 14 of Hindu Succession Act, 1956, the property in question bad not vested in her, but she had become the absolute owner of the property which was in her possession. Therefore, once she has become the absolute owner of the property in question, merely because she has taken appellant Tanaji in adoption, she would not lose her ownership to the property which has become of her absolute ownership, No doubt. Section 13 of the Hindu Adoptions and Maintenance Act, 1956 is making the following provision :
"13. Right of adoptive parents to dispose of their properties : Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer later vivas or by will."
If the above provisions of Section 13 are considered, then it is quite clear that the absolute ownership of the father or the mother to transfer the property Inter vivas or by Will could come to an end only by an agreement to the contrary. Therefore, when a person wants to claim that the adoptive mother has lost her ownership to the property and that she has no right to dispose of the said property then be must show that there was an agreement as contemplated by Section 13 of the Hindu Adoptions and Maintenance Act, 1956. The learned Advocate for the appellant urged before me that the said agreement could also be incorporated in the adoption-deed itself. But the agreement as contemplated by Section 13 of the Hindu Adoptions and Maintenance Act, 1956 must be quite clear and it should not be inferred by a stray sentence in the adoption-deed. In the adoption-deep, the following averments in Marathi language are made :
X X X X If the above contents of she said adoption-deed are read, then what is mentioned therein is that Babai has admitted therein that on account of the said adoption, appellant Tanaji will get all the rights which a genetive son would get. He will also have all the powers which a genetive son would have from the date he was taken in adoption by her, and that he too to become the owner of her estate. It is very pertinent to note that she has nowhere said that she has relinquished her rights pertaining to her estate and that since the date of the said adoption deed, he was to become the absolute owner of her estate. Interpretation of a similar term in an adoption-deed is considered by our High Court in the case of Banabai v. Wasudeo, . It has been held in that case that in order to bring a case under Section 13 of the Hindu Adoptions and Maintenance Act, 1956, there must be an independent agreement prior to adoption, by which the widow must have relinquished her rights in the property in question. The contents of the document in the above reported case were exactly similar to the ones found in the document before me.
That would be quite clear from the following observations in para 22, page 188 of the aforesaid reported case.
"22. Now if we turn to the adoption deed and the particular recitals upon which the reliance was placed to spell an ante-adoption agreement, it is difficult to see how these recitals spell an ante-adoption agreement. On the contrary, I am inclined to think that they merely recited the position which upon adoption the adopted son acquired with reference to the adoptive family. There words are :
x x x x Now the first sentence of the aforesaid document does not speak of any agreement either prior to adoption or post adoption. It merely recites the legal position as laid down either under the Hindu Adoption and Maintenance Act or by the Hindu Law, namely, that from the date of the adoption as a result of the adopted son has acquired the status and rights of a natural born son. The following sentence also merely expresses a pious desire and hope of the widow. It does not say that it is agreed that the widow shall have the only right in the property of maintenance and shall not hereafter sell the property or transfer it by way of either of a sale deed or in any other manner or will it away.
No doubt, the Division Bench of our High Court had considered the interpretation of Section 13 as well as Section 12 in the earlier case reported in 1978 Maharashtra Law Journal 129 and in that case on the facts it was held that there was an agreement by which the adoptive mother had relinquished her right, title and interest in favour of the adopted child. In that case there was not only some averment in the adoption-deed but there was an independent agreement between the mother of the child who was to be taken in adoption and the adoptive mother. And, therefore, in view of the existence of the said independent agreement it has been held that the mother had relinquished her rights in the property in favour of the adopted son.
10. The learned Advocate for the appellant further urged before me that apart from the provisions of Section 13, the plaintiff Tanaji would be having 1/2 share in the property in question after his adoption by Babai. According to him, what Babai would get is only the share of her husband and as appellant Tanaji was adopted by Babai he becomes the son of his father and, therefore, he would get 1/2 share in the property. But with due respect to the learned Advocate for the appellant, it must be said that the said submission made by him is not at all proper and justified. After coming into force the provisions of the Hindu Adoptions and Maintenance Act, 1956, Section 12 of the said Act clearly lays down that an adoptive child shall be deemed to be the child of his or her adoptive mother or father for all purposes with effect from the date of the adoption. It must be remembered that on the death of Rau, the property had developed on Babai and in view of the provisions of Section 14 of Hindu Succession Act, 1956 she had become the absolute owner. If the submissions by the learned Advocate for the appellant are to be accepted, then it will have to be held that the half of the property had remained in abeyance from 1942 till the date of adoption. The learned Advocate for the appellant cited before me the case of Dharma v. Pandurang, 1988 Maharashtra Law Journal 273. At the outset, it must be said that the said case is not at all applicable to the facts of the case before me. In that case, the joint family was comparised of deceased's wife and another surviving copacener. In the case before me, on the death of Rau in 1942, no coparcener was surviving and Babai came in possession of the property as widow of the estate and by the provisions of Section 14 of Hindu Succession Act, 1956, she had become the absolute owner. Even if the hand-note of the said case of Dharma v. fandurang (supra) and the facts therein are considered, then it will be quite clear that the same is of no help to the appellant becase in that case what has been held is that after the adoption, the adopted son was given 1/2 share in the property on the date of adoption and it has been also clearly mentioned that the adopted son was entitled to get 1/2 share in the property on the date of partition, because his mother had becouse a widow prior to 1937 and she was not in occupation and possession of the property in her right of maintenance as widow of the deceased's estate and therefore, he was held to be entitled to get 1/2 share as his mother had not become absolute owner of her husband's estate, as she was not governed by the provisions of Section 14 of Hindu Succession Act, 1956. Thus, I am unable to accept the contention raised by the learned advocate for the appellant that Tanaji was entitled to get 1/2 share in the property on account of his adoption by Babai.
11. The learned Advocate for the appellant further urged before me that I should take into consideration that an application was filed to appoint a guardian of the estate other than the person of Tanaji and that application was decided and guardian were appointed in respect of the person as well as properly of the appellant. It must be mentioned here that though it has been contended by the appellant that he had applied for appointment of guardians in respect of his person and property and that there was an order to the same effect, no such order is produced before me to show the same. Now, apart from this, if the written-statement of the defendant is considered, then it would be quite clear that the defendant has not admitted that order and it was contended by the contesting defendants that the said pursis was a fraudulent and collusive pursis filed by the genetive father of the appellant. When that was the specific contention the appellant ought to have sought a decision on that contention of his by the Trial Court as well as by the First Appellate Court by raising the necessary issues to that effect. The appellant does not do so. It is obvious that the appellant was not sticking up to his said pleading, but now he turns round and says that that fact should be taken into consideration by this Court in the second appeal. It is very pertinent to note that even though the appellant had made this pleading, it was nowhere claimed by him that the property in question was ever taken in possession by the Collector of Wards as per the order of the Court. Therefore, in the circumstances the said fact could not be taken into consideration by me in the second appeal.
12. As regards the validity of the Will as well as the sale deed, the finding recorded by the two Courts below could not be said to be perverse or manifestly erroneous. Therefore, (he said finding could not be disturbed in the second appeal. Thus, I hold that the present second appeal will have to be dismissed.
13. In the result, the appeal is dismissed. In the circumstances of the case, I direct the parties to bear their respective costs throughout.