ivil Appeal No 2116 of 1972
From the Judgment and Order dated 121971 of the Madhya Pradesh High Court at Jabalpur in SA 517 of 1969
SP Singh for the Appellants
Uday U Lalit and AG Ratnaparkhi for the Respondents
The Order of the Court was delivered by OZA J
This appeal arises out of the Judgment dated 121971 of the High Court of Madhya Pradesh in Second Appeal No 5 1769 wherein the learned Judge of the High Court dismissed the Second Appeal filed by the present appellant
146 The present appellant filed a suit for injunction and possession on the basis of a registered sale deed dated 28466 executed by Smt
Yashoda Bai in his favour with respect to immovable property including agricultural lands and houses
The property originally belonged to her husband and after his death she got it as a limited owner and by influx of time and by coming into force of the  she acquired the rights of an absolute owner
On 28463 she adopted respondent Nain Singh as her son and executed a document said to be the Deed of Adoption
This document is not a registered document and the trial court admitted it in evidence in proof of adoption
This document in addition to recital of the factum of adoption in presence of Panchayat in accordance with the custom of the Community also contained a covenant wherein she had stated that after this deed of adoption her adopted son will be entitled Hakdar to the whole property including movable and immova ble and she will have no right to alienate any part of the property after this deed of adoption
The trial court decreed the suit
The first appellate court dismissed the suit setting aside the decree passed by the trial court
The learned judge of the High Court consid ering the impact of section 12 of the Hindu Adoptions and Mainte nance Act rightly held that the adopted son in view of the proviso C to section 12 will only be entitled to property after the death of the adoptive mother but the learned judge felt that the further covenant in the adoption deed deprived her of that right and conferred that right on the adopted son on this basis the learned judge of the High Court came to the conclusion that the widow after executing this deed of adoption had no right left in the property and therefore a transfer executed by her will not confer any title on the plaintiff
It is on this basis that the High Court main tained the Judgment of the lower appellate court dismissing the suit of the plaintiffappellant
Against this by Special leave this appeal has come to this Court
Learned counsel for the appellant contended that the document which is described as a deed of adoption in sub stance is in two parts
One recites the facturn of adoption and the second contains the covenant wherein she has relin quished her rights in the property and conferred rights on adopted son
According to the learned Counsel so far as it refers to adoption the courts below were right in admitting the document as an evidence of adoption but so far as it refers to a deed of relinquishment or conferment of right on the adopted son will be hit 147 by section 171b read with section 49 of the Indian and therefore the High Court was not right in relying on this clause to come to the conclusion that the widow Smt
Yashoda Bai had no right to transfer the property in favour of plaintiff appellant
Section 12 of the reads as follows 12
Effects of adoption An adopted child shall be deemed to be the child of his or her adoptive father of 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 served 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 obliga tions 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
 Proviso C of this Section departs from the Hindu General Law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him on her before the adoption
It is clear that in the present case Smt
Yashoda Bai who was the limited owner of the property after the death of her husband and after came into force has become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be de prived of any of her rights in the property
The adoption would come into play and the adopted child could get the rights for which he is entitled after her 148 death as is clear from the Scheme of section 12 proviso C
section 13 of the Hindu Adoption and Maintenance Act reads 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 inter vivos or by will
This Section enacts that when the parties intend to limit the operation of proviso C to section 12 it is open to them by an agreement and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in section 13 of the Hindu Additions and Maintenance Act
Section 171b of the clearly pro vides that such a document where any right in movable property is either assigned or extinguished will require registration
It could not be disputed that this part of the deed which refers to creation of an immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of section 171b and therefore under section 49 of the  this could not be admitted if it is not a registered document
Unfortunately the Hon ble Judge of the High Court did not notice this aspect of the matter and felt that what could not be done because of the proviso c to section 12 has been specifically provided in the document itself but this part of the document could not be read in evidence as it could not be admitted
In view of this the appeal is al lowed
The Judgments of the High Court and that of the lower appellate Court are set aside and that of the trial court is restored
In view of these special circumstances there is no order as to costs
NPV Appeal allowed


Summary:
Section 13A of the East Punjab Urban Rent Restriction Act 1949 lays down the procedure for a specified landlord  to seek immediate recovery of possession of his residential building at any time within one year prior to or within one year after the date of his retirement or after his retire ment but within one year of the date of commencement of the East Punjab Urban Rent Restriction Amendment Act 1985 whichever is later
Section 2hh of the Act defines speci fied landlord  to mean a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State
The appellant who was holding a post in connection with the affairs of the State had retired on September 30 1981
He was member of a Mitakshara family
The house in question was tenanted out to the respondent by his father in July 1982 and upon his father dying in the following month the tenant attorned to the appellant
The amendment came into force with effect from November 16 1985
The appellant applied for eviction on May 13 1986
He sought benefit of the special procedure laid down in section 13A of the Act on the ground that all the ingredients of the definition of speci fied landlord  were satisfied
The courts below rejected the contention
The High Court relying on the ratio laid down by this Court in DN Malhotra vs Kartar Singh 1988 1 SCC 656 and Mrs Winifred Ross vs Mrs Ivy Fonseca 1984 1 SCC 288 held that the appellant could not be a specified land lord 
Dismissing the appeal by special leave HELD Until the landlord satisfies the test that he was a landlord qua the premises and the tenant at the time of his retirement or dis 94 charge from service
he can not be a specified landlord  as defined in section 2hh of the East Punjab Urban Rent Restric tion Act 1949
98F 94F In the instant case the appellant was not the landlord of the premises in question before he superannuated
He would not therefore be entitled to the benefit of the special procedure laid down in section 13A of the Act
99A B DN Malhotra vs Kartar Singh 1988 1 SCC 656 and Mrs Winifred Ross vs Mrs Ivy Fonseca 1984 1 SCC 288 ap plied