ash 1 sa.362.11jt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.362 OF 2011 Vasant Gopal Patil & Anr. .. Appellants Vs Prakash Baburao Patil & Others. .. Respondents ­­ Shri P.R. Arjunwadkar for the Appellants. Shri V.S. Talkute for Respondent No.1. ­­ CORAM : A.S. OKA, J DATED : 7TH DECEMBER, 2011 P.C. . Heard learned counsel appearing for the Appellants and the learned counsel appearing for the first Respondent. 2. The Appellants are the second and third Defendants. In a suit filed by the first Respondent, the Appellants have been also impleaded in their capacity as the legal representatives of the fourth Defendant. The suit pertains to certain lands and house properties situated at village – Kadgaon, Taluka – Gadhinglaj, District – Kolhapur. The case made out by the first Respondent/Plaintiff is that he suit property was owned by one Smt. Avubai Baburao Patil and she was in ash 2 sa.362.11jt possession of the suit property. It appears that the said Avubai filed a suit against the first to third Defendants in the present suit. The first to third Defendants in the present suit are brothers­in­law of the said Avubai. The said suit was for partition. There was a consent decree passed in the said suit. The allegation is that the suit property was allotted to the share of the said Avubai under the said consent decree. The consent decree contains a clause that after demise of the said Avubai, the property would fall back to the present first to third Defendants or their heirs. The said compromise decree was passed in the year 1973. The case of the first Respondent/Plaintiff is that he was adopted by the said Avubai as her son on 12th December, 1980 and a deed of adoption was executed on the same day which was registered on 25th February, 1981. It was contended that the clause in the consent decree that after demise of Avubai, the suit property would go back to the first to the third Defendants was illegal and in contravention of Sub­ section (1) of Section 14 of Hindu Succession Act, 1956 ( hereinafter referred to as “the Succession Act”). The contention is that Avubai had become absolute owner of the suit property and that is how the first Respondent being the adopted son inherited the property after the demise of the said Avubai. 3. The original first Defendant supported the case of the first Respondent. The present Appellants (first and second Defendants) filed ash 3 sa.362.11jt a Written Statement. They denied the fact that there was any adoption. It was contended that at the relevant time, Avubai was suffering from paralysis and was unable to speak. It was alleged that Avubai was admitted to a hospital. It was contended that the relevant clause in the consent decree is tantamount to a Will by which a bequest of the suit property was made by the said Avubai during her lifetime to the first to third Defendants herein. It was contended that the suit is hit by the principles of res judicata. 4. The Trial Court held that the first Respondent has failed to prove that he was lawfully adopted by the deceased Avubai. It was held by the Trial Court that as the first Respondent has failed to prove his status as an adopted son, he has failed to prove his exclusive title. It was held that the first Respondent had no locus standi to challenge the consent decree passed in the year 1973. 5. An Appeal was preferred by the first Respondent. The Appellate Court has interfered with by decree of the Trial Court by holding that the adoption was valid. The Appellate Court held that the clause under the consent decree regarding the property coming back to the first to third Defendants was in violation of Sub­section (1) of Section 14 of the Succession Act and in fact, Avubai became the absolute owner on the basis of the said consent decree. The Appellate ash 4 sa.362.11jt Court by holding that Avubai had become the absolute owner accepted that the first Respondent being the adopted son of Avubai became the owner. The Appellate Court passed a decree for possession. 6. Learned counsel appearing for the Appellants invited the attention of the Court to the findings recorded by the Appellate Court on the proof of adoption. He also invited attention of the Court to the findings of the Trial Court. He submitted that the finding of the Trial Court that the case of adoption and the execution of the Deed of Adoption was highly suspicious is based on the oral as well as documentary evidence on record. He submitted that the finding of the Appellate Court on this aspect is perverse. He submitted that the consent decree is dated 2nd May, 1973 and, therefore, the suit filed by the first Respondent on 5th August, 1983 in substance seeking a declaration of illegality was barred by limitation in view of Article 58 of the schedule to the Limitation Act, 1963. He pointed out that the said Avubai died on 9th October, 1982 and the said avubai did not challenge the consent decree passed in the year 1973 during her lifetime. He submitted that neither the said Avubai nor the first Respondent took any step for getting the said consent decree set aside. As regards the applicability of Section 14(1) of the Succession Act, he submitted that in fact the case would be governed by Sub­section(2) of Section 14 of the Succession Act and, therefore, the deceased Avubai did not become ash 5 sa.362.11jt exclusive owner and the property came back to the first to third Defendants who became the absolute owners thereof. His submission is that the judgment of the Appellate Court is perverse. 7. As far as the bar of limitation is concerned, it must be noted here that one of the averments made in the Plaint is that in view of Section 14(1) of the Succession Act, the said Avubai acquired absolute ownership in respect of the suit property and, therefore, the consent decree was void. Apart from this, the first Respondent sought decree for possession. 8. The contention of the first Respondent is that the suit property was specifically given to the said Avubai as per Clause (4) of the consent decree in lieu of maintenance during her lifetime. In view of this clear recital, sub­section (1) of Section 14 of the Succession Act will be squarely applicable as Avubai was in possession in lieu of her right of maintenance. The Appellate Court has held that Avubai became the absolute owner of the property 9. If it is held that Avubai became the absolute owner, it was not necessary for the first Respondent to even challenge the consent decree inasmuch as by operation of law the said Avubai had become the absolute owner and the consent decree cannot have the legal effect of ash 6 sa.362.11jt divesting the right of ownership in Avubai. 10. It must be noted here that the consent decree has been filed in a suit for partition filed by the said Avubai in the year 1973. Clause (4) of the consent decree records that the property allotted to the shares of the said Avubai ( the Plaintiff in the suit ) and Gopal (first Defendant in the suit ) was to be enjoyed by them during their life time. In fact, the consent decree records the partition between Avubai and the first Defendant herein (Gopal) and the Clause (4) further records that both Avubai and the first Defendant therein were to enjoy the properties allotted to their share in their respective lifetime. There is a statement in the consent decree that the suit properties have been allotted in lieu of maintenance. Further clause is that on their demise, the property will go to the present Appellants viz. Vasant and Shamrao along with one Suryakant Ganpat Paril, who was the second Defendant in the earlier suit as heirs of the Plaintiff Avubai and the first Defendant (Gopal). Thus, reference in Clause (4) to the said Avubai and Gopal enjoying the property during their life time is in the context of further part of clause (4) which provides that after their demise, the Defendant Nos.2 to 4 in the said suit will become their heirs and they will take their property as heirs. Clause (4), if read as a whole, cannot be interpreted to mean that only a life estate is created in favour of Avubai. Thus, the suit property was received by Avubai as an absolute ash 7 sa.362.11jt owner. The decree provides that after her demise, the property will be inherited by the three persons (the present Appellant and Suryakant). Heirship cannot be conferred by a decree in contravention of law of succession. It is pertinent to note that by amending the written statement, it was contended that Avubai had relinquished her rights by a consent decree in favour of the present first to third Defendants. 11. As stated earlier, Clause (4) purportedly states that the third to fifth Defendants in the suit filed by Avubai will take the property as heirs. There was no relinquishment by Avubai as there is no reference to relinquishment in the consent terms. Moreover, the relinquishment could have been made only by a registered instrument. The consent terms cannot be construed as a Will as there is no attestation as contemplated under the Indian Succession Act, 1925. In the circumstances, the argument that either the said Avubai had life interest or that after her demise the third to fifth Defendants in the suit filed by Avubai had inherited the said property cannot be accepted. 12. Now the only point remains is regarding the validity of adoption made by Avubai. The Appellate Court has relied upon Section 16 of the Hindu Adoptions and Maintenance Act, 1956 ( hereinafter referred to as “the said Act of 1956” ) which creates a presumption. The presumption is that whenever a registered document is produced ash 8 sa.362.11jt before the Court purporting to record an adoption made and is signed by the person giving in and the person taking in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act of 1956 unless and until it is disproved. The Appellate Court has considered the evidence of the witnesses examined by the Plaintiff. The Appellate Court has considered the evidence of Priest Keshav Raghunath Dandage, the attesting witness and Shri J.B. Bardeskar as the witness. The witness J.B. Bardeskar stated that the Deed of Adoption was executed in his presence. The witness J.B. Bardeskar was a Head­Master at the relevant time and he knew Avubai. He deposed about the adoption ceremony in Datta Temple on 12th December, 1980. He identified the signatures of all concerned on the document and he stated that the thumb impression was affixed by Avubai in his presence. 13. The Deed of Adoption was registered on 25th February, 1981 when Avubai was admitted to the hospital of Dr. Modi at Gadhinglaj. The Sub­Registrar of Assurances was called to the hospital for the purposes of registration of the Deed of Adoption. Therefore, the Appellate Court recorded a finding of fact that execution of Deed of Adoption by the person giving in adoption and the person taking in adoption was proved and in view of the presumption under Section 16 of the said Act of 1956, the burden was on the present Appellants to ash 9 sa.362.11jt prove that the adoption was not made in compliance with the provisions of the said Act of 1956. There is no reason to find fault with the findings of fact recorded by the Appellate Court. Once the execution of document by a person giving in adoption and a person taking in adoption was proved and the registration of Deed of Adoption was proved, the presumption under Section 16 of the said Act of 1956 was clearly applicable. The finding of fact is that the Appellants have not disproved the adoption by way of rebuttal to the presumption under Section 16 of the said Act of 1956. 14. Hence, no substantial question of law arises. The Appeal is accordingly dismissed with no order as to costs. 15. Civil Application No.896 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )