1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 561 OF 2006 Niwarti s/o Kishan Mule, age: 70 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq. Nilanga. Appellant Versus 1 The State of Maharashtra, through the Collector, Latur. 2 The Tahsildar, Nilanga. 3 Gangabai w/o Kishanrao Mule, died: through L.R.: Balaji s/o Kishanrao Mule, age: 40 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga. 4 Bhagwan s/o Vishwambhar Ghotale, age: 80 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga. 5 Shankar s/o Sadhuba Ghotale, died, through L.R.: Vasant s/o Shankar Ghotale, age: 5 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga, District Latur. 6 Venkat s/o Bajirao Ghotale, age: 70 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq. Nilanga. 7 Shivaji s/o Gyanoba Ghotale, 2 age: 60 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga. 8 Manik s/o Bhanudas Ghotale, age: 40 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq. Nilanga. 9 Babruvahan s/o Vishwambhar Rankhamb, age: 40 years, R/o Mudgad Ekoji, Tq.Nilanga. 10 Santram @ Sitaram s/o Vishwanath Rankhamb, age: 35 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga. 11 Smt.Champabai w/o Bhanudas Jadhav, age: 80 years, Occ: Household, R/o Maleghaon (J), Tq.Nilanga. Respondents Mr.B.R.Warma, advocate holding for Mr.Milind Patil, advocate for the appellant. Mr.P.P.More, A.G.P. For Respondents No.1 & 2. Mr.N.D.Kendre, advocate for Respondent No.3. Mr.S.S.Halkude, advocate for Respondents No.4 to 9. WITH SECOND APPEAL NO. 562 OF 2006 Niwarti s/o Kishan Mule, age: 70 years, Occ: Agriculture, R/o Mudgad (E), Tq. Nilanga. Appellant Versus 1 The State of Maharashtra, through the Collector, Latur. 2 The Tahsildar, Nilanga. 3 3 Gangabai w/o Kishanrao Mule, died: through L.R.: Balaji s/o Kishanrao Mule, age: 40 years, Occ: Agriculture, R/o Mudgad Ekoji, Tq.Nilanga. Respondents Mr.B.R.Warma, advocate holding for Mr.Milind Patil, advocate for the appellant. Mrs.R.K.Ladda, A.G.P. For Respondents No.1 & 2. Mr.N.D.Kendre, advocate for Respondent No.3. CORAM: R.M.BORDE, J. DATE : 26th August, 2009. P.C.: 1 These are appeals by original defendant no.3 raising exception to the concurrent judgments delivered by both the Courts below. 2 Original plaintiff Gangabai - Respondent No.1 herein has presented suit bearing R.C.S. No.09/98 claiming declaration of ownership, whereas appellant herein, who was impleaded as defendant no.3 in the suit filed by Gangabai, had presented suit bearing Regular Civil Suit No. 12/98 claiming declaration of ownership in his favour as well as possession of the suit property. 3 The trial Court, after considering evidence of the parties, has held in favour of plaintiff in R.C.S. No.09/98 and decreed the suit in her favour and restrained defendants from causing interference in her possession. Suit presented by appellant herein bearing R.C.S. No.12/98 4 came to be dismissed by the trial Court. There were two appeals raising exception to the decree passed by the trial Court at the instance of appellant herein. Both the appeals also came to be dismissed by the first appellate Court. 4 I have perused the judgments delivered by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 5 Appellant herein claims his entitlement to the property on the basis of adoption. It is his contention that he has been adopted by Gangabai, plaintiff in R.C.S. No.09/98 and as such, he is entitled to claim the property. Issue in respect of validity of alleged adoption is held against the appellant by the trial Court and finding of fact recorded by the trial Court has been confirmed by the first appellate Court. While dealing with the issue, the Courts below have considered entire evidence placed on record, oral as well as documentary. The registered deed of adoption placed on record by appellant herein to substantiate his claim in respect of adoption has not been accepted by the Courts below. Considering the subsequent conduct as well as surrounding circumstances, the Courts below have come to the conclusion that the appellant has failed to substantiate his contention that he is the adoptive son of Gangabai. The first appellate Court has recorded a finding that the adoption, alleged to have taken place, is prior to coming into force of Hindu Adoption and Maintenance Act, 1956 and as such, case is covered by Shastrik law. As per the Shastrik law, one of the requirement for proving adoption is performance of necessary ceremonies. A finding has been 5 recorded by the first appellate Court that the appellant has failed to establish performance of necessary ceremonies to prove valid adoption. It has also been recorded on the basis of admission given by the appellant in cross-examination that there is difference of hardly five years of age between adoptive mother and adoptive son. A reference is made to the judgment in earlier proceedings i.e. R.C.S. No.232/1 of 1953-54i. It is recorded in the judgment that suit was presented by Gangabai raising challenge to the adoption of Nivratti - the appellant. A finding is recorded in the said suit that appellant - Nivratti has failed to establish the alleged adoption. In R.C.S. No.232/1 of 1953-54, question of validity of adoption of Nivratti was the matter of challenge. A finding has been reached in the said suit, that Nivratti has failed to prove his adoption by Gangabai. The suit was stated to have been filed by one Pandurang against Gangabai and Kishan claiming that Pandurang was adopted son of Kishan. Nivratti, present appellant claimed that he is adoptive son of Kishan Mule and Gangabai. The appellant has failed to prove his contention in the said suit that he is adoptive son of Gangabai. Although it is noted in the judgment by the first appellate Court that copy of judgment in R.C.S. No.232/1 of 1953-54 is placed on record, however, on perusal of the record of first appellate Court, said copy of the judgment, alleged to have been placed on record, was not found. 5 It is contended by learned Counsel for Respondents that the factum of presentation of the suit and decision therein has not been controverted by appellant-Nivratti. However, the fact remains that although reference is made in respect of judgment in earlier proceedings i.e. R.C.S. No.232/1 of 1953-54, copy thereof does not find place in the 6 record. However, there are other aspects which do not persuade me to accept the case put up by the appellant. The first appellate Court has considered the subsequent conduct of adoptive son and has reached a conclusion that in view of circumstances brought on record, it cannot be held that there was valid adoption of Nivratti by Gangabai. In the cross examination of adoptive son, he has fained ignorance as to how many daughters Limbabai had i.e. sisters of Kishan Mule. He did not know names of sisters of Kishan Mule as Laxmibai and Shantabai. He has further stated in the cross examination that Kishan Mule died six months before adoption. However, Kishan Mule died long back i.e. in or about 1351 fasli while alleged adoption had taken place in 1355 fasli. He has also admitted that he does not know relation of his natural parents with Gangabai. He has admitted in his deposition that he has signed on the adoption deed, however, his signature does not appear on the same. The subsequent conduct of appellant, after his adoption, is also quite indifferent and, therefore, the courts below have reached the conclusion that case in respect of alleged adoption does not appears to be trustworthy. After adoption, appellant did not change his name and he continued to bear his natural father's name and surname. In the voters' list at Exhibit-115 his name is shown as “Niwrati Madhav Patil". He has also contested the election and was elected as member of Killari Cooperative Sugar Factory and his name appears in the record as Niwrati Madhavrao Patil. He has also admitted to have received benefits from Government as an earthquake affected person and he had put his name in the record as Niwrati Madhav Rankhamb. The children of Nivratti are taking education. However, they posed their surname as Rankhamb and not Mule, which is the surname of his adoptive father. After death of Kishan 7 Mule, Limbabai and her daughters, who are sisters of Kishan Mule, named Laxmibai and Shantabai had obstructed possession of Gangabai and there was litigation between them. However, appellant does not appear to have filed intervention application nor has rendered any assistance to Gangabai. 6 Apart from these aspects, Gangabai was not looked after by appellant. She had, immediately after alleged adoption, filed objection before the revenue authorities denying alleged adoption. Sanction of revenue entries in the name of appellant was opposed by Gangabai. The first appellate Court has also recorded a finding that the appellant Nivratti has succeeded to the joint family property of his natural father, which has not been controverted by the appellant. The appellate Court has referred to the mutation entries no.146 and 348 which are sanctioned in the name of Niwratti in respect of property belonging to his natural father. The entries, appeared to have been recorded by the revenue authorities, are on the basis of partition, alleged to have been effected by his natural father and those were stated to have been sanctioned on 26.02.1981. The appellant has also admitted that he did not maintain Gangabai after alleged adoption. On the contrary, he alleged that Gangabai was having illicit relations with Maruti Rankhamb and as such, his relations with adoptive mother were strained. 7 In these circumstances, the first appellate Court was justified in rejecting the case put up by Niwratti as regards his adoption by Gangabai. I do not find any infirmity in the reasons recorded by the first appellate Court. No substantial question of law arises for consideration in 8 the appeals. 8 Appeals are, therefore, dismissed. (R.M.BORDE) JUDGE ******* adb/sa56106 IN THE HIGH COURT OF JUDICATURE OF BOMBAY 9 BENCH AT AURANGABAD CIVIL APPLICATION NO.3311 OF 2009 WITH CIVIL APPLICATION ST.NO.5297 OF 2009 IN SECOND APPEAL NO.561 OF 2006 Niwarti s/o Kishan Mule Applicant Versus The State of Maharashtra and others Respondents Mr.B.R.Warma, advocate holding for Mr.Milind Patil, advocate for the applicant. Mr.P.P.More, A.G.P. For Respondents No.1 & 2. Mr.N.D.Kendre, advocate for Respondent No.3. Mr.S.S.Halkude, advocate for Respondents No.4 to 9. CORAM: R.M.BORDE, J. DATE : 26th August, 2009. P.C.: These are applications for bringing on record legal representative of deceased Respondent No.5 as well as for condonation of delay occurred in preferring the application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the applications, applications deserve to be allowed and same are allowed. Delay of 973 days occurred in presenting the application for bringing on record legal representative of deceased Respondent No.5 is condoned. Legal representative of deceased Respondent No.5 is permitted to be brought on record. Record be amended accordingly. Civil Applications stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa56106