1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.275 OF 1991 Vithal Kallappa Naik, Decd., Thru’ Basagonda Vithal Naik & Ors. .. Appellants V/s. Krishna Bhimappa Naik & Anr. .. Respondents Mrs. Deepa Ahuja i/b. Mr. V.B. Naik for the Appellants. Mr. A.M. Kulkarni for the Respondents. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 19 TH MARCH, 2010. PRONOUNCED ON : 1 ST APRIL, 2010. JUDGMENT : 1. The appellants in the present Second Appeal have challenged the Judgment and Order of the Additional District Judge, Sangli in Regular Civil Appeal No.135 of 1983 decided on 21st September, 1990. 2. The facts involved in the present Second Appeal are as follows :- 2 3. Bhimanna, Revanna and Namdeo were brothers and the sons of Gurappa. Revanna separated from the family many years prior to his death i.e. in 1918. The exact date of the death of Bhimanna is not known, but he expired some time between 1957 and 1958. His wife Kashibai adopted the plaintiff on 6th February, 1961. Namdeo adopted Babu, i.e. defendant No.1, in 1958. 4. On 10th April, 1958, Survey No.340/1A, admeasuring 1 Acre 20 Gunthas, i.e. one of the suit properties, was sold by Namdeo and Babu jointly to defendant No.2 i.e. the original appellant No.1 herein. Thereafter, Babu sold the southern portion of Survey No.340/1B, admeasuring 2 Acres to defendant No.6 on 30th March, 1968. The northern part of the same Survey No.340/1B, admeasuring 4 Acres 37 Gunthas was sold by Kashibai to Babu on 27th June, 1968. Babu sold an additional area to defendant No.6 on 13th November, 1968 and 7th April, 1969 by registered Sale Deeds. He then sold a part of Survey Nos.340/1B and 1A/1 to defendant No.3, who in 3 turn sold part of it to defendant Nos.4 and 5 by separate registered Sale Deeds. 5. The plaintiff, i.e. respondent No.1 herein, filed Regular Civil Suit No.10 of 1978 for partition and separate possession of joint family properties before the Civil Judge, Junior Division, Jath. He claimed that he was entitled to ½ a share of the suit properties from Babu i.e. defendant No.1. Babu did not contest the Suit. However, defendant Nos.2, 3, 6 and 7, who purchased various parcels of land out of the suit properties from Babu, contested the Suit. Similarly, defendant Nos.4 and 5, who were purchasers of the suit properties from defendant No.3, also contested the Suit. 6. The main contention of the plaintiff was that the suit properties were joint family properties in the hands of Bhimanna and Namdeo, as they were their ancestral properties. The plaintiff claimed that being an adopted son of Kashibai, the widow of Bhimanna, he was entitled to a share in the suit properties. He 4 contended that his adoption would relate back to the date of death of Bhimanna. The plaintiff claimed that the cause of action had arisen in May, 1977, when the defendants had denied his rights. He, therefore, claimed ½ of the suit properties and contended that the Sale Deeds executed by Babu and the other defendants were not binding on him. 7. In his written statement defendant No.2 denied that Bhimanna and Namdeo continued to be members of a joint family after Revanna had separated from the family in 1918. It was contended that the ancestral lands had been partitioned and Namdeo and Bhimanna had been put in possession of their respective shares. Defendant No.2 contended that Bhimanna had sold his house (one of the suit properties) during his life time to one Shivgonda Sangoda Patil and it was purchased by defendant No.2 from this person on 19th June, 1998 by a registered Sale Deed. The other defendants contested the Suit by adopting the same contentions of defendant No.2. They contended that they were bonafide purchasers of the land for value 5 without notice and, therefore, the plaintiff could not question their right to the land. In short, all the defendants denied that the suit properties were joint family properties and contended that the partition between Bhimanna and Namdeo had occurred long prior to the adoption of the plaintiff and that the defendants were bonafide purchasers for value without notice. 8. The trial Court framed several issues and dismissed the Suit. The trial Court held that the plaintiff had failed to prove that the suit property was joint family property of Bhimanna and Namdeo. The trial Court, therefore, concluded that although the plaintiff was an adopted son of Kashibai, he was not entitled for ½ the share of the suit properties. The trial Court also held that the defendant Nos.2 to 6 were bonafide purchasers of the suit lands for value without notice and, therefore, the registered Sale Deeds executed by defendant No.1 with the other defendants were binding on the plaintiff. However, as regards defendant No.7, the trial Court held that he was not a bonafide purchaser and that he was not 6 entitled to claim ownership of the suit land on the basis of adverse possession. The trial Court further concluded that the sale between Kashibai, i.e. the adoptive mother of the plaintiff, and Babu, the adopted son of Namdeo, was valid. 9. Being aggrieved by the decision of the trial Court, the plaintiff preferred Regular Civil Appeal No.135 of 1983 before the District Court, Sangli. That Appeal was allowed and the Suit filed by the plaintiff was decreed. The Appellate Court reversed the finding of the trial Court that the suit property was not joint family property in the hands of Namdeo and Bhimanna. The Appellate Court therefore concluded that, on the basis of the documents produced on record, it could safely be presumed that Bhimanna and Namdeo continued to be members of the joint family and held the suit properties jointly. On this basis, the Appellate Court held that Kashibai could not have sold her share of the suit property to Babu, who then sold it to the defendants. The trial Court also held that Babu had no authority to sell the suit property to the 7 other defendants without the consent of either Kashibai or the plaintiff as members of joint family, as it was joint family properties. 10. The substantial questions of law which are involved in the present dispute are as under : (a). Whether the son adopted by the widow, who inherits property from her deceased husband, can claim a share in the suit property or divest his adoptive mother of the suit property ? (b). Whether in view of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956, the adopted son has a right to challenge the alienation made by his adoptive mother in the absence of any ante adoption agreement, as contemplated under Section 13 of the said Act ? 8 (c). Whether the Sale Deeds executed by the mother of the plaintiff and the defendant No.1 can be declared to be not binding on the plaintiff when he had not challenged the validity of the Deeds ? (d). Whether by virtue of Section 14 of the Hindu Succession Act, 1956, Kashibai became the owner of the suit properties inherited from her husband and, therefore, had a right to dispose it of in the manner she desired even after the plaintiff was adopted ? 11. Mrs. Ahuja appearing for the appellants has submitted that the Appellate Court has committed grave injustice by ignoring the provisions of Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956 as also Section 14 of the Hindu Succession Act, 1956. She 9 submits that the plaintiff was adopted by Kashibai only in 1961. Therefore, Kashibai had succeeded to Bhimanna’s property exclusively on his death since Bhimanna and Namdeo were not members of a joint family. According to the learned Counsel, the adoption of the plaintiff would not divest Kashibai of the properties that she had already acquired prior to the adoption and, therefore, she submits that the plaintiff could not question the alienation of the land by Kashibai. She further points out that the registered Sale Deed between Kashibai and Babu was never challenged by the plaintiff at any point of time. She submits that since this sale had been accepted by the plaintiff, the question of Babu seeking his consent for the sale of lands to the other defendants or giving him a share from the sale proceeds does not arise. She further points out that the sale between Kashibai and Babu had taken place on 27th June, 1968, after the registered Sale Deeds were executed in favour of some of the defendants. She further points out that when Namdeo and Babu jointly 10 sold part of the suit lands to defendant No.2 by registered Sale Deed dated 10th April, 1958, neither Bhimanna, in case he was alive, nor Kashibai, his widow, ever objected to this sale. She, therefore, submits that the plaintiff has no right to challenge the sale after 20 years of it being executed. The learned Counsel submits further that unless there is a pre-adoptive agreement, as envisaged under Section 13 of the Hindu Adoptions and Maintenance Act, 1956, the adopted child is not entitled to divest the property which falls to the share of his adoptive parents. The learned Counsel has relied on the Judgments of this Court in the case of Banabai & Ors. vs. Wasudeo, reported in AIR 1979 Bom. 181, and of the Full Bench of this Court in the case of Kesharbai Jaganath Gujar vs. The State of Maharashtra & Ors., reported in AIR 1981 Bom. 115. 12. Mr. Kulkarni appearing for the respondent- plaintiff submits that the adoption of the plaintiff by Kashibai relates back to the date of the death of Bhimanna. He further submits that in this situation, 11 the property must be considered as joint family property as the plaintiff would be one of the co- parceners in the property. He further submits that the status of joint family property continued as Kashibai could not claim any vested right in the joint family property. He points out that although Bhimanna died some time between 1957-1958 and Kashibai had adopted the plaintiff in 1961, there was no material on record to establish that the suit property was not held as joint family property. He submits that unless there are pleadings on record or evidence to the effect that the property was under the exclusive ownership of Kashibai, it must be deemed to be joint family property. He further submits that the Supreme Court in the case of Krishnamurthi Vasudeorao Deshpande and Anr. vs. Dhruwaraj, reported in AIR 1962 Supreme Court 59, has held that as a preferential heir, an adopted son divests his mother of the estate of his adoptive father. He then relies on the ratio of the judgment of the Supreme Court in the case of Vasant and Anr. vs. Dattu and Ors., reported in (1987) 1 SCC 160, which is 12 reiterated in the case of Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe and Ors., reported in (1988) 2 SCC 126. 13. The facts in the present case are not in dispute. The plaintiff was adopted in 1961 by Kashibai after the death of her husband Bhimanna some time between 1957-1958. Kashibai had sold a plot of land in 1968 to Babu who was the adopted son of her brother in law Namdeo. A property was sold by Babu and Namdeo to defendant No.2 by registered Sale Deed in 1958. That sale was never challenged by Kashibai. After the plaintiff was adopted by Kashibai, Babu sold several parcels of land to defendant No.6. All these sales between Babu and the other defendants had occurred between the period 1958 and 1977. Kashibai had not challenged any of these sales. The suit for partition was instituted by the plaintiff only in 1978. Although the plaintiff had pleaded that the suit properties were joint family properties, this fact was denied by defendant No.2 in his written statement. 13 14. Section 14 of the Hindu Succession Act provides that any property possessed by a Hindu female whether acquired before or after the commencement of the Act would be held by her as the absolute owner of the property and not as a limited owner. The explanation provides that such property would include immovable property, acquired in any manner whatsoever. Thus, on the death of Bhimanna, his property devolved on Kashibai and she became the absolute owner of that property. 15. It would be advantageous to consider some of the provisions of the Hindu Adoptions and Maintenance Act, 1956, which are relevant in the present case. Section 12 reads as follows : “12. Effects of adoption.- An adopted child shall be deemed to be the child of his or her adoptive father or 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 severed and replaced by those created by the adoption in the adoptive family : 14 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 obligations, 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’ to Section 12 is material in the present case. 16. Section 13 of the Hindu Adoptions and Maintenance Act, 1956, reads as follows : “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 15 property by transfer inter vivos or by Will.” 17. In the present case, there is no dispute that the plaintiff was adopted by Kashibai, neither is there any dispute that Babu was the adopted son of Namdeo, the brother of Kashibai’s deceased husband Bhimanna. An adopted child is deemed to sever his ties with his natural family i.e. the family on his birth. The ties are replaced by those created by the adoption in the adoptive family. However, the adopted child cannot divest any person in the adoptive family of any estate which is vested in him or her prior to the adoption. In the present case, Kashibai had succeeded to the estate of the Bhimanna on his death. Section 14 of the Hindu Succession Act provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, must be considered to be her own property and that she would not be entitled to the same as a limited owner. Undisputedly, Bhimanna died intestate after the enactment of Hindu Succession Act, 1956. Therefore, Kashibai would be entitled to full ownership of his 16 property under Section 14 of the Act. Therefore, Kashibai was entitled to alienate the property in the manner she desired and the adoption of the plaintiff by her could not divest her of this right, unless there was a pre-adoption agreement under Section 13 of the Hindu Adoptions and Maintenance Act. There is no evidence on record at all to indicate that such an agreement was executed whereby Kashibai’s right to dispose of her own property inter vivos or by Will had been curtailed due to the adoption. In my view, therefore, the alienation made of the suit property by Kashibai cannot be challenged by the plaintiff. 18. In the case of Banabai and Ors. (supra), a learned Single Judge of this Court dealt with a similar case as the present one. The facts in that case were that Banabai was the widow of a person who died in September, 1958. He left behind several agricultural properties and a house property. Banabai adopted the plaintiff in that case in 1959. Although Banabai later challenged the adoption, the Civil Court 17 held that the adoption was legal and valid. Thereafter, Banabai sold some parts of the lands that she inherited from her husband. Her adopted son filed a Suit against her and contended that since in the ante-adoption agreement he was to get “all rights of a natural born son to Banabai and deceased husband Bhoraji”, he was entitled to have the right of management, possession and ownership of all movable as well as immovable properties of his adoptive father. He further contended that Banabai, i.e. his adoptive mother, was only entitled to maintenance and residence in the house. The learned Single Judge considered the effect of Section 12 of the Hindu Adoptions and Maintenance Act and held thus :- “18. Thus it would be seen that the adoption takes effect only from the date of adoption and not prior to the adoption. Under the former law the adoption had the effect of relating the adoption back to the date of death of the father. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of the adoption has been done away with by S. 12. Further the provisos 18 also limit the rights of the adopted son in the new family and proviso (c) which is material and which deals with the rights in the property as well the right of management to which Mr. Kherdekar wants me to extend the principle as enunciated by the Supreme Court is that “the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” In other words, though the adopted son from the date of adoption becomes a member of the adoptive family and acquires all the rights and status which that person would acquire in the adopting family with regard to the property, his right was controlled and is subject to his incapacity to divest any person of an estate which has already vested in him. Though, therefore, an adopted son may have rights to future in the property which the family may acquire after his adoption, with regard to the property which has vested in any particular person before his adoption, the adoption does not vest in him any rights with regard to that property. The plain terms of S. 12 and in particular proviso (c) clearly makes it quite clear that the adopted son, short of acquiring the right of management and right to the property of his adoptive parents acquires all the other rights and status of a natural born son in the family. 19. Now this limited right and incapacity to divest any person of the property which has already vested could be, by an agreement to the contrary 19 controlled by the adoptive father or the mother. S. 13 lays down that an adoption does not deprive the adoptive mother or the father of the power to dispose of his or her property by transfer inter vivos or by will. S. 13 emphasizes the provisions of S. 12, proviso (c). It, however, also makes it possible and permissible for the adoptive father or the mother to enter into an agreement by which the power to dispose of, or transfer the property either by transfer inter vivos or by will can be subjected to the terms of the agreement. To my mind, S. 13 speaks only of an agreement by which the power of transfer can be exercised in a particular manner. It need not, and does not say that there can be a transfer by the father or the adoptive mother. If the property has already vested in them, then S. 13 makes it quite clear that that right or power is not touched at all by the adoption, and can only be subjected to such terms as an agreement may impose. Where, therefore, it is contended that the property which has already vested is transferred, it can only be by a conveyance. It is then only that the person in whom the property has already vested can lose ownership over that property or to use the words of S. 12 “divest himself of that property.” S. 13 merely enables an agreement to be entered into between the parties by which the said right can be exercised in a particular manner. It may also be possible, though that is 20 hypothetical, that such a person may give up his right to transfer the property altogether. But that is an agreement which would curtail the power of transfer which vests in that person, and must be a valid limitation placed upon that power, not as a legal result of the adoption or the effect of adoption, but as a result of the agreement, whether before or after the adoption between the parties to the adoption.” 19. It has further been held that since the property had already vested in the widow on the death of her husband, it could be divested only by means of an instrument by which ownership over any property of that person ceases. It has further held that the adoption by itself would not have the consequence of the widow loosing her ownership of the property. 20. In the case of Kesharbai Jagannath Gujar (supra), the Full Bench of this Court considered the effect of Section 14 of the Hindu Succession Act and whether a son adopted subsequent to the commencement of the Act would have a right to claim partition of the estate. The Full Bench held that the Doctrine of relation back 21 of adoption had no application. In paragraph 27, the Full Bench has held thus :- “27. Our discussion till now will show that the Legislature has brought about a categorical change by introducing the provisions of Section 14(1) of the Hindu Succession Act. The female holder is now made full owner and has the effect of changing the nature of the property. This will always be the effect irrespective of the nature of the property which the woman possessed as a limited owner till June, 1956. The earlier nature of that property thus becomes irrelevant. Once that position is appreciated, it does not become necessary to investigate the nature of the property which came in the hands of the widow. If a Hindu male possessed only self acquired property and died leaving a widow, the position would not be different. Till 1956 June his widow would succeed to that property under the Mitakshara law and would take a limited estate known as Hindu widow’s estate. If she adopts and thus gets a son in the nature of law, so far as the son is concerned the property of his adoptive father would be ancestral property in his hands. The father having died intestate like the natural son, the adopted son would inherit that property. The widow would be effaced and by the principle of relation back, he would get the father’s property. All these 22 consequences of Shastirc Hindu Law have now been totally effaced by the inconsistent contrary provision of Section 14(1) of the Hindu Succession Act. That precisely is the effect of this statutory provision as is laid down by Section 4 of that Act. We do not think, therefore, that the nature of the property had any particular relevance while construing the provisions of Section 14(1) of the Hindu Succession Act.” 21. The Court further held that when the only person surviving was a widow, who becomes full owner of the property under the provisions of the Hindu Succession Act and thereafter adopts a son, the latter cannot claim any right in the property held by his adoptive mother,