Bombay High Court
Jagganath Gorakh Patil And Ors vs Bhagirathibai Gorakh Patil And ... on 27 April, 2016
Bench: T.V. Nalawade
SA No. 25/2010
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
903 SECOND APPEAL NO. 25 OF 2010
WITH CA/712/2016 IN SA/25/2010
JAGGANATH GORAKH PATIL AND ORS
VERSUS
BHAGIRATHIBAI GORAKH PATIL AND ORS
...
Advocate for Appellants : P.M. Shah, Sr. Counsel i/b. V.B. Patil
Advocate for Respondents 1 & 2 : A.S. Abhyankar h/f. S.V. Natu
...
ig CORAM : T.V. NALAWADE, J.
DATED : 27th April, 2016.
ORDER :
1. The appeal is filed against judgment and decree of
Regular Civil Suit No. 152/2000 (Old No. Special Civil Suit No.
54/1992), which was pending in the Court of Civil Judge, Junior
Division, Nandurbar and also against judgment and decree of
Regular Civil Appeal No. 31/2001, which was pending in the
District Court, Nandurbar. The suit filed for partition and
separate possession of Joint Hindu Family property was partly
decreed by the Trial Court. Both the sides challenge the decision
in first appeal which was filed by original defendants. The
plaintiffs filed cross objection. The cross objection of the
plaintiffs was allowed and the extent of share of plaintiffs in the
suit properties is increased. Both the sides are heard.
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2. Plaintiff No. 1 - Bhagirathibai and plaintiff No. 2 -
Sushilabai, daughter of Bhagirathibai, had filed the aforesaid
suit. Gorakh Patil was the husband of plaintiff No. 1 and father of
plaintiff No. 2. Defendant No. 1 is the real brother of Gorakh.
Defendant Nos. 2 to 4 are issues of other brother of Gorakh
namely Narsu. Defendant No. 5 is a cousin of plaintiff No. 2 and
defendant No. 6 is a sister of Gorakh. Defendant No. 7 is widow
of Narsu.
3. It is the case of plaintiffs that Gorakh died during
lifetime of his father prior to 1970 when he was living in Joint
Hindu Family with his father. It is contended that Gorakh had
1/4th share in the suit properties as the properties were
ancestral and Joint Family properties of his father. They
contended that as successors of Gorakh, they are entitled to that
share.
4. It is the case of plaintiffs that Gorakh had no male
issue and due to this circumstance, the defendants do not want
to give share to plaintiffs. It is contended that plaintiff No. 1 was
driven out of Joint Hindu Family house when she demanded the
house and when she refused to execute relinquishment
document in favour of defendants. It is the case of plaintiff No. 1
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that plaintiff No. 2 is married and so, she is living with plaintiff
No. 2.
5. It is the case of plaintiffs that defendant No. 3 is
claiming himself to be adopted son of plaintiff No. 1. It is
contended that plaintiff No. 1 never took defendant No. 3 in
adoption and he is a son successor of Narsu. It is contended that
no adoption ceremony took place and no document of adoption
was prepared by plaintiff No. 1 regarding adoption.
6. Defendant No. 3 filed written statement. Defendant
Nos. 1, 2, 4 and 6 adopted written statement of defendant No. 3.
Defendant No. 7 filed similar written statement. They contended
that on 22.3.1971 defendant No. 3 was adopted by plaintiff No. 1
and deed was executed by plaintiff No. 1 in that regard. It is
contended that the adoption deed was registered and that
adoption was never challenged and as no relief is claimed in
respect of said adoption, the suit is not tenable.
7. Defendants took the defence that on 1.4.1972
partition was effected and plaintiff No. 1 had signed that
document also and mutation was made on the basis of that
document. It is contended that due to these circumstances also,
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plaintiffs cannot contend that there is no adoption and partition
has not taken place.
8. Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence. The Courts below have
held that there was no partition. It is held that the so called
document cannot be read in evidence as by that document,
partition was to be made and it was not registered. The Trial
Court held that defendant No. 3 was taken in adoption by
plaintiff No. 1 and it was necessary for her to seek declaration in
respect of that adoption. By presuming adoption of defendant
No. 3, the Trial Court first separated the share of Gorakh and
then divided the share of Gorakh between plaintiffs and
defendant No. 3.
9. The District Court held that factum of adoption was
proved, but the adoption was not valid. Due to this finding, the
District Court further held that there was no necessity of getting
declaration in respect of adoption and so, the plaintiffs together
were entitled to get the share of Gorakh. The share of Gorakh in
the property of his mother Sarubai is also given to the plaintiffs.
The share of Gorakh in the property of Raghunath, father of
Gorakh is also given to the plaintiffs. There is no dispute about
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the extent of share which plaintiffs will get if the adoption is not
proved.
10. The learned Senior Counsel for the appellants
submitted that following substantial questions of law need to be
formulated.
(i) Whether the District Court has committed error in
holding that the adoption is not valid when there was
no specific pleading in the plaint in that regard ?
(ii) Whether the District Court has committed error in
holding that the suit is within limitation when the suit
was filed after 20 years of the date of adoption ?
(iii) Whether the District Court has committed error in
holding that the age difference between the age of
plaintiff No. 1 and defendant No. 3 was less than 21
years and for that reason, the adoption was not valid ?
(iv) Whether the Courts below have committed error
in not accepting the case of defendants that partition
had taken place in the year 1972 ?
11. On the other hand, the learned counsel for plaintiffs
submitted that the suit ought to have been decreed in toto by
the Trial Court itself on the ground that plaintiff No. 1 had
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become absolute owner of the properties after the death of
Gorakh in view of provisions of section 14 of Hindu Succession
Act, 1956 and section 12 of Hindu Adoptions and Maintenance
Act, 1956 (hereinafter referred to as 'the Act' for short). The
learned counsel submitted that on this ground, the suit ought to
have been decreed and there is no question of formulation of
substantial questions of law on any of the aforesaid points.
12.
Both the Courts below have held that the factum of
adoption, giving and taking, is proved. The District Court has
held that the adoption was not valid as the age difference
between the age of plaintiff No. 1, adoptive mother and
defendant No. 3, adoptee boy was less than 21 years. The main
grievance of the learned Senior Counsel for the appellants is that
there was no specific pleading with regard to the age difference
and further, the suit was not within limitation, if the relief of
declaration in respect of adoption was necessary.
13. The Courts below have held that partition is not
proved. The finding that there was no partition, given by the Trial
Court, is confirmed by the First Appellate Court. Exh. 127, the so
called partition document shows that by this document, the
parties had effected the partition. The document was not
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registered and further, there are more circumstances like record
of mutation of the year 1957 showing that in that it was
informed to revenue authority that there was oral partition and
two properties like Survey No. 81/1 and Survey No. 78/2 were
given to the share of Gorakh. After making the mutation in
favour of Gorakh in respect of these lands, in the year 1967 after
the death of Gorakh, another mutation was made in favour of
plaintiffs in respect of these two lands. In spite of this record, the
defendants wants to prove that the actual partition took place
under the aforesaid document, Exh. 127. In the year 1972, one
more mutation, mutation No. 80, was made after the death of
Raghunath, father of Gorakh. This document shows that names
of all the issues of Raghunath were entered as successors of
Raghunath in respect of lands Survey Nos. 27 and 97. If there
was partition made in the year 1972, in ordinary course, such
mutation would not have been made and it can be said that the
document was not acted upon and the names of most of the
successors of Raghunath were entered in the revenue record
after his death. The findings on the factum of partition of the
Courts below are concurrent and no substantial question of law
as such is involved in that regard.
14. At the time of consideration of point of limitation, it
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needs to be kept in mind that the defendants failed to prove that
there was partition. If the properties were Joint Hindu Family
properties and the defendant No. 3 was claiming some share in
the properties as adopted son of plaintiff No. 1, he could not
have defended the matter by saying that the suit was not within
limitation. Other defendants also could not have defended the
suit by taking such defences. Further, if the adoption was not
valid, it was void, then it can be said that the properties
remained with Joint Hindu Family and so, the point of limitation
was not involved. Thus, only the point of validity of adoption
needs to be dealt with in the present proceeding. The learned
counsel for plaintiffs placed reliance on the case reported as
A.I.R. (31) 1944 Madras 550 [Nalam Ramayya and Ors.
Vs. Nalam Achamma]. On the other hand, the learned counsel
for appellants placed reliance on the cases reported as A.I.R.
1953 NAGPUR 239 [Nago and Ors. Vs. Sukya and Anr.],
AIR 1957 MADHYA BHARAT 179 [Madhavrao Vs. Netram]
and AIR 1961 KARNATAKA 49 [Mallappa Fakirappa Sanna
Nagashetti and Ors. Vs. Shivappa and Anr.]. The facts of
the cases on which reliance was placed by the learned Senior
Counsel for appellant show that they are in respect of disputed
adoption which had taken place prior to coming into force of the
provisions of the Act. The points of consent of other spouse or
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permission of the collateral were involved in the two matters. In
the third matter, the case of plaintiff of adoption was conceded
by the other side.
15. In the codified law, the Act, there is concession in
respect of the consent of other spouse and if the conditions laid
down in that regard are fulfilled, the adoption by one spouse can
be accepted. In view of the previous position of law, in the first
case cited by the learned Senior Counsel for appellants, it was
observed that a bare denial of adoption is not sufficient and it's
validity needs to be challenged. In the case reported as 1983
Mh.L.J. 402 [Madhusudandas Vs. Narayanibai and Ors.],
the Apex Court has discussed the codified law in respect of
adoption and it is laid down that both the factum and validity of
adoption need to be proved by the person alleging adoption as
adoption seeks to displace the natural succession to property.
16. Section 4 of the Act shows that unless expressly
provided by provisions of this Act, Hindu Law, its interpretation
or even custom in respect of Hindu adoption shall cease to have
effect. It is made clear that any law inconsistent with the
provision of this Act shall cease to apply. Due to this overriding
effect, cases cited supra by the learned Senior Counsel are of no
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use to the appellants, defendants.
17. Section 5 of the Act runs as under :-
"5. Adoptions to be regulated by this
Chapter.-- (1) No adoption shall be made after the
commencement of this Act by or to a Hindu except
in accordance with the provisions contained in this
Chapter, and any adoption made in contravention
of the said provisions shall be void.
(2) An adoption which is void shall neither
create any rights in the adoptive family in favour
of any person which he or she could not have
acquired except by reason of the adoption, nor
destroy the rights of any person in the family of his
or her birth."
18. The provisions with regard to the requirement of
valid adoption can be found in section 6 of the Act, which runs as
under :-
"6. Requisites of a valid adoption.--No
adoption shall be valid unless--
(i) the person adopting has the capacity, and
also the right, to take in adoption;
(ii) the person giving in adoption has the
capacity to do so;
(iii) the person adopted is capable of being taken
in adoption; and
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(iv) the adoption is made in compliance with the
other conditions mentioned in this chapter."
The requirements mentioned in section 6 are specifically quoted
in sections 7 to 10. The provision of section 11 shows the other
conditions which also need to be complied as per the
requirement of section 6 (iv) of the Act. So, the provision of
section 11 (iv) is relevant and it is as under :-
"11. Other conditions for a valid adoption.--
In every adoption, the following conditions must
be complied with :
(i) .........
(ii) .........
(iii) .........
(iv) if the adoption is by a female and the person
to be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to be
adopted."
19. In view of the wordings of sections 5, 6 and 11 (iv), it
needs to be presumed that if the age difference is less than 21
years in a case when adoption is by female and person to be
adopted is male, such adoption is void.
20. The adoption document, Exh. 126, which was
registered and on which defendant No. 3 is placing reliance
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shows that the age of the plaintiff No. 1 was shown as 33 years
and age of defendant No. 3 was shown as 15 years. Thus, from
the document itself, it can be said that there was difference of
age of hardly 18 years. At Exh. 72, there is birth certificate of
plaintiff No. 1 and it shows that the date of birth of plaintiff No. 1
is 10.5.1945. So, it can be said that on 22.3.1971 the date of
execution of Exh. 126, the age of plaintiff No. 1 was 26 years.
The District Court has considered the best possible case
availabel for defendant No. 3 by presuming that the age of
plaintiff No.1 was probably not 26 years, but it was 33 years.
Similarly, there is admission given by defendant No. 3 in the
evidence that his birth date is 23.4.1954 i.e. he was aged about
17 years at the relevant time. Thus, in any case, the age
difference was 16 to 18 years and not 21 years. Thus, the
adoption was void. In view of the aforesaid position of law, there
was no need of specific pleading from plaintiffs' side in that
regard and it was up to defendant No. 3 to prove that all the
aforesaid conditions were fulfilled including the condition of
difference in the age. On this point, the learned counsel for
plaintiffs placed reliance on the case reported as 1994 Mh.L.J.
1078 BOMBAY [Nemichand Shantilal Patni Vs. Basantabai
w/o. Nemichand Pahade]. Thus, no substantial question of law
as such is involved in respect of the main contention made for
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appellants, defendant No. 3.
21. The learned counsel for respondents placed reliance
on the case reported as B.L.R. [Vol. [XXXIII] 46 [Kesharbai
Jagannath Gujar Vs. State of Maharashtra] to support his
contention that in view of the provision of section 12 (c) of the
Act and section 14 (i) of the Hindu Succession Act, the property
of Gorakh, his share in the Joint Hindu Family property had
vested in plaintiffs and so, defendant No. 3 cannot get anything
even after proving adoption. This Court has carefully gone
through the facts of the case of Kesharbai cited supra. In that
case, husband of Kesharbai was having absolute property at the
time of his death and only due to the provisions of Hindu Law,
prevailing at that time, the widow got the property as limited
owner in the year 1934 and then due to subsequent changes in
the law, Hindu succession Act 1956, she became absolute owner
of the property. The facts of the present case are different. The
suit is filed for relief of partition of joint Hindu Family properties
and it is the case of plaintiffs that partition had not taken place.
On the point, the following reported cases can be cited.
(i) AIR 1987 SUPREME COURT 398 [Vasant
and Anr. Vs. Dattu and Ors.],
(ii) AIR 1966 BOMBAY 174 (V 53 C 38)
[Ankush Narayan Shingate Vs. Janabai Kom
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Rama Sawat and Ors.].
In view of the position of law laid down by the Apex Court in the
case of Vasant cited supra, which is not supporting the
proposition made for plaintiffs, there is no need to go in to more
details of this point. As no substantial question of law is involved
in the matter, following order is made.
ORDER
The appeal stands dismissed. Civil Application is
disposed of. The learned Senior Counsel for original defendant
prayed for stay to the execution of decree. The suit was of 1992.
The age of the lady, plaintiff No. 1 is more than 75 years. The
entire property is with defendants. Due to this circumstance,
stay is refused.
[ T.V. NALAWADE, J. ]
ssc/
