Bombay High Court
Santosh Gahininath Patil Alias Santosh ... vs Sou.Shashikala Kondiba Zalake on 8 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:21356
Neeta Sawant SA-190-2019-FC.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 190 OF 2019
Santosh Gahininath Patil alias
Santosh Ramchandra Patil } ..Appellant
: Versus :
1. Shashikala Kondiba Zalake
2. Mangal Navnath Ghalake
3. Ramchandra Manohar Patil } ..Respondents
WITH
CIVIL APPLICATION NO. 352 OF 2019 (For Stay)
IN
SECOND APPEAL NO. 190 OF 2019
Santosh Gahininath Patil alias
Santosh Ramchandra Patil } ..Applicant/
Appellant
: Versus :
1. Shashikala Kondiba Zalake
2. Mangal Navnath Ghalake
3. Ramchandra Manohar Patil } ..Respondents
_______________________________________________________
Mr. R. M. Hardas a/w. Mr. Prasad Kulkarni, for the Appellant.
Mr. Umesh Kurund, for the Respondent Nos. 1 and 2.
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved On : 2 May 2024.
Judgment Pronounced On : 8 May 2024.
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Neeta Sawant SA-190-2019-FC.docx
JUDGMENT :
1) By this Appeal, the Appellant challenges decree dated 16 April 2018
passed by the Ad-hoc District Judge-1, Barshi in Regular Civil Appeal No.
229/2014 (Old R.C.S. No. 405/2012) by which the frst Appellate Court has
proceeded to dismiss Appellant's Appeal and has confrmed the Decree dated 25
July 2012 passed by the Civil Judge Senior Division, Barshi in Regular Civil Suit
No. 47/2012. The Trial Court has decreed the suit fled by Plaintif/Respondents
and has directed Defendant/Appellant to handover possession of the suit property
to Plaintifs.
2) Plaintifs are daughters of Ramchandra Manohar Patil (Defendant
No.1), who owned the suit properties bearing Gat Nos.977, 680, 962 and 984 at
Village-Bavi, Taluka-Barshi, District-Solapur. Appellant/Defendant No.2-Santosh
Gahirinath Patil is Plaintifs' cousin. Plaintifs' mother, Ranjana passed away in the
year 1983, by which time, both Plaintifs were married. It is Plaintifs' case that
after the death of their mother, Defendant No.1-Father started residing with
Plaintifs and used to attend the suit properties. Plaintifs pleaded that after they
obtained the 7/12 extracts of the suit properties, they discovered that the second
Defendant had mutated his name to the suit properties. Such mutation was made
by representing that Defendant No.2 was adopted by Defendant No.1. Plaintifs
claimed that no such adoption had taken place and the second Defendant did not
have any right, title or interest in the suit properties. Defendant No.1-father
appeared in the suit and fled Written Statement admitting contents of the plaint
and denied that he had executed any Adoption Deed or any Will in favour of
Second Defendant. Defendant No. 2 also resisted the suit by fling Written
Statement and relied upon Adoption Deed dated 6 December 1990. He claimed
that an adoption ceremony was held at Ram Mandir, Barshi and the Adoption Deed
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was registered in the presence of several witnesses. That Defendant No.2
accordingly changed his name as 'Santosh Ramchandra Patil'. He claimed title and
possession over the suit property. During the course of trial, Mangal Navnath
Ghalke, Plaintif No.2 examined herself in addition to Plaintifs' maternal uncle,
Magan Ramling Argade. Defendant No.2 examined himself as a witness in addition
to various other persons.
3) After considering the evidence on record, the Trial Court proceeded
to decree the suit by Judgment and Order dated 25 July 2012. The Trial Court held
that Defendant No.2 practiced fraud upon Defendant No.1 by mispresenting him
and got forged and fabricated Adoption Deed executed on 6 December 1990. The
Trial Court further held that execution of the Adoption Deed was not proved and
that therefore Defendant No.2 is not the adopted son of Defendant No.1. The
execution of Will dated 30 October 2007 by Defendant No. 1 was also held to be
not proved. By recording above fndings, the Trial Court decreed the suit and held
that Plaintifs are entitled to recover possession of the suit property from
Defendant No.2. Defendant No.2 fled Regular Civil Appeal No.405/2012, which
was later numbered as Regular Civil Appeal No. 229/2014. It appears that
Defendant No.1-father died during pendency of the suit and was accordingly
deleted from array of parties by the frst Appellate Court. The frst Appellate Court
has confrmed the decree by dismissing the Appeal fled by Defendant No.2 by its
judgment and order dated 16 April 2018.
4) Aggrieved by the Decree of the First Appellate Court confrming the
Decree of the Trial Court, Appellant/Defendant No.2 has fled the present Appeal.
This Court has admitted the Appeal by Order dated 2 May 2023 by framing
following substantial questions of law :
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(i) Whether in view of the provisions of Section 16 of the Hindu
Adoption and Maintenance Act, 1956 the trial and the frst Appellate
Court could have gone into the issue of validity of adoption ceremony
performed at the time of adoption of the Appellant when the
adoption deed is registered?
(ii) Whether it was necessary for the Appellant to prove before the Trial
Court that there is a custom in their community under which boy
over 15 years of age can be taken in adoption in the light of the
judgment of this Court in Hanmant Laxman Salunkhe V/s.
Shrirang Narayan Kanse AIR 2006 Bom.123 ?
5) Mr. Hardas, the learned counsel appearing for the Appellant would
submit that the Trial and the First Appellate Court have erred in doubting the
authenticity of adoption of Defendant No.2 in the light of presentation of registered
Deed of Adoption dated 6 December 1990. Relying on the provisions of Section 16
of the Hindu Adoptions and Maintenance Act, 1956 (the Act), Mr. Hardas would
submit that when registered document relating to adoption was produced before
the Court, the Court has to presume that the adoption was made in compliance
with the provisions of the Act, unless and until it is disproved. That by production
of valid registered Adoption Deed, it was impermissible for the Trial and the frst
Appellate Court to institute fresh enquiry into conduct of adoption ceremony or
going into the issue of validity of adoption. Mr. Hardas would further submit that
the frst Appellate Court has erred in holding that the adoption was invalid on
account of the provisions of Section 10(iv) of the Act. That in Maratha
community, there is a custom which permits person who has completed the age of
15 years being taken in adoption. He would submit that once the Courts have
recognised the custom in a particular matter for long time, the same has to be
considered as long and continuous practice and that it is not necessary to prove the
same. That the Trial and the frst Appellate Court ought to have taken judicial
notice of such custom as held by the Full Bench of this Court in Anirudh
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Jagdeorao V/s. Babarao Irbaji1. He would also reply upon judgment of this Court
in Hanmant Laxman Salunke (D) by LRs. V/s. Shrirang Narayan Kanse 2 in which
again this Court has recognised the custom in Maratha community where boy over
the age of 15 years can be adopted. He would submit that the parties in the present
case belong to Maratha community and that therefore it was not necessary to prove
prevalence of such custom in the community.
6) Mr. Hardas would therefore submit that the Adoption Deed has to be
treated as valid and that the Trial and the frst Appellate Court have erred in
ignoring such validly executed Adoption Deed. He would further submit that in
addition to Adoption Deed, Defendant No.1-father also executed a Will
bequeathing his estate in Appellant's favour and that therefore Appellant is the sole
owner in respect of the suit properties. Alternatively, and without prejudice, Mr.
Hardas would submit that atleast one-third share of Defendant No.2/Appellant
must be protected on the basis of Adoption Deed, even if the Will is held to be not
proved. He takes instructions from the Appellant who is personally present in the
Court during the course of arguments who is ready to settle for one-third share in
the suit property by ignoring the sale.
7) Per-contra, Mr. Kurund the learned counsel appearing for the
Respondent/Plaintif would oppose the Appeal and support the Decrees passed by
the Trial and the frst Appellate Court. He would submit that it was impossible
that the Plaintifs, who are daughters of Defendant No.1, would not be invited for
the alleged adoption ceremony by the father. That the Second Defendant took
disadvantage of illiteracy of the First Defendant and brought into existence
fraudulent Deed of Adoption as well as Will with a view to grab his property. That
Plaintifs, being real daughters of Defendant No.1 are best persons to lead evidence
AIR 1983 Bom 391.
AIR 2006 Bom 123
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in support of the absence of any adoption. That even father fled Written Statement
denying any such adoption. Mr. Kurund would submit that therefore no
interference is warranted in the well-reasoned judgments of the Trial and the First
Appellate Court.
8) Mr. Kurund would further submit that the age of the Second
Defendant was well above 15 years and the date of the alleged adoption and that
therefore such adoption is invalid under the provisions of Section 10 of the Act.
That there is no custom in the community of parties under which, boy above the
age of 15 years can be given or taken in adoption. That in case, prevalence of such
custom was required to be proved by leading evidence. That the adoption is thus
clearly invalid and has been rightly ignored by the Trial and the frst Appellate
Court. In support of his contention, he would rely upon judgment of the Apex
Court in Bhimashya and others V/s. Janabi (Smt) alias Janawwa 3. Relying on the
judgment of Rajgopal (Dead) by LRs. V/s. Kishan Gopal and another4, Mr. Kurund
would submit that no interference is warranted in the concurrent fndings of facts
recorded by the Trial and the frst Appellate Court. He would pray for dismissal of
the Appeal.
9) Rival contentions of the parties now fall for my consideration.
10) Before answering the frst question of law framed, I would take up the
second question for consideration frst, in the light of fndings recorded by the Trial
and the frst Appellate Courts. Perusal of the judgment passed by the Trial Court
would indicate that the issue of age of Defendant No.2 being above 15 years for the
purpose of considering validity of adoption under Section 10(iv) of the Act was
raised and has been considered by it in para-15 of the judgment which reads thus:
(2006) 13 SCC 627.
(2003) 10 SCC 653.
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15. The above ratio laid down by the Hon'ble Bombay High Court shows
that the custom was prevailing in Bombay State that the boy of any age even
if he is married can be adopted. This custom is well recognized by the
Hon'ble Bombay High Court in several rulings. It is also observed by the
Hon'ble Bombay High Court that as the custom is prevailing in the Bombay
State, hence there is no need to plead or prove the said custom as there is
no embargo in respect of age of adoptive child. Therefore, there can be no
ground to reject this adoption on the ground to reject this adoption on the
ground of age of adopted son.
11) Thus, so far as the Trial Court is concerned, it accepted the custom
in Maratha community of adoption of boy above age of 15 years by relying on
judgment of this Court in Hanmant Laxman Salunkhe (supra). The Trial Court
thus held that it was not necessary for Defendant No.2 to lead evidence about
existence of custom in Maratha community to prove validity of adoption when the
age of Defendant No.2 was above 15 years on the date of adoption. This fnding is
not challenged by Plaintifs by fling appeal/cross objection before the frst
Appellate Court. The frst Appellate Court though has recorded factual position
and submission in paragraph-16 and 17 of its judgment on this aspect, apparently
there is no specifc fnding by the frst Appellate Court on this issue. It is held by
the frst Appellate Court in paragraph-16 and 17 of the judgment as under :
16. Admittedly, at that time of adoption deed dated 06.12.1990
(Exh.86), the original defendant No. 2 was of 23 years old. The learned
advocate for plaintifs argued that the so called adoption is in contravention
of law, therefore, not legal. As per section 10 (iv) of Hindu Adoption and
Maintenance Act 1956, no person shall be capable of being taken in
adoption unless he or she has not completed age of 15 years, unless there is
a custom or usage applicable to the parties which permits persons who have
completed the age of ffteen years being taken in adoption.
17. On the other hand, advocate for defendants argued that there is
custom in Maratha Community in Bombay School, to take a person in
adoption above the age of 15 years. He relied in ratio laid down in case of "
Hanmant Laxman Salunkhe Vs. Shrirang Narayan Kanse, reported in
AIR 2006 Bom. 123 ", wherein His Lordships of Bombay High Court has
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observed that, "if there is judicial recolonization, it is not necessary to
prove it by leading evidence in trail court".
12) In my view therefore there is no serious contest on the issue of
validity of adoption of Defendant No.2 despite his age being above 15 years in the
light of provisions of Section 10(iv) of the Act. In Hanmant Laxman Salunkhe
(supra), Single Judge of this Court has relied upon Full Bench decision of this
Court in Anirudh Jagderao V/s. Babarao Irbaji (supra) and decision of the Apex
Court in Kondiba Rama Papal V/s. Narayan Kondiba Papal 5 and held that it is not
necessary for party to prove by evidence that there is custom or usage prevailing in
Maratha community of adopting a boy who has crossed the age of 15 years and who
was married at the time of his adoption. This Court held in paras-7 and 8 as under :
8. The learned counsel for the respondent was right in his submissions that
the view taken by the Full Bench of this Court in Anirudh's case (AIR 1983
Bom 391) (supra) has been approved by the Apex Court in the case of
Kondiba Rama Papal (AIR 1991 SC 1180) (supra) in the following words:
"...The adoption is not invalid although it took place after the thread
ceremony of the boy was performed. Thus the custom is judicially
recognised in the Bombay State as regards adoption of a child at any age.
Once the custom is judicially recognised, it is not required to be
independently proved in subsequent cases..."
By following the law laid down by the Full Bench of this Court in the case
of Anirudh (AIR 1983 Bom 391) (supra) and by the Apex Court in the case
of Kondiba (AIR 1991 SC 1180) (supra) it will have to be held that in the
instant case it was not necessary for the defendant to prove by evidence
before the trial Court that there was a custom or usage prevailing in the
Maratha community
in Satara District of adopting a boy who had crossed the age of 15 years and
was also married at the time of adoption. The contentions of the appellant
that the adoption of the respondent as had taken place on 22-11-1988 was
illegal on account of non-compliance of Section 10(iii) and Section 10(iv) of
the Act have to be rejected and thus the substantial questions of law at
serial no.(ii) and (iii) are hereby answered against the appellant-plaintif.
9. Now coming to the next issue of non-compliance of the requirements of
Section 11(iv) of the Act, as noted earlier, the lower Appellate Court has
1991 (2) SCC 218
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recorded a fnding of fact that the age diference between the adopting
mother and the defendant was less than 21 years on 22-11-1988 and thus
there was a contravention of the requirements of Section 11(iv) of the Act.
The Full Bench of this Court in Anirudh's case (AIR 1983 Bom 391) (supra)
was not called upon to consider the issue as to whether the requirements
set out under Section 11 were mandatory or directory. The Apex Court in
the case of Kondiba (supra) also did not deal with the said issue and,
therefore, the Courts below committed a gross error in holding that once
the fact of adoption was proved, the non-compliance of the requirements
or of any of them under Section 11 of the Act would not afect the
adoption in any way and lead to a conclusion that the adoption was illegal
or invalid. Section 5 of the Act states that no adoption shall be made after
the commencement of the Act by or to a Hindu except in accordance with
the provisions contained in Chapter II and any adoption made in
contravention of the said provisions shall be void. As per sub-section (2) of
the said Section an adoption which is void shall neither create any rights in
the adoptive family in favour of any persons 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.
Section 6 states that 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
(iv) the adoption is made in compliance with the other conditions
mentioned in this Chapter.
(Emphasis supplied)
Section 11 of the Act sets out other conditions for a valid adoption and it
states that these conditions must be complied with. The conditions which
must be complied with are as under:
"(i) if the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom
the adoption is made must not have a Hindu daughter or son's daughter
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female,
the adoptive father is at least twenty-one years older than the person to be
adopted;
(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." (Emphasis supplied)
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Section 16 creates certain presumptions as to the registered documents
relating to adoption. It states that whenever any document registered under
any law for the time being in force is produced before any Court purporting
to record an adoption made and is signed by the person giving and the
person taking the child in adoption, the Court shall presume that the
adoption has been made in compliance with the provisions of this Act
unless and until it is disproved.
13) In my view therefore the Adoption Deed dated 6 December 1990
cannot be treated as invalid only on the ground of age of Defendant No.2 being 23
years as on 6 December 1990, as it was not necessary for the Appellant to prove
that there is custom in their community permitting adoption of a boy over the age
of 15 years. The second question of law is answered accordingly.
14) Coming to the frst question of law, it is seen that both Trial and the
frst Appellate Court have gone into the issue of validity of the adoption ceremony
as well as the Adoption Deed dated 6 December 1990. The Trial and the frst
Appellate Court have doubted genuineness of such adoption ceremony. The main
reason for raising such doubts by both the Courts below is failure to invite
Plaintifs, who are natural daughters of Defendant No.1, for such ceremony. In my
view, the Trial and the frst Appellate Court have completely erred in not
appreciating the provisions of Section 16 of the Act which provides thus:
16. Presumption as to registered documents relating to adoption.―
Whenever any document registered under any law for the time being in
force is produced before any Court purporting to record an adoption made
and is signed by the person giving and the person taking the child in
adoption, the Court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it is disproved.
15) In the present case, the Adoption Deed dated 6 December 1990 is
registered. Once registered deed of adoption was presented, the Court has to
presume that the adoption was made in compliance with provisions of the Act. In
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the present case, Defendant No.1 father did not fle any proceedings to challenge
the Adoption Deed. In a suit fled by her daughters essentially to claim rights in
property, he fled a Written statement disowning the Adoption Deed. Both the
Trial and the frst Appellate Court have not recorded any fnding of fact that
Defendant No.1 has not signed the Adoption Deed. Thus, execution of Adoption
Deed is proved. Once execution and registration of the Adoption Deed is proved,
Section 16 of the Act relieves party of any burden to prove valid adoption and casts
a duty on the Court to presume valid adoption recorded in the document. Thus,
upon production of a registered Deed of Adoption, the Court is not supposed to
institute an enquiry as to whether adoption ceremony was validly performed or not.
In my view both, Trial and the frst Appellate Court have erred in going into the
aspect of genuineness or validity of performance of adoption ceremony, which is
clearly impermissible considering the provisions of Section 16 of the Act. The frst
question of law is answered accordingly.
16) Thus valid adoption of Defendant No.2 is proved. Though Defendant
No.2 relied upon Will of Defendant No.1 dated 30 October 2007 in his Written
Statement, Mr. Hardas has not pressed the point of validity of Will and accordingly
no question of law is framed in that regard while admitting the appeal. Therefore,
upon proof of valid adoption of Defendant No.2, he becomes entitled to share in
the suit properties alongwith the two Plaintifs. In my view, therefore the two
Plaintifs and Defendant No.2 shall each have one-third share in the suit properties.
17) Second Appeal accordingly partly succeeds and I proceed to pass the
following order:
(I) Decree dated 25 July 2012 passed by Civil Judge Senior Division,
Barshi in Regular Civil Suit No. 47/2012 as afrmed by decree dated
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16 April 2018 passed by Ad-hoc District Judge-1, Barshi in Regular
Civil Appeal No. 229/2014 are set aside.
(II) The decree of the Trial Court is modifed to the extent that Plaintifs
and Defendant No.2 shall each have one-third share in the suit
properties and each shall have right of partition and separate
possession in respect of their shares.
(III) Preliminary decree for partition for carving of one third share each of
Plaintifs and Defendant No.2 be accordingly drawn up and sent to
the Collector for efecting partition.
18) With the above directions, the Second Appeal is partly allowed.
There shall be no order as to costs.
19) With the disposal of the Appeal, nothing survives in the Civil
Application and the same also accordingly stands disposed of.
SANDEEP V. MARNE, J.
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