Bombay High Court
Nathaji @ Sudhakar Tatyaba Katkar ... vs Shri Vithal Satava Katkar on 14 February, 2025
2025:BHC-AS:7459
901-SA-637-2011.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 637 OF 2011
Nathaji @ Sudhakar Tayaba Katkar,
since deceased through his heirs and
legal representatives:
a) Kusum Nathaji Katkar
b) Rajlaxmi @ Jayashri Nathaji Katkar
c) Maya Nathaji Katkar
d) Jitendra Nathaji Katkar
All residing at Kukudwad, Taluka Man,
District Satara. ... Appellants
vs.
1. Shri Vithal Satava Katkar,
Parera Apartments, Hansnagar,
Pachpakadi, Thane -400 601.
2. Shri Shrinavas Ganpat Kale,
Taluka Patan, District Satara.
3. Shri Ajit Ganpat Kale,
Taluka Karad, District Satara.
4. Aruna Ganpat Kale,
Khurd, Taluka Karad, Dist: Satara.
5. Kalawati Bhagwanrao Yadav, since
deceased through his heirs and
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legal representatives:
a) Bhagwan Bandoba Yadav,
b) Ashok Bhagwan Yadav
c) Arvind Bhagwan Yadav
d) Satish Bhagwan Yadav
e) Sheela Prakash Kale
All agriculturist, residing at Kadepur,
Taluka Khanapur, District Sangli. ... Respondents
Mr. R.N. Kachare a/w. Mr. Pradeep Gole for the Appellants.
Mr. D.S. Mhaispurkar for Respondents.
CORAM : GAURI GODSE, J.
RESERVED ON : 24 th OCTOBER 2024
PRONOUNCED ON: 14th FEBRUARY 2025
JUDGMENT:
BRIEF FACTS:
1. This appeal is preferred by the heirs and legal
representatives of the original plaintiff to challenge the
judgment and decree passed by the first appellate court. The
trial court decreed the plaintiff's suit, declaring that the suit
properties are owned by the plaintiff, defendant no.3 and heirs
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of defendant no.2. The trial court had directed the defendants
not to obstruct the plaintiff's possession over the suit property.
The trial court's decree declared that defendant no.3 and the
heirs of defendant no.2 can claim partition of the suit property
by a separate legal proceeding. However, they were held not
entitled to disturb the plaintiff's possession over the suit
property till recovery of their shares after following due process
of law. The first appeal preferred by defendant no.1 is allowed,
and the trial court's judgment and decree is set aside, and the
suit is dismissed. Hence, the second appeal by the heirs and
legal representatives of the plaintiff.
2. The second appeal is admitted on the following
substantial questions of law:
I) What is the legal effect of the fact of adoption dated
12th September 1940?
II) Whether the appellate court was correct according to
law to interfere with the decree passed by the trial court?
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3. The plaintiff had filed a suit for declaration of his title in
respect of the suit property. The plaintiff is defendant no. 1's
biological brother and Defendant no.2 - Pushpalata, and
defendant no.3 - Kalawati, are their biological sisters. One
Tatya Katkar was their father. At the age of 15 years,
defendant no. 1 (Vithal) was given in adoption to Ratnabai
Sakharam Katkar on 12th May 1940 by executing a registered
adoption deed. Before giving defendant no. 1 in adoption, his
biological father, Tatya, purchased the suit property in the
name of defendant no. 1, Vithal. In the revenue record, the suit
property was entered into defendant no.1's name, represented
through his adoptive mother as guardian. Thus, based on the
registered sale deed and the revenue record in his name,
defendant no. 1 claims to be the exclusive owner of the suit
property.
4. The plaintiff contends that defendant no. 1 was given in
adoption in a different family, and he had no right with respect
to the suit property. The plaintiff contends that the suit property
purchased in the name of defendant no.1 was purchased from
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the joint family income. The suit property belongs to the joint
family of Tatya, plaintiff and defendant nos. 2 and 3.
5. Thus, the controversy in the suit is regarding the fact of
the sale deed in the name of defendant no.1, the revenue
record in the name of defendant no.1 represented through his
adoptive mother as guardian and the plaintiff's claim that he
and defendant nos. 2 and 3 had a share in the suit property as
it belonged to the joint family of Tatya. The trial court held that
in view of the adoption deed, defendant no.1 was not entitled to
claim any right in the suit property. However, the first appellate
court held that the suit property was purchased by way of a
registered sale deed in the name of defendant no.1. The first
appellate court, thus, held that the plaintiff would not be entitled
to seek any declaration of ownership in the property which was
purchased in the name of defendant no.1.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
6. Learned counsel for the appellant (plaintiff) submitted that
the sale deed dated 21st May 1940 was executed in the name
of defendant no.1; however, the property was purchased from
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joint family income by their father, Tatya. Learned counsel for
the appellant further submitted that after execution of the sale
deed, defendant no.1 was given in adoption on 12 th September
1940. He submitted that since the sale deed was standing in
the name of defendant no.1, who was a minor at the relevant
time, he was shown as represented through his adoptive
mother as a guardian while making the entry in the revenue
record. He submitted that Tatya expired sometime in the year
1968, and the suit was filed in the year 1985 for declaration on
the ground of obstruction made by defendant no.1 on 7 th June
1985.
7. Learned counsel for the appellant relied upon defendant
no.1's pleading in paragraph 10 of the written statement. He
submitted that defendant no.1 raised an alternative plea of
perfecting title by adverse possession. He submits that the
alternate plea of defendant no.1 is sufficient ground to hold that
the property never belonged to defendant no.1, and it was a
joint family property of the plaintiff, Tatya and defendant nos. 2
and 3.
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8. With reference to question no.1 framed by this court,
learned counsel for the appellant submitted that Tatya
purchased the suit property from joint family income; therefore,
after the adoption, it remained in the joint family. He submitted
that since defendant no.1 was given in adoption in a different
family, the property remained in the joint family of the plaintiff,
Tatya and defendant nos. 2 and 3. With regard to the mutation
entry effected in the name of defendant no.1, after adoption,
learned counsel for the appellant submitted that since the sale
deed was in the name of defendant no.1, the mutation entry
ought to have been effected in the name of defendant no.1. He
submits that only because defendant no.1 was a minor, he was
shown as represented through his adoptive mother-Ratnabai.
He, however, submitted that the mutation entry, in any case,
would not create any right in favour of defendant no.1.
9. Learned counsel for the appellant submitted that till 1968,
i.e. during the lifetime of Tatya, defendant no.1 never claimed
any right in respect of the suit property. He submitted that
though the property continued to remain in the name of
defendant no.1, the suit property was always in possession of
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Tatya and the plaintiff, and they were cultivating the same.
Learned counsel for the appellant submits that the adoption of
defendant no.1, in whose favour the sale deed is executed, has
no right in the suit property as the suit property belongs to the
joint family of Tatya, plaintiff and defendant nos. 2 and 3.
10. Learned counsel for the appellant submitted that even if
defendant no.1 had any right in the suit property, the same
stood divested in view of the adoption. To support his
submissions, learned counsel for the appellant relied upon the
decisions of this court in the case of Dattatraya Sakharam Devli
Vs. Govind Sambhaji Kulkarni1, which was followed in the case
of Bai Kesarba Vs. Shivsangji Bhimsangji Thakor 2. He
submitted that in view of the settled legal principles, once
defendant no.1 was given in adoption, he lost all his rights,
which he otherwise acquired through his natural father. He
submits that in view of the legal principles settled in the
aforesaid decisions, the right, if any, in favour of defendant
no.1 stood extinguished in view of the adoption. Learned
counsel for the appellant, thus, submitted that the trial court
1 1916 SCC Online Bom 65
2 1932 SCC Online Bom 28
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had rightly decreed the suit, declaring the plaintiff and
defendant nos. 2 and 3 as owners of the suit properties.
11. Learned counsel for the appellant submits that the first
question of law thus be answered in favour of the appellant. He
submits that in view of well-settled legal principles, the legal
effect of the adoption deed would divest defendant no.1 from
any of the rights created in his favour regarding the suit
property. He thus submits that the first appellate court erred in
interfering with the findings recorded by the trial court and erred
in not considering the legal effect of the adoption deed. He,
thus submits that both the questions of law must be answered
in favour of the appellant.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1:
12. Learned counsel for respondent no. 1 (defendant no.1)
submitted that there is a presumptive value to the contents of
the registered sale deed in the name of defendant no.1. He
submits that the entry in the revenue record after adoption
deed clearly indicates that the intention of Tatya always was to
keep the suit property as exclusively owned by defendant no.1.
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Hence, inspite of adoption, the entry in the revenue record was
made in the name of defendant no.1 shown as represented
through his adoptive mother.
13. To support his submissions on the legal effect of the
adoption deed, learned counsel for defendant no.1 relied upon
the decision of the Hon'ble Apex Court in the case of
Omprakash Sharma alias O.P. Joshi Vs. Rajendra Prasad
Shewda and Ors3. Learned counsel for respondent no.1
submitted that to determine the nature of the transaction, the
relevant circumstances would indicate the actual intention of
execution of the document. He, thus, submits that the entry in
the revenue record clearly showed Tatya's intention that the
suit property was purchased in the name of defendant no.1 as
his independent property and there was no intention to keep it
as joint family property.
14. Learned counsel for respondent no.1, submitted that
there is no evidence produced by the plaintiff to show that there
was joint family property or any joint family income. He submits
that, admittedly, Tatya was in Government service; hence, it is
3 (2015) 15 SCC 556
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clear that the suit property was purchased from his
independent income. Learned counsel for respondent no.1,
thus submits that the legal principles settled in the case of
Omprakash Sharma squarely apply to the facts of the present
case. He thus submits that the execution of the adoption deed
would have no effect on respondent no.1's absolute title over
the suit property in view of the registered sale deed in his
name. He submits that the undisputed mutation entry in the
name of respondent no.1, after the adoption deed, also
indicates that the intention of Tatya was to purchase the suit
property as an independent property of defendant no.1.
Learned counsel for respondent no.1; thus, submits that there
would be absolutely no effect on respondent no.1's title, in view
of adoption deed. He thus submits that the first appellate court
rightly interfered in the findings recorded by the trial court and
correctly set aside the trial court's judgment and decree and
dismissed the suit. Learned counsel for respondent no.1 thus
submits that the substantial questions of law must be answered
in favour of defendant no.1.
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SUBMISSIONS IN REJOINDER ON BEHALF OF
APPELLANT:
15. With reference to the submissions made on behalf of
defendant no.1, learned counsel for the appellant submitted
that there was a presumption of jointness of the Hindu joint
family of Tatya, plaintiff and defendant nos. 2 and 3. He, thus,
submits that the burden would lie upon defendant no.1 to show
that there was no joint Hindu undivided family. Learned counsel
for the appellant further submits that after the adoption,
defendant no.1 takes the name of his adoptive family.
However, the sale deed remained in the name of defendant
no.1's biological family. He submits that the name in the sale
deed was never to change after the adoption. Hence, only
based on the sale deed in the biological name of defendant no.
1, he would not get any right in respect of the suit property after
his adoption.
16. Learned counsel for the appellant submits that the
decision of the Hon'ble Apex Court, in the case of Omprakash
Sharma, is based on the provisions of the Benami transaction.
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He submits that in the present case, since there was a Hindu
undivided joint family and Tatya was Karta or the Manager of
the Hindu joint family, he always had the right to purchase the
suit property in the name of one member. He submits that,
admittedly, defendant no.1 was minor at the time of execution
of the sale deed, and he had no independent source of income.
He thus submits that the suit property, though purchased in the
name of defendant no.1, would continue to remain in the joint
family property of Tatya. He thus submits that in view of
adoption, the right would stand divested, and thus, the first
appellate court erred in not considering the adoption deed's
legal fact. Thus, he submits that both questions must be
answered in favour of the appellant.
CONSIDERATION OF THE SUBMISSIONS AND ANALYSIS:
17. I have considered the submissions made on behalf of
both parties. I have perused both the judgments, pleadings,
and evidence on record. The relations between the parties are
not in dispute. The basic facts regarding the execution of the
sale deed, the adoption deed, and the mutation entry in the
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name of defendant no.1 after his adoption are not in dispute. It
is not in dispute that Tatya was in Government service. There
is no evidence on record to indicate that there was any joint
family of Tatya and his children and that there was any joint
family income. Thus, the sale deed was executed in favour of
defendant no.1 by Tatya from his independent income from his
government service.
18. The sale deed was executed in the name of defendant
no.1 before he was given in adoption. After he was given
adoption, mutation entry no. 2406, was effected in the name of
defendant no.1 based on the sale deed executed prior to his
adoption. The mutation entry clearly records that defendant
no.1 was a minor and, thus, was represented through his
adoptive mother as a natural guardian. The said mutation entry
is not under challenge. Even after the adoption, the entry in the
revenue record was made in the name of defendant no.1,
represented through his adoptive mother as guardian.
Thus, Tatya's intention is very clear to purchase the suit
property for defendant no.1. Thus, the undisputed mutation
entry no. 2406, supports the case of defendant no.1 that the
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suit property was always treated as the independent property
of defendant no.1.
19. The only fact that defendant no.1 was a minor and his
biological father purchased the suit property in his name, ipso
facto, will not make it a joint family property, in the absence of
any iota of evidence that there existed a joint family of Tatya
and he intended to treat the property as a joint family property.
The presumptive value of the registered document has to be
taken into consideration. In the present case, the fact of the
adoption deed would only mean that defendant no.1 was given
in adoption in another family, he acquired the name of the
adoptive family and all his ties with his biological family were
severed.
20. I do not find any substance in the argument raised on
behalf of the appellant that since the sale deed was executed
in the biological name of defendant no.1, after his adoption,
there was no necessity to change the name in the sale deed.
The fact of effecting mutation entry in the name of defendant
no.1 after his adoption through his adoptive mother
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as guardian clearly validates execution of the sale deed in the
name of defendant no.1 to be his independent property.
21. There is no evidence to indicate that there was any joint
family of Tatya and the possession was with the joint family.
Therefore, it cannot be assumed that the suit property was
purchased as joint family property and therefore the plaintiff
was in possession. Thus, without evidence, the suit property
cannot be accepted as a joint family property. Even otherwise,
there is nothing on record to indicate that there was any joint
family income. Admittedly, Tatya was in Government service,
and thus, it is clear that Tatya purchased the suit property from
his independent source of income. Thus, I see no reason to
accept that the suit property anytime was treated as a joint
family property of Tatya and defendants nos. 2 and 3.
22. The payment of consideration by Tatya would not mean
that it was a joint family property. The most crucial aspect
regarding mutation entry in the name of defendant no.1 through
his adoptive mother clearly indicated that Tatya's intention was
to purchase suit property as an independent property of
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defendant no.1. Thus, the execution of adoption deed would
have no legal effect on the sale deed which was in the name of
defendant no.1. The sale deed continued to stand in the
biological name of defendant no.1 would not take away his
absolute right created in his favour in view of registered sale
deed in his name. Thus, the legal effect of the adoption deed
would only be limited to defendant no.1, being a member of the
adoptive family and not part of Tatya's family.
23. The execution of the registered sale deed in the name of
defendant no.1 and the execution of mutation entry after his
adoption support defendant no.1's case that the suit property
was always treated as his independent property. Thus,
execution of the adoption deed would not divest the rights
created in favour of defendant no.1 by way of execution of the
registered sale deed in his name.
LEGAL PRINCIPLES:
24. In the decision of Dattatraya Sakharam Devli, relied upon
by the learned counsel for the appellant, One Mahadev and his
brother, Sambhaji, were divided in interest. Mahadev died more
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than twenty years ago, leaving a widow, Parvatibai, a son
Ramchandra, and daughters. After Mahadev's death,
Ramchandra was given in adoption to a different family at
Gwalior. The properties in the suit, which were initially assigned
to the share of Mahadev and which were vested in
Ramchandra alone after Mahadev's death, were mortgaged by
Parvatibai in 1909 to one Dattatraya long after Ramchandra's
adoption. Dattatraya filed the suit to enforce his mortgage, to
recover possession and to obtain an injunction. The suit was
filed against Sambhaji's sons, and Parvatibai represented by
her daughters. Sambhaji's sons contested the suit claim,
essentially on the ground that the property being vested in
Ramchandra at the time of his adoption remained vested in him
even after he was given in adoption and that Parvatibai had no
right to mortgage the property, as Ramchandra was alive.
25. This court, in the decision of Dattatraya Sakharam Devli,
held that the fundamental idea underlying an adoption is that
the son given in adoption gives up the natural family and
everything connected with the family and takes his place in the
adoptive family, as if he had been born there, as far as
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possible. It is held that the son given in adoption gives up the
rights, which may be vested in him by birth, to the property of
his natural father if the adoption takes place in his father's
lifetime, and to that extent, the rights vested in him are divested
after adoption. This Court, thus, held as under;
"If the divesting of a vested interest so far is to be
allowed, I do not see any difficulty in holding that even if
the estate of the natural father be wholly vested in the
boy before adoption, he is divested of it when he is given
in adoption. It seems to me that there is nothing
repugnant to Hindu Law in thus insisting upon what is a
necessary incident of an adoption and in preventing an
adopted son from taking away with him to his adoptive
family the property, which may have devolved upon him
in the family of his birth. The divesting of vested estates is
by no means an uncommon incident of adoptions under
certain circumstances, and seems to me to be quite
consistent with the Hindu Law."
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26. This Court dealt with one of the arguments, that if the
adopted son can take his self-acquired property with him and is
under no obligation to leave it in the family of his birth, there is
no reason why he should be treated differently with reference
to the property, which has vested in him exclusively on the
death of his father before the adoption. While dealing with this
argument, it was held as under:
"But this argument ignores the difference between his
self-acquired property and the estate which has become
vested in him exclusively on his father's death. In one
case the property is his own, and in the other it is the
property of his natural father. The text of Manu refers to
the estate of the natural father, and the mere fact that he
is dead at the time of adoption and that it has become the
property of his son at the time does not change the
character of the property for the purposes of the rule laid
down by the text, and it cannot be treated as his self-
acquired property."
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27. Learned counsel for the appellant also relied upon the
decision of this Court in the case of Bai Kesarba, which
followed the decision of Dattatraya Devli. In the facts of the
said case, the plaintiff therein had alleged that on the adoption
of defendant no. 1 therein, his right to the estate of biological
family was extinguished, and in accordance with the custom of
lineal primogeniture in the family, the plaintiff became entitled
to succeed to the estate. It was observed that the decision of
Dattatraya Devli was approved subsequently by the Privy
Council in Raghuraj Chandra v. Subhadra Kunwar4, so far as it
proceeds on the fundamental idea that the son given in
adoption gives up the natural family and everything connected
with the family, including the right to property, which had
become vested in him before the date of his adoption.
28. Thus, the legal principles regarding the effect of adoption
can be summarised to mean that the distinction between self-
acquired property and the estate, which had become vested
exclusively on father's death, is to be seen to ascertain the
effect of adoption. In one case, the property is self-owned, and
4 (1928) L. R. 55 I.A. 139 at p.148
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in the other, it is the property of the natural father. The mere
fact that the father is dead at the time of adoption and that it
has become the property of his son at the time does not
change the character of the property, and it cannot be treated
as his self-acquired property. Thus, adoption will divest the
adopted son of right devolved through his natural father.
However, in the case of self-owned property, adoption will not
divest the adopted son from the property acquired before his
adoption.
29. In view of the aforesaid legal principles regarding the
adoption, the nature of the property must be ascertained to
decide whether to divest a property held by a person before
adoption. Learned counsel for respondent no.1 relied upon the
decision of the Hon'ble Apex Court in the case of Omprakash
Sharma. To correctly understand the legal principles, it is
necessary to refer to the facts briefly. The facts of the said case
are as follows:
(a) One Jaganath purchased the property in question in the
name of his wife Moni. The plaintiff therein claimed that
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her husband Sitaram was adopted in 1942 by Jagannath
and Moni. She was married to Sitaram in 1945, and
Sitaram died in 1946. Trial Court held that the property
was of Jagannath and accepted the adoption theory.
Thus, the trial court held that Moni and the plaintiff had
half share each; on death of Moni, her half share
devolved upon her natural daughter Gomati, and on
death of Gomati, her share devolved upon her adopted
son, the defendant. Therefore, it was held that the plaintiff
and defendant both had half share each.
(b)In an appeal before the High Court, it was held that the
property was not a benami transaction in the name of
Moni and that she was the absolute owner pursuant to
the sale deed in her name. The theory of adoption of
Sitaram was disbelieved. Sitaram was nephew of
Jagannath and Moni; therefore, it was held that he would
not be entitled to any share and the property would
devolve upon the natural daughter of Jagannath and
Moni, i.e. Gomati. Since the adoption of Sitaram was not
accepted, the High Court did not go into the issue of
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adoption of the defendant by Gomati and a gift deed
executed by her in favour of the defendant. Therefore,
the High Court allowed the defendant's appeal and
dismissed the cross-objections of the plaintiff. The
Hon'ble Apex Court dismissed the plaintiff's appeal and
confirmed the decision of the High Court.
30. In view of the aforesaid facts, the Hon'ble Apex Court
discussed the practice in India of purchasing property by a
husband in the name of his wife, which was a specie of benami
purchase that had been prevalent in India since ancient times.
The Hon'ble Apex Court observed that the purchase of
immovable property by a husband in the name of the wife to
provide the wife with a secured life in the event of the death of
the husband was an acknowledged and accepted feature of
Indian life which even finds recognition in the Explanation
clause to Section 3 of the Benami Transactions (Prohibition)
Act, 1988. It was thus, held that such prevalent practice is a
fundamental feature that must be kept in mind while
determining the nature of a sale/purchase transaction of
immovable property by a husband in the name of his wife,
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along with other facts and circumstances which has to be taken
into account in determining what essentially is a question of
fact, namely, whether the property has been purchased
benami.
31. The Hon'ble Apex Court also referred to the well-
established principles of law for determining the true nature of
the transaction. The legal principles relevant to the facts of the
present case are found in paragraphs 11 and 12 of the decision
of Om Prakash Sharma, which reads as follows:
"11. The "other" relevant circumstances that should go
into the process of determination of the nature of
transaction can be found in Jaydayal Poddar v. Bibi
Hazra [Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3 :
AIR 1974 SC 171] which may be usefully extracted
below: (SCC pp. 6-7, paras 6-7)
"6. It is well settled that the burden of proving that a
particular sale is benami and the apparent purchaser is
not the real owner, always rests on the person asserting
it to be so. This burden has to be strictly discharged by
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adducing legal evidence of a definite character which
would either directly prove the fact of benami or establish
circumstances unerringly and reasonably raising an
inference of that fact. The essence of a benami is the
intention of the party or parties concerned; and not
unoften, such intention is shrouded in a thick veil which
cannot be easily pierced through. But such difficulties do
not relieve the person asserting the transaction to be
benami of any part of the serious onus that rests on him;
nor justify the acceptance of mere conjectures or
surmises, as a substitute for proof. The reason is that a
deed is a solemn document prepared and executed after
considerable deliberation, and the person expressly
shown as the purchaser or transferee in the deed, starts
with the initial presumption in his favour that the apparent
state of affairs is the real state of affairs. Though the
question, whether a particular sale is benami or not, is
largely one of fact, and for determining this question, no
absolute formulae or acid test, uniformly applicable in all
situations, can be laid down; yet in weighing the
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probabilities and for gathering the relevant indicia, the
courts are usually guided by these circumstances : (1) the
source from which the purchase money came; ( 2) the
nature and possession of the property, after the
purchase; (3) motive, if any, for giving the transaction a
benami colour; (4) the position of the parties and the
relationship, if any, between the claimant and the alleged
benamidar; (5) the custody of the title deeds after the
sale; and (6) the conduct of the parties concerned in
dealing with the property after the sale.
7. The above indicia are not exhaustive and their efficacy
varies according to the facts of each case . Nevertheless
No. 1 viz. the source, whence the purchase money came,
is by far the most important test for determining whether
the sale standing in the name of one person, is in reality
for the benefit of another."
(emphasis supplied)
12. The reiteration of the aforesaid principles has been
made in Binapani Paul v. Pratima Ghosh [Binapani
Paul v. Pratima Ghosh, (2007) 6 SCC 100] . The relevant
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part of the views expressed may be profitably recollected
at this stage: (SCC p. 113, paras 26-27)
"26. The learned counsel for both the parties have relied
on a decision of this Court in Bhim Singh v. Kan
Singh [Bhim Singh v. Kan Singh, (1980) 3 SCC 72]
wherein it has been held that the true character of a
transaction is governed by the intention of the person
who contributed the purchase money and the question as
to what his intention was, has to be decided by:
(a) surrounding circumstances,
(b) relationship of the parties,
(c) motives governing their action in bringing about the
transaction, and
(d) their subsequent conduct.
27. All the four factors stated may have to be considered
cumulatively. The relationship between the parties was
husband and wife. Primary motive of the transaction was
security for the wife and seven minor daughters as they
were not protected by the law as then prevailing. The
legal position obtaining at the relevant time may be
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considered to be a relevant factor for proving peculiar
circumstances existing and the conduct of Dr Ghosh
which is demonstrated by his having signed the
registered power of attorney."
emphasis applied
32. Thus, the legal principles can be summarised as under:
(a) The distinction between self-acquired property and the
estate, which had become vested exclusively on father's
death, is to be seen to ascertain the effect of adoption.
(b) In one case, the property is self-owned, and in the other,
it is the property of the natural father. The mere fact that
the father is dead at the time of adoption and that it has
become the property of his son at that time does not
change the character of the property, and it cannot be
treated as his self-acquired property.
(c) Thus, adoption will divest the adopted son of right
devolved through his natural father. However, in the case
of self-owned property, adoption will not divest the
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adopted son from the property acquired before his
adoption.
(d) The burden of proving that a particular sale is benami
and the apparent purchaser is not the real owner, always
rests on the person asserting it to be so and this burden
has to be strictly discharged.
(e)The true character of a transaction would be governed by
the intention of the person who contributed the purchase
money and the question as to what his intention was.
(f) Adoption would mean entry into the adoptive family as a
person born in the adoptive family and severance from
the biological family.
(g) The self-owned property cannot be divested in view of
adoption.
CONCLUSIONS:
33. Applying the above principles, the findings recorded in
the present case by the first appellate court cannot be faulted.
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The first appellate court held that the right in the suit property
accrued in favour of respondent no. 1 before the adoption, and
such right cannot be divested. The first appellate court rightly
relied upon the application filed by Tatya after the adoption to
enter the name of defendant no. 1 in the revenue record. Filing
such an application by Tatya reveals his intention to purchase
the property exclusively for respondent no.1. Thus, Tatya's
intention, who paid the consideration amount, is seen from his
subsequent conduct to enter respondent no. 1's name in the
revenue record after his adoption, which reveals that the true
character of the transaction was to hold the property in the
name of respondent no. 1 as his absolute ownership. Thus,
mutation entry no. 2406 in the name of defendant no.1,
represented through his adoptive mother, is correctly
interpreted to mean that the suit property was an independent
property of defendant no.1. There is no reason to interfere with
the findings recorded by the first appellate court to set aside
the trial court's judgment and decree.
34. In the present case, the adoption is dated 12 th September
1940; hence, reference to Section 12 of The Hindu Adoptions
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and Maintenance Act 1956 ("Adoption Act of 1956") by both the
Courts was unnecessary. Therefore, the law prevailing prior to
1956 is discussed in the above paragraphs. The legal
principles summarised in the above paragraphs are regarding
adoptions prior to the Adoption Act of 1956.
35. Thus, for the reasons recorded above, the adoption deed
would have no legal effect on defendant no.1's right, title and
interest created in his favour in view of the registered sale
deed. Thus, the first appellate court was right in interfering with
the findings recorded by the trial court and correctly set aside
the trial court's judgment and decree and dismissed the suit.
Hence, both the questions of law are accordingly answered in
favour of defendant no.1.
36. Hence, for the reasons stated above, the second appeal
is dismissed. The impugned judgment and decree dated 15 th
October 2011 passed by the learned District Judge - 1, Vaduj
in Regular Civil Appeal No. 30 of 2010, dismissing the suit, is
confirmed.
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date: (GAURI GODSE, J.)
2025.02.14
06:36:11
+0200 Page no. 32 of 32
