Bombay High Court
Ramdas Nago Chaudhary vs Rukhmabai Alias Ladabai Shravan ... on 12 March, 2025
2025:BHC-AUG:7897
1 sa323.95 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 323 OF 1995
Ramdas s/o Nago Chaudhary
Age : 30 years, Occ. Nil.
R/o; Bahadarpur, Post Bahadarpur,
Taluka Parola, District Jalgaon. ...APPELLANT
(Original Defendant)
VERSUS
1) Rukhmabai alias Ladabai w/o
Shrawan Chaudhari,
Age; 56 years, Occ; Nil,
R/o; Teli Talav, Sada Dharangaon,
Tq. Erandol, District Jalgaon. ...Dead
(Through Lrs.)
1-A) Deokabai Pandit Chaudhari,
Age; Major, Occ. Household,
R/o; Bhokari Post, Warkhadi,
Tq. Pachora, District Jalgaon.
1-B) Pushpabai w/o Devidas Chaudhari,
Age; Major, Occ. Household,
R/o : Galli No. 9, Dhule, Tq. & Dist Dhule
1-C) Rambhabai Pundlik Chaudhari,
Age; Major, Occ; Agril,
R/o; Dharangaon Navegaon,
Tq. Dharangaon, Dist. Jalgaon,
1-D) Gajanan Shrawan Chaudhary,
Age; Major, Occ. Agril,
R/o; Post Dharangaon, Navegaon,
Tq. Dharangaon, District Jalgaon. ...RESPONDENTS
(Original Plaintiffs)
................
Mr.S.V. Dixit : learned Advocate for Appellant
Mr.D.A. Madake : learned Advocate for Respondents
...............
CORAM : S. G. CHAPALGAONKAR, J.
Date : 12.03.2025
2 sa323.95 judgment
JUDGMENT :
1. Appellant/Original defendant impugns judgment and decree
dated 27.07.1995 passed by learned District Judge, Amalner in Regular
Civil Appeal No. 220 of 1989, thereby reversing judgment and decree
dated 19.03.1988 passed by learned Civil Judge, Junior Division, Parola,
Dist. Jalgaon in Regular Civil Suit bearing No.25 of 1984. (Hereinafter
parties are referred to by their original status in the suit.
2. Respondent/Plaintiff filed Regular Civil Suit No. 25 of 1984
before Civil Judge, Junior Division, Parola, District Jalgaon seeking decree
for partition, declaration and possession with consequential relief and
mesne profit qua land Gut No. 54, admeasuring 3 H 77 R and a House
property No. 70, situated at Bahadurpur, Tq. Parola. Plaintiff further
claims that adoption of defendant by deceased Gojarabai is void ab-initio.
In alternate a prayer is made that plaintiff and defendant being legal
representatives of Gojarabai are entitle to have a share in suit property.
According to plaintiff, her father Nago Raghav Chaudhary expired 15 to 16
years prior to filing of suit, leaving behind her mother Gojarabai and
plaintiff. Gojarabai expired on 04.08.1983. On her death, defendant
recorded his name over suit property. According to plaintiff, Gojarabai
adopted defendant vide adoption deed dated 05.03.1979, which is invalid.
After death of Gojarabai, suit property has been taken over in possession
by defendant, although, name of plaintiff is mutated over suit property as
described in Clause-A of plaint.
3 sa323.95 judgment
3. Defendant refuted plaintiff's claim contending that Nago
Chaudhari has left no property. Suit property was purchased and owned
by Gojarabai (second). She had no issue from marriage with Nago
Chaudhari. Nago Chaudhari had his first wife namely Gojarabai (first).
Plaintiff is his daughter from first wife Gojarabai. Plaintiff is legal
representative of Nago Chaudhari from his first wife Gojarabai. Defendant,
who is nephew of Gojarabai (second) was adopted by her under registered
adoption deed. Defendant is sole legal representative of Gojarabai (second)
on the basis of adoption deed. Plaintiff cannot claim any right in property
left by Gojarabai (Second) in capacity of legal representative of Nago
Chaudhari.
4. Trial Court framed issues based on pleadings of parties,
recorded evidence, eventually accepted case of defendant and dismissed
suit holding that plaintiff is not entitled for declaration and possession as
prayed since defendant is adopted son of Gojrabai (second). However, in
appeal filed by plaintiff, learned District Judge passed decree in favour of
plaintiff declaring her as sole owner of suit property holding that adoption
of defendant is null and void, eventually directed defendant to hand over
peaceful possession of suit property to plaintiff.
5. This Second Appeal was posted before this Court for
admission on 05.09.1995 and came to be admitted on ground No. 18,
stipulated in second appeal memo as a substantial question of law, which
reads as thus :
4 sa323.95 judgment
SUBSTANTIAL QUESTION OF LAW :-
" Whether lower Appellate Court failed to appreciate that the
prohibition contained in Section 10 (iv) of the Hindu Adoption
and Maintenance Act, 1956, against the person adopted who
has completed the age of 15 years has no meaning in relation
to male persons adopted in the territories which were
comprised in the former state of Bombay as the customs
permitting the adoption over the age of 15 years is expressly
saved by Section 10 (iv) of the said Act. "
6. Mr. Dixit, learned Advocate appearing for appellant submits
that appellate Court decreed suit of plaintiff holding that adoption of
defendant by Gojarabai was illegal since defendant had passed over age of
15 years. He would submit that provisions contained in Section 10 (iv) of
the Hindu Adoption and Maintenance Act, 1956 (Hereinafter referred to as
"the Act" for the sake of brevity) would not apply in State of Maharashtra
(former State of Bombay), where, custom regarding adoption of male above
15 years had been in practice and same has been approved by judicial
pronouncements. In support of his contention he relied upon judgment of
this Court in case of Haribai Vs. Baba Anna and Another,1 the Full Bench
Judgment of this Court in the case of Aniruddh Jagdeorao vs. Babarao
Irbaji and Others,2 also a judgment of Supreme Court in case of Kondiba
Rama Papal @ Shirke (Dead) his Lrs. vs Narayan Kondiba Paopal. 3
7. Per Contra, Mr. D.A. Madake, learned Advocate appearing for
respondent supports judgment and decree passed by appellate Court.
According to him, adoption of defendant who was admittedly above 15
years of age at the time of adoption, cannot be treated as valid in absence
of proof of custom. In present case, there is no evidence of prevailing
1 1978 Mh.L.J.127
2 AIR, 1983, Bom. 391
3 (1991) 2 SCC 218
5 sa323.95 judgment
custom of adoption of male crossing 15 years of age. He points out that
even there is no pleading as to existence of such custom in written
statement filed by defendant. Therefore, he justifies judgment and decree
of appellate Court. In support of his contention he relies upon judgment of
this Court in Shivankar Vs. Muktabai w/o Govindrao Mate, 4and judgment
of Supreme Court in case of Atluri Brahmanandam Vs. Anne Sai Bapuji5.
8. Having considered submissions advanced and perusal of
reasoning as adopted by Courts below, facts which are crystallized and
relevant for consideration in this appeal are that, suit property has been
purchased by Gojarabai (Second). Before marriage of Gojarabai (Second)
with Nago Chaudhari, he had a wife namely Gojarabai (First). Plaintiff is
daughter of Nago Chaudhari from Gojarabai (First). Deceased Nago
Chaudhari had no issue out of wedlock with Gojarabai (Second). On
05.03.1980 Gojarabai (Second) adopted defendant under registered
adoption deed. Gojarabai (Second) expired on 04.08.1983 leaving behind
defendant/adopted son. Plaintiff mutated her name in R.O.R. on
23.02.1984 as step daughter of Gojarabai (Second)
9. Trial Court answered issue No. 3 in favour of defendant
holding that challenge to adoption by plaintiff has been barred by
limitation. However, appellate Court observed that challenge to adoption is
well within limitation and declared adoption to be invalid in view of
Section 10 (iv) of the Hindu Adoption and Maintenance Act, 1959.
4 2014 (3) ABR 788
5 AIR (2011) SC 545
6 sa323.95 judgment
10. In light of aforesaid controversy and substantial question of
law as framed, first point requires consideration is as to application of
Clause- (iv) of Section 10 of Act in facts of case. However, before entering
into aforesaid legal aspect, it can be observed that defendant is relying
upon registered adoption deed which raises presumption under Section 16
of the Hindu Adoption and Maintenance Act. Section 16 of the Act reads
as 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."
11. Language of Section 16 would show that once adoption is
registered and signed, person giving and person taking child in adoption
presumption as to compliance with provisions of the Act would arise
unless and until it is disproved. Apart from registered document of
adoption defendant has relied upon evidence of power of attorney who has
deposed about process of adoption. Defendant has also placed on record
photographs of adoption ceremony at Exh. 41. Evidence of Photographer
Mr. Bhavsar is recorded. Stamp Vendor (Scribe) Mr. Sonar also proved
fact of adoption. However, appellate Court refused to accept validity of
adoption merely on the ground that defendant was above 15 years of age
at the time of adoption.
12. Section 10 (iv) of Hindu Adoption and Maintenance Act
7 sa323.95 judgment
declared that person who completes age of 15 years is incompetent for
adoption, unless there is custom or usage applicable which permits
person who has completed age of 15 years can be taken in adoption. The
issue as to validity of adoption of person aged more than 15 years was
first time considered by Division Bench of this Court in case of Haribai
(supra). It has been observed that
"notwithstanding what was stated in the Dharmashtra
Books, the Bombay School of Hindu Law never recognized
any age limit for adoption. That is the legal custom and lex
lock generally among Hindus relating to adoption in this part
of the country, within the meaning of the definition of
'custom' under S.3(a) of the Hindu Adoptions and
Maintenance Act."
13. Thereafter, again issue cropped up for consideration
before Full Bench of this Court in case of Aniruddh (supra) is that
"2. Whether the words 'custom or 'usage' occurring in
section 10 (iii) and section 10 (iv) of the Hindu Adoptions
and Maintenance Act, 1956, read along with section 3 (a) of
the said Act includes within its sweep the rules of the
Bombay School of Hindu Law (Mayukha) or interpretation of
the text thereof by the Courts."
It has been observed that
"This practice of taking married persons and boys over 15
years of age in adoption in the regions which are governed by
the Bombay School of Hindu Law has been consistently
recognized by the Bombay High Court. The cases which
have done so are numerous and many of them have been set
out by Vaidya J. who spoke for the Bench in the case of
Haribai Vs. Baba Anna In Lala Rup Chand Vs. Jambu
Parshad, the Judicial Committee of the Privy Council held
that under the general Hindu Law applicable to twice born
class, a boy could not be adopted after his marriage, but that
there were two exceptions to this rule, namely, (i) in the case
of persons governed by the Mayukha, and (2) where there
was a custom to that effect."
14. Lastly Supreme Court of India in case of Kondiba (supra)
8 sa323.95 judgment
observed that that
"so far as Bombay State is concerned the position is well
settled in view of more than one judicial decision. As
pointed out in Mulla's Hindu Law (14th Edn. At page 550) in
the Bombay State a person may be adopted at any age
though he may be older than the adopter and though he
may be married and have children.
The adoption is not invalid although it took place
after the thread ceremony of the boy was performed. Thus
the custom is judicially recognized in the Bombay State as
regards adoption of a child at any age. Once the custom is
judicially recognized, it is not required to be independently
proved in subsequent cases. The plaintiff and defendant 1
belonged to the area which was part of the old Bombay
State and accordingly such a custom prevailed amongst
them as regards adoption of a child at any age."
15. Mr. Madake, learned Advocate appearing for respondent relies
upon Single Judge decision of this Court in case of Shivankar (supra).
Perusal of said decision shows that it is rendered without reference of
three authoritative pronouncements from this Court and decision of
Supreme Court referred above. Therefore, it may not help respondent in
advancing her case. Second decision relied upon by Mr. Madake is from
Supreme Court in case of Atluri (supra), however, that case relates to
Community from Andhra Pradesh and may not be helpful to the
respondent.
16. In light of aforesaid exposition of law, customs which have
received judicial recognition in particular area do not require to be pleaded
and proved. In present case parties are from erstwhile Bombay State. The
custom of adoption of person above 15 years has been judicially
recognizes. Therefore, even in absence of pleading and proof as to
existence of custom, there is no reason to hold that adoption is invalid for
9 sa323.95 judgment
want of evidence as to custom. Apparently appellate Court ignored
aforesaid legal position, and declared adoption of defendant as invalid.
The substantial question of law, therefore, needs to be answered in
affirmative.
17. It is not in dispute that plaintiff is daughter of Nago
Chaudhari from his first wife. His second wife Gojrabai was owner of suit
property. Defendant being validly adopted son would inherit same as per
Section 15 (1) (a) and (b) of Hindu Succession Act which provides for
inheritance.
18. The appellate Court as well as Trial Court observed that
plaintiff would be entitled to inherit property of Gojrabai (Second), only if,
defendant fails to prove his adoption. However, once adoption of defendant
is held to be valid, plaintiff being step daughter of Gojrabai (Second) would
not be entitled to inherit her property. Defendant being validly adopted
son of Gojrabai (second) would be legally entitled to inherit her property
being Class-I heir. The step son and step daughter falls in Clause (b) of
Section 15 (1), therefore, plaintiff has no right to claim any right over suit
property. In result, Second Appeal is allowed. Judgment and decree
passed by appellate Court is quashed and set aside and judgment and
decree passed by trial Court is restored.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
