Judgment

VAIDIALINGAM, J. :- This appeal by special leave is directed against the judgment and decree dated 9-9-1966 of the Bombay High Court dismissing summarily first appeal No. 676 of 1966 filed by the plaintiff-appellant.

2. The facts leading up to the dismissal of the said appeal may be stated. The plaintiff instituted special suit No. 62 of 1964 in the court of the Civil Judge (Senior Division) Thana for a declaration that the gift deed dated 30-3-1943 executed by his adoptive father in favour of the first respondent herein was void. He further asked for a declaration that the second respondent herein was not entitled to execute the decree that he had obtained against the first respondent for specific performance in special suit No. 3 of 1963. The appellant was adopted by Vishnu Raghunath Junnarkar alias Baburao on February 25, 1941. The adoptive father, according to the plaintiff had received cash and ornaments of the value of about Rs. 3000/- from his father and the said assets constituted ancestral property in his hands. Baburao was also receiving some income from a family temple, apart from certain other items of income received by him as salary from the Public Works Department. It was the case of the plaintiff that his adoptive father, from and out of the family assets in his hands, had purchased a plot of land on May 5, 1939, for about Rs. 1000/- and also constructd a house in 1940 for about Rs. 10,000/-. The ancestral assets having been utilised for the purchase of the land and the construction of the house, it was a further case of the plaintiff that they both constituted ancestral property which his adoptive father had no power to deal with. On adoption by Vishnu Raghunath Junarkar on February 25, 1941, he had become a coparcener in the family of Vishnu and in consequence was entitled to a share in the assets and the properties owned by the adoptive father.

3. Nevertheless the adoptive father executed a gift deed on March 30, 1943 in favour of the first respondent, the adoptive mother. Baburao died on October 17, 1946. The first respondent executed an agreement in favour of the second respondent herein regarding the house on November 28, 1962. According to the terms of the agreement the first respondent was to convey the land and the building (the suit properties) to the second respondent for Rs. 20,000/-. As the sale deed was not executed, the second respondent filed special suit No. 3 of 1963 for specific performance on March 3, 1963 and obtained a decree on April 30, 1964. The plaintiff claimed to have knowledge of the decree in the suit only when the second respondent was attempting to dispossess the plaintiff and his adoptive mother, the First respondent, from the suit premises. In view of these circumstances the plaintiff-appellant prayed for a declaration as stated above.

4. The first respondent filed a written statement accepting the allegations in the plaint as correct. The second respondent contested the claim on various grounds. According to him, Baburao did not have ancestral property in his hands. On the other hand Baburao was in Government service as overseer in the State P.W.D. He was also giving assistance to various other person in the matter of construction and as such he was getting other income. In view of the very low cost of living, he was able to put by a major portion of his income from and out of which Baburao purchased the suit plot and constructed the house thereon. The second respondent further pleaded that the present suit had been filed at the instance of his adoptive mother in order to defeat the decree in the specific performance suit. He further contended that the plaintiff had not been adopted by Baburao and that the suit was barred by limitation.

5. The Trial Court found in favour of the plaintiff and held that he had been adopted by Baburao. The contention of the second respondent that the suit was barred by limitation was rejected. But on the main question regarding the character