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1994 Supreme(Bom) 591
IN THE HIGH COURT OF BOMBAY
S.D. Pandit, J.
Tanaji Rau Kurlekar.... Appellant.
Versus
Sonubai wife of Sakharam Shelar and others.... Respondents.
Second Appeal No. 374 of 1982, decided on 18-10-1994.
Advocates appeared :
G.S. Godbole for Y.S. Jahagirdar, for the appellant.
N.V. Walawalkar, for respondents Nos. 2, 3 and 4.
R.S. Apte with S.M. Dhurap, for respondent No. 1.
Headnote:Section 13.
See Hindu Succession Act, 1956-Section 14.
Section 14-Hindu Adoption and Maintenance Act, 1956, Section 13-Scope.
Admittedly, husband had died in the year 1942 and the adoption in question has taken place on 7th June, 1963 and in the meantime the Hindu Adoptions and Maintenance Act, 1956 came into force in the year 1956. If the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 are c6i1sidered, then it will be quite clear that the said provisions clearly lay dowa that where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. It must be remembered that R was the last male coyarcener of the family and he died in the year 1942 leaving behind his widow and three daughters. After the provisions of Hindu Succession Act, in 1956 came into force, by virtue of Section 14. Babai had become the absolute owner of the property in question. It must be remembered that by virtue of the provisions of Section 14 of Hindu Succession Act, 1956; the property in question had not vested in her, but she had become the absolute owner of the property which was in her possession. Therefore, once she has become the absolute owner of the property in question, merely because she has taken appellant Tanaji in adoption, she would not lose her ownership to the property which has become of her absolute ownership.
If the provisions of Section 13 are considered, then it is quite clear that the absolute ownership of the father or the mother to transfer the property inter vivos or by will could come to an end only by an agreement to the contrary. Therefore, when a person wants to claim that the adoptive mother has lost her ownership to the property and that she has no right to dispose of the said property, then he must show that there was an agreement as contemplated by Section 13 of the Hindu Adoptions and Maintenance Act,1956.
In order to bring a case under Section 13 of the Hindu Adoptions and Maintenance Act, 1956, thers must be an independent agreement prior to adoption, by which the widow must have relinquished her rights in the property in question.
After coming into force the provisions of the Hindu Adoptions and Maintenance Act, 1956, Section 12 of the said Act clearly lays down that an adoptive child, shall be deemed to be the child of his or her adoptive mother or father for all purposes with effect from the date of the adoption. It must be remembered that on the death of Rau, the property had devolved on Babai and in view of the provisions of Section 14 of Hindu Succession Act, 1956 she had become the absolute owner. If the submissions by the learned advocate for the appellant are to be accepted, then it will have to be held that the half of the property had remained in abeyance from 1942 till the date of adoption.
2. One Rau Kurlekar of village Mhasave, Taluka Kondawe, Nune, died in the year 1942 leaving behind him his widow Babai and three daughters Sonubai, Gangubai and Girajabai. The present appellant Tanaji is a genetive son of Gangubai. On 8th June, 1963 this Tanaji, who is the appellant herein, was taken in adoption by Babai and on the 8th June, 1963 a deed of adoption took place and it was also registered. The appellant had initially filed a suit through his natural father and guardian against his adoptive sisters Sonubai and heirs of Girajabai to get a partition and separate possession of his 1/2 share in the suit property. After the death of his adoptive mother, Babai on 21st February, 1972, he amended his plaint and claimed possession of the entire suit property and retained his prayer of partition and separate possession of half share as an alternative relief. It was his claim that after his adoptive mother had filed Misc. Application No. 9 of 1967 in the District Court of Satara, by the order dated 28th July, 1968 his natural father was appointed as a guardian of his person and the Court of Wards was appointed as guardian of the suit property. It was his further contention that defendants 2, 3 and 4 had obtained fraudulent, sham and bogus sale-deeds from Babai and defendant No. 1 and Babai had also executed a sham and bogus gift deed on 25th March, 1969 in favour of defendant No. 1 Sonubai.
3. The defendant No. 1 contested the claim of the appellant-plaintiff by filing written-statement at Exh. 24 and additional written-statement at Exhibit 63. The defendant No. 1 contended that the plaintiff was not at all adopted by her mother Babai and her mother Babai during her own lifetime had disputed the adoption of the plaintiff. According to defendant No. 1, the adoption deed was obtained by plaintiffs mother Gangubai and her husband by practising fraud on Babai. Similarly, the consent of Babai was also obtained for partition by practising fraud and by misrepresenting her and though the said order was passed, the Court of Wards i.e. the Collector had never taken possession of the property in question. She further contended that the gift deed executed by her mother in her favour on 25th March, 1969 was rightly executed. She also contended that defendants 2, 3 and 4 got the bogus sale deeds executed in their favour from her as well as from her mother. Thus, she disputed the plaintiffs claim as well as the transfer of the property in favour of defendants 2, 3, and 4.
4. The defendant No. 2 contested the claim of the plaintiff by filing written-statement at Exh. 25. He also challenged the adoption of the plaintiff and contended that the sale deeds executed in favour of defendants 3 and 4 were quite bona fide and valid ones and that they were bona fide purchasers for value. The defendant No. 2 further contended that the plaintiffs claim was barred by the law of limitation. Thus, the defendants contended that the plaintiffs suit be dismissed with costs.
5. The defendants 3 and 4 have adopted the contentions raised by the defendant No. 2 by filing Pursis, at Exh. 26. The defendant No. 5 had also challenged the adoption of the plaintiff by filing his written-statement at Exhibit 31.
6. In view of the rival pleadings, the trial Court had settled as many as 22 issues at Exh. 32 and recorded evidence for both the sides. The trial Court found that the plaintiff was duly adopted by Babai, but the trial Court did not accept the contention of the plaintiff that he had become the absolute owner of the suit property as Babai had relinquished her rights in the said property. The trial Court found that Babai had become absolute owner of the suit property. The trial Court further held that Babai could not have gifted the property in favour of defendant N
