JUDGMENT - A.B. PALKAR, J.:---This is plaintiffs appeal filed against a decree dismissing his suit for possession on the basis of title in pursuance of his adoption by one deceased Gangavva, the wife of Gurubasappa Arali.

2.The suit property consists of one shop premises situate in the Taluka of Jat, at Jat Ward No. 3. Gram Panchayat Building No. 446 described with the necessary particulars in the plaint. According to the plaintiff, the suit shop belonged to deceased Gurubasappa Pamunappa Arali. He died long back and his property devolved on his wife deceased Gangavva who was the only heir at law to deceased Gurubasappa. Gangavva died on 11th October, 1978. As Gurubasappa and Gangavva had no issue. Gangavva decided to adopt the plaintiff after the death of her husband, according to the desire expressed by him during his life time, and therefore, she adopted present plaintiff. Plaintiffs natural father Gurulingappa gave plaintiff in adoption to Gangavva on 8th June, 1970. The adoption ceremony was performed as per the custom and religious rites and deed of adoption was registered on 10-6-1970.

3.The plaintiff was aged more than 15 years at the time of said adoption. However, the plaintiff belongs to lingayat community and in the said community there is a custom prevalent, according to which, a boy above the age of 15 years can be taken in adoption and in pursuance of this custom, the plaintiff was adopted by deceased Gangavva after the death of her husband. The plaintiff has become the owner of the suit property after the death of Gangavva being the only son (adopted) of Gangavva.

4.The defendant is the grandson of Gangavva's sister. He wanted to carry on grocery business, and therefore, the suit shop which was lying vacant was given to him as a licence, and he was permitted to carry on the business in the said shop some time from the year 1974. This licence was cancelled by a notice dated 25-4-1979 as the defendant failed to hand over the vacant possession, and the plaintiff is compelled to file this suit.

5.As against this, the defendant filed his written statement and denied that the plaintiff was adopted by deceased Gangavva. According to the defendant, as the plaintiff was more than 15 years age at the time of said adoption, he could not be adopted and the said adoption, if any, is abinitio void and illegal. There is no custom of taking a child of more than 15 years in adoption in the community to which the plaintiff and defendant belong. Gangavva was an old lady and she was not in a position to look after the entire property. She therefore, gave Power of Attorney to one Chandrashekhar Mallappa Bijargli and he was looking after that property. Gangavva had borrowed about Rs. 13,000/- from the defendant for her maintenance and for litigation expenses on 1-8-1976. She also borrowed Rs. 2,000/- more from the defendant and at her instance the power of attorney holder Chandrashekhar executed an agreement of sale for the consideration of Rs. 15,000/- which were advanced by the defendant to deceased Gangavva, and in pursuance of the said agreement, possession of the suit shop was given to the defendant. Sale deed was to be executed as per the convenience of the parties.

6.After the death of Gangavva, defendant repeatedly requested the plaintiff to perform the contract by executing a sale deed, but the plaintiff never executed sale deed, and defendant is, therefore, intending to file a suit against him. The suit is, therefore, liable to be dismissed. Although, it is not specifically pleaded, it is obvious that the defendant is in possession of the suit shop in pursuance of the contract of sale and his possession is protected in view of the provisions of section 53-A of the Transfer of Property Act.

7.On these pleadings the issues were settled by the learned trial Judge, and after scrutinising the oral and documentary evidence and after hearing the arguments, the learned trial Judge came to the conclusion that although, the factum of a

Click Here to Read the rest of this document