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1978 Supreme(Bom) 213
IN THE HIGH COURT OF BOMBAY
( R. D. Tulpule J. )
BANABAI BHORAJI PATHARKAR and others Appellants.
v.
WASUDEO BHORAJI Respondent.
Second Appeal No. 114 of 1967
decided on 10-11-1978. (Nagpur)
Advocate appeared
For appellants and L. Rs. of the Appellant No. 5-J. N. Chandurkar.
For respondent-So N. Kherdekar.
An adopted son cannot claim ownership of property which vested in the adoptive mother before the adoption.
Headnote:
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 12 - ADOPTION - EFFECT - ADOPTED SON - RIGHTS IN PROPERTY - ADOPTION DOES NOT DIVEST ANY PERSON OF ANY ESTATE WHICH VESTED IN HIM OR HER BEFORE THE ADOPTION - ADOPTED SON CANNOT CLAIM OWNERSHIP OF PROPERTY WHICH VESTED IN ADOPTIVE MOTHER BEFORE ADOPTION - ADOPTIVE MOTHER CAN SELL THE PROPERTY DURING HER LIFETIME.
Fact of the Case:
Bhoraji died in September 1958 leaving behind a widow, Banabai, and several agricultural properties. On 20th February 1959, Banabai adopted Wasudeo, who filed a suit claiming possession of land S. No. 13/1 sold by Banabai to Ragho on 8th July 1960. Banabai challenged the adoption and contended that she became the absolute owner of the property under section 14 of the Hindu Succession Act, 1956.
Finding of the Court:
The lower courts held that there was an ante-adoption agreement by which the plaintiff had become the full owner of the property and was entitled to its possession and ownership. However, the High Court held that there was no ante-adoption agreement and that Banabai had not divested herself of the proprietary rights in the property.
Issues: 1. Whether there was an ante-adoption agreement by which the plaintiff had become the full owner of the property? 2. Whether Banabai had divested herself of the proprietary rights in the property?
Ratio Decidendi: 1. The adoption of Wasudeo on 20th February 1959 did not divest Banabai of the ownership of the property which had vested in her by reason of inheritance to Bhoraji. (Paragraph 25) 2. Section 12 of the Hindu Adoptions and Maintenance Act, 1956, provides that the adoption takes effect from the date of adoption and that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. (Paragraph 18) 3. The adoption deed of 20th February 1959 did not contain any ante-adoption agreement by which Banabai had divested herself of the proprietary rights in the property. (Paragraph 25)
Final Decision: The appeal was allowed, and the sale of land S. No. 13/1 by Banabai to Ragho was upheld.
2. Banabai then filed a suit being Civil Suit No. 118-A of 1959 challenging the adoption by her of Wasudeo. That suit ultimately came to be dismissed by the trial Court and was also dismissed in appeal being Civil Appeal No. 223·A of 1960 on 28th November 1961. The adoption, therefore, was held legal and valid. On the 8th of July 1960 of the properties belonging to Bhoraji Banabai sold one land S. No. 13/1 admeasuring 4 acres 10 gunthas of village Nimbhora in Akot tahsil to one Ragho.
3. The present suit, namely, Regular Civil Suit No. 14 of 1963 was filed on the 16th of January 1963, wherein the plaintiff Wasudeo claimed a number of reliefs and, in particular, possession of land S. No. 13/1 of Nimbhora sold to Ragho. He set out in the plaint the circumstance that the plaintiff was an adopted son, and that the plaintiff was adopted as a result of the negotiations between the parties and an ante-adoption agreement preceding thereto. By that ante-adoption agreement, according to Wasudeo, he was to get "all rights of a natural born son to Banabai and deceased husband Bhoraji." Banabai also agreed, according to Wasudeo, that Wasudeo should become the owner of all the moveable and immoveable properties of Banabai and Bhoraji upon his adoption, and that Banabai was to be entitled only to maintenance and residence in the house. I~ was Wasudeo who was to have the right of management, possession and ownership of all moveable as well as immoveable properties. He then referred to the litigation after the adoption commenced by Banabai and the ultimate result therein. It is his complaint that the sale, therefore, by Banabai of S. No. 13/1 on the 8th of July 1960 in favour of Ragho was invalid and Banabai had no right or ownership to the property. It was his contention that Banabai in collusion with the other defendants had taken forcible possession of the land and are continuing in possession. That in Criminal Case No. 74 of 1960 which was pending before the Sub-Divisional Magistrate, Akot under section 145, Code of Criminal Procedure, was decided against him and, it is, therefore, that Wasudeo has been driven to filing this suit.
4. Wasudeo claimed a number of alternative and other reliefs. In the circumstances it has now transpired that these prayers and reliefs do not now become material and important. But it may be stated that in substance. Wasudeo's suit was for possession of all the properties which are set out in the Schedules A and B of the plaint and also for declaration and possession of land including survey No. 13/1 which was sold to Ragho and which, as he stated in the plaint, was not binding upon him.
5. The defendants resisted the suit. It may be stated that the principal defence of the defendants was that there was no ante-adoption agreement. Banabai challenged the adoption also and contended that the adoption will have only such effect as flows from the provisions of the Hindu Adoptions and Maintenance Act, 1956. She contended that she has become the absolute owner of the property under section 14 of the Hindu Succession Act on the death of Bhoraj1 and, therefore, the plaintiff has no right to claim the property. As regards the land S. No. 13/1. she stated that she was entitled to sell this property and sold it for a consideration of Rs. 1,000 on 8th July 1960. That sale deed, according to her, could not be challenged. The other defendants adopted her written statement.
6. Both the Courts below held that there was an ante-adoption agreement by which the plaintiff had become the full owner of the property and was entitled
