For a valid adoption under the Hindu Adoption and Maintenance Act, the biological parents must give the child in adoption, and the adoptive parents must take the child, which was not proven in this case.

JUDGMENT:

1. This appeal is preferred by defendant no. 2 to challenge the judgment and decree passed by the first Appellate Court allowing the plaintiffs’ appeal. The trial court had dismissed the suit for partition and separate possession. However, in an appeal preferred by the plaintiffs, the suit is decreed against defendant no. 2, thereby declaring that plaintiff nos. 1 to 3 and defendant no. 2 have 1/4^th share each in the suit property. Hence, this appeal by defendant no. 2.

2. The second appeal is admitted vide order date 21^st February 1994 on the following substantial questions of law:

“(1) Whether Defendant no. 2 was the adopted son of Pandurang?

(2) What is the legal effect of writing of adoption dated 18^th July 1985 Exhibit 62 executed by the adoptive mother?

(3) Whether the finding of the First Appellate Court to the effect that the defendant no. 2 was not the adopted son of Pandurang is perverse?”

Basic facts:

3. The parties are Gopala's heirs and legal representatives. Gopala had two sons, Ganu, who died on 25^th December 1953 and Pandurang, who died on 26^th March 1978. The plaintiff no. 3 is Ganu’s wife, and plaintiff nos. 1, 2 and defendant no. 2 are sons of Ganu and plaintiff no. 3. Defendant no. 1 is Pandurang’s wife. Pandurang and defendant no. 1 had no issues. Defendant no. 2, i.e. Nivrutti, biological son of Ganu and plaintiff no. 3 claims that Pandurang and defendant no. 1 adopted him. The plaintiffs claim that the suit properties are tenanted properties originally cultivated by Gopala. Defendants claimed that the suit properties were self-acquired by Pandurang, as he was a tenant in respect of the suit properties. Defendant no. 2 claims that he, being the adopted son of Pandurang and defendant no. 1, is exclusively entitled to the ownership of the suit property after the death of defendant no. 1.

4. The plaintiffs claim that the suit properties are ancestral joint family properties. They claim 1/4^th share in the suit property as Pandurang and defendant no. 1 died issueless, and thus, plaintiffs nos. 1 to 3 and defendant no. 2, being heirs of Ganu, were entitled to 1/4^th share each. The trial Court dismissed the suit by holding that the suit properties belonged to Pandurang and defendant no. 2, being the adopted son of defendant no. 1, was entitled to the suit properties. The first Appellate Court reversed the trial Court’s findings and disbelieved Defendant no. 2’s claim of being the adopted son of Pandurang and defendant no. 1. Defendant no.1 died pending the suit. Hence, the plaintiffs and defendant no. 2 are held entitled to equal shares.

Submissions on behalf of the appellant (defendant no. 2):

5. The submissions on behalf of the appellant are summarised as follows:

(a) Defendant no. 2’s adoption had already taken place during the lifetime of Pandurang. After Pandurang’s death, defendant no. 1 executed an adoption deed and confirmed the adoption that had already taken place during the lifetime of Pandurang. The adoption deed was admitted and marked as Exhibit 62 by accepting the oral evidence of the defendant’s witness no. 3 Janabai. Janabai had witnessed the adoption that had already taken place during Pandurang's lifetime. Hence, the adoption was validly proved as taken place during the lifetime of Pandurang, which was confirmed by defendant no. 1 by executing the adoption deed.

(b)The adoption had taken place 30 years prior to the recording of evidence of Janabai. Hence, the narration of the adoption process as deposed by Janabai may not have been accurate, but the oral evidence supports defendant no. 2’s contentions that adoption had taken place during the lifetime of Pandurang. All the documents produced on record indicated that defendant no. 2’s name was recorded on all the documents as the adopted son of Pandurang. The suit was filed for partition without any challenge to the adoption deed of defendant no. 2. In view of section 16 of The Hindu Adoption and Maintenance Act, 1956 (‘Adoption Act’) there was a