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15_sa_394_2021.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.394 OF 2021

WITH

INTERIM APPLICATION NO.820 OF 2019

WITH

INTERIM APPLICATION NO.3496 OF 2021

IN

SECOND APPEAL NO.394 OF 2021

Ballal Sidhivinayak Dev through

Vahivatdar and Ors.

...Appellants

Versus

Deepak Chintamna Patkar

...Respondent

….

Mr. Rohit D. Joshi for the Appellants.

Mr. Prakash Mahadik with Mrs. B. Shenoy for the Respondent.

CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 8^th MARCH, 2022.

P.C.:-

1.

The Appellant-Plaintiff has challenged the judgment dated

13/06/2019 whereby the learned District Judge-1, Raigad dismissed Civil

Appeal No.217 of 2013 and thereby confirmed the judgment dated

30/08/2013 passed by the learned C.J.J.D. in R.C.S. No.65 of 2010.

2.

The Appellants (hereinafter referred to as the ‘

plaintiffs’

) had

filed a suit for declaration and injunction in respect of the land under Gut

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No.133 of village Mhatrolipada, Taluka -Alibag, District -Raigad. It was

the case of the Plaintiffs that the said land was originally owned by

Govind Balkrishna Tendulkar, who had two sons by name Dhundiraj and

Chintaman. The Plaintiffs claim right to the property through Dhundiraj.

They claim that Chintaman was given in adoption and prior to adoption

he had bequeathed his right in respect of the suit property in favour of

Shri Ballal Siddhivinayak Dev (Temple trust). The Plaintiffs claim that

they are in possession of the entire property.

3.

The Respondent (hereinafter referred to as ‘

Defendant’

), who

is claiming right through Chintaman claimed that Dhundiraj and

Chintaman had effected partition of the ancestral property and by

partition deed drawn on 09/12/1950, the suit property (old Survey

No.90) was allotted to Chintaman and mutation entry No.1991 was

effected on the same day. The Defendant denied that Chintaman had

executed a gift deed in favour of Shri Ballal Siddhivinayak Dev. He

further claimed that the Plaintiffs are in no way associated with Ballal

Devasthan. The Plaintiffs are not in possession of the suit property and

have no right, title or interest in the suit property.

4.

The Trial Court after considering the evidence on record held

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that the Plaintiff has failed to prove that Chintaman had gifted the

property in favour of Shri Ballal Siddhivinayak Dev. The learned Judge

has also held that by virtue of Section 12 of the Hindu Adoptions and

Maintenance Act, 1956 that the property had already vested in Chintaman

even prior to his adoption and by virtue of proviso to Section 12 it

continued to vest and pass on to him after his adoption. The Trial Court

therefore held that the Plaintiff had failed to prove that he is the absolute

owner of the property and hence dismissed the suit. The Appellate Court

confirmed these findings and dismissed the appeal. Hence, the second

appeal.

5.

Mr. Rohit Joshi, learned counsel for the Appellant-Plaintiff

submits that once Chintaman was given in adoption he ceased to have any

right, title and interest in the property inherited by him prior to his

adoption. He submits that the courts below have erred in applying clause

(b) of Section 12 of the Hindu Adoption and Maintenance Act in as much

as Chintaman had already gifted the property to Ballal Devasthan (temple

trust) even prior to his adoption. He has relied upon the decision of this

Court in Devgonda Raygonda Patil vs. Shamgonda Raygonda Patil and his

heirs and Anr. 1992 AIR (BOM) 189.

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6.

Per contra, Mr. Prakash Mahadik, learned counsel for the

Respondent-Defendant submits that the suit property was allotted to

Chintaman in the partition effected on 09/12/1950. The learned counsel

submits that since the property had vested in Chintaman prior to his

adoption by virtue of Clause (b) of Section 12 of Hindu Adoption Act, the

same continued to vest in him even after his adoption. He s