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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • M.L Dudhat, J.
Acts
  • S. 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act of 1956)
  • HINDU ADOPTIONS AND MAINTENANCE ACT 1956
  • Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • M.L Dudhat, J.
Acts
  • S. 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act of 1956)
  • HINDU ADOPTIONS AND MAINTENANCE ACT 1956
  • Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The plaintiff filed Special Civil Suit No. 398 of 1973 for possession of certain suit properties, asserting that he was the adoptive son of Sadu Memane and therefore entitled to possession of lands that originally belonged to Sadu. Sadu died on June 20, 1919; his wife Bhagubai purportedly adopted the plaintiff on June 21, 1973.

The defendants (brothers/nephews of Bhagubai) resisted the suit. They alleged that Bhagubai had, on May 17, 1948, executed a registered gift-deed (Ex. 87) conveying the suit lands to them, that they had been cultivating the lands since that date, and that in any event the alleged adoption was invalid or could not divest rights previously vested in others.

The trial court (4th Joint Civil Judge, Senior Division, Pune) on April 30, 1982 found that the plaintiff had not proved the adoption and dismissed the suit. The plaintiff appealed (Civil Appeal No. 815 of 1983) to the Joint Judge, Pune, which reversed the trial court, held the adoption proved, gave retrospective effect to the adoption (relating it back to Sadu's death in 1919), and directed the defendants to hand over possession to the plaintiff (judgment dated September 4, 1985).

The defendants appealed to the present court by way of second appeal. Separately, Mrs. Gokhale (appearing for the appellants-defendants) sought and was granted leave for an amendment to the second appeal based on legal grounds drawn from facts already on record.

Legal Issues Presented

  1. Whether the adoption of the plaintiff (adopted June 21, 1973) has retrospective effect so as to vest in him rights as of the date of the adoptive father's death (June 20, 1919), as held by the lower appellate court.
  2. What is the legal effect of the registered gift deed dated May 17, 1948 (Ex. 87) executed by Bhagubai in favour of the defendants, particularly in light of the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.
  3. Whether the plaintiff's suit, filed on September 19, 1973 while Bhagubai was alive, was premature/maintainable given the plaintiff's claimed status and the existence of the gift deed.
  4. Whether the defendants may rely on the gift as being made out of legal necessity (and thus valid), and whether the plaintiff was obliged to obtain a declaration challenging the gift-deed as a precondition to seeking possession.
  5. Whether, even if the gift-deed were invalid, limitation and adverse possession or other provisions (as interpreted by the court) would prevent the plaintiff from recovering the suit property after the Act(s) came into force.

Arguments of the Parties

Appellants-Defendants' Arguments (as presented by Mrs. Gokhale)

  • The suit is premature because it was filed while Bhagubai (the alleged adoptive mother) was still alive (suit filed September 19, 1973; Bhagubai died sometime in 1975), and an adopted son would acquire rights against the adoptive mother only after her death.
  • The registered gift-deed dated May 17, 1948 (Ex. 87) vests the suit properties in the defendants; the plaintiff did not seek a declaration that the gift-deed is not binding, and therefore the suit should be dismissed on that ground.
  • The gift in 1948 was made out of love and affection and on the facts constituted a valid gift (alleged "legal necessity" or justification was pleaded in the deed: Bhagubai lived with and was maintained by the defendants, treated them as sons, and gifted out of love and confidence in their maintenance of her).
  • In any event, Section 12 of the Hindu Adoptions and Maintenance Act, 1956 provides that an adopted child shall not divest any person of any estate which vested in that person before the adoption; therefore the plaintiff cannot divest the defendants of property vested in them before his adoption.

Respondent-Plaintiff's Arguments (as presented by Mr. Dalvi)

  • The plaintiff asserted that he was the adoptive son of Sadu and Bhagubai and therefore entitled to possession of the suit lands as successor of Sadu.
  • If the defendants rely on the gift-deed for title, the burden lies on them to prove that the gift was a valid gift made for legal necessity (i.e., to justify that the gift was valid even under Hindu law).
  • The plaintiff contended that the gift deed was invalid or void; if so, the gift could not support the defendants' possession and the plaintiff would be entitled to possession as successor by adoption.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Natvarlal Punjabhai v. Dadubhai Manubhai, AIR 1954 SC 61 Relied upon by the lower appellate court to support retrospective effect of an adoption (the ratio was applied with reference to adoption law operative prior to the Hindu Adoptions and Maintenance Act, 1956). The court held that this decision was not applicable to the facts of the present case because that case concerned adoption law before the Hindu Adoptions and Maintenance Act, 1956. The present adoption (1973) is governed by the 1956 Act, and so the lower appellate court's reliance on this precedent was misplaced.

Court's Reasoning and Analysis

The court limited the scope of inquiry because the legality of the adoption itself was not challenged before it—the counsel for the appellants conceded that the adoption was valid despite the adoptee being over fifteen at the time. The central question for the court was the legal effect of the gift-deed (Ex. 87) in the context of the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.

The court noted that the lower appellate court had given retrospective effect to the adoption, effectively treating the plaintiff as entitled to succeed from the death of Sadu (June 20, 1919). The lower appellate court had relied upon Natvarlal Punjabhai (AIR 1954 SC 61). The present court observed that Natvarlal concerned adoption law before the 1956 Act and therefore was not applicable to adoptions effected after the 1956 Act came into force.

The court then set out and relied upon Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (quoted in full in the opinion). From Section 12 the court derived two central propositions that governed the present case:

  • Adoption under the 1956 Act takes effect only from the date of the adoption (it is not automatically retrospective to the adoptive parent's death); and
  • Clause (c) of Section 12 provides that an adopted child shall not divest any person of any estate which vested in that person before the adoption.

Applying those principles, the court concluded that the lower appellate court was wrong to give retrospective effect to the 1973 adoption so as to vest rights in the plaintiff from 1919. Given that the plaintiff was adopted in 1973 and that Bhagubai was alive when the suit was filed (September 19, 1973) the plaintiff could only claim the property as the son of the adoptive mother after her death; but Bhagubai was not a party to the suit. Consequently the suit was premature/maintainability was defective.

The court also addressed the gift-deed issue. It observed that the plaintiff had not challenged Ex. 87 and that no evidence had been led on legal necessity (the factual basis on which the defendants relied to justify the gift). The court held that the validity of the gift (as a matter of legal necessity) could not fairly be decided in a second appeal without giving the plaintiff an opportunity to amend and lead evidence. However, the court found it unnecessary to remand for that exercise because it was allowing the appeal on other grounds.

The court further considered the plaintiff's alternative contention that the gift was invalid. Even assuming, for argument's sake, that Ex. 87 was invalid, the court reasoned that such invalidity would mean no property passed to the defendants and Bhagubai would have remained owner. After the 1956 Act came into force (dates recited in the opinion), Bhagubai's limited interest would have become full/absolute (reference made to Section 14 of the Hindu Succession Act, 1956 as relevant in the opinion). Bhagubai, as owner, would have had to bring suit within twelve years (the court states that Bhagubai ought to have sued on or before June 17, 1968). Because the present suit was filed on September 19, 1973 it would have been time-barred if Bhagubai had tried to sue. Moreover, the defendants had been cultivating the land as owners since May 17, 1948 and would have perfected title by adverse possession by June 17, 1968.

Consequently the court concluded that even on the hypothesis that Ex. 87 was invalid, limitation and adverse possession would bar recovery by Bhagubai and the plaintiff's claim (which accrued only after adoption in 1973) could not divest rights already vested in the defendants.

For these reasons (the non-retrospective effect of the adoption under Section 12; the prematurity of the plaintiff's suit while Bhagubai was alive and not a party; and the bar of limitation/adverse possession even assuming invalidity of the gift), the court found the lower appellate court's decree unsustainable.

Holding and Implications

Holding: The court allowed the second appeal. The judgment and decree passed by the Joint Judge, Pune, in Civil Appeal No. 815 of 1983 (which had reversed the trial court and decreed possession in favour of the plaintiff) is set aside and the plaintiff's suit is dismissed.

DISPOSITION: Appeal allowed; the lower appellate court's judgment and decree set aside; the plaintiff's suit dismissed with no order as to costs.

Consequences and implications:

  • Direct effect: The plaintiff does not obtain possession; the defendants retain the benefit of the trial court's dismissal. The specific decree granted by the lower appellate court is vacated.
  • Procedural consequence: The plaintiff's failure to challenge the registered gift-deed (Ex. 87) and the prematurity of suing while Bhagubai was alive were material defects; the court observed that validity of the gift could not be resolved in second appeal without evidence, but this became moot because the appeal succeeded on statutory and limitation grounds.
  • Broader precedent: The court expressly held that the ratio in Natvarlal Punjabhai (AIR 1954 SC 61) — a pre-1956 adoption-law decision — was not applicable to an adoption effected after the commencement of the Hindu Adoptions and Maintenance Act, 1956; the opinion applies Section 12 of the 1956 Act to reject retrospective effect of an adoption in this factual situation. The opinion did not purport to lay down broader principles beyond applying the 1956 Act to the facts before it.

No further orders as to costs were made; certified copy to be furnished forthwith. (Final line of the opinion: "Appeal allowed.")

Appeal allowed.
Show full summary ...

    Kisan Baburao Memane And Another v. Suresh Sadu Memane .

    Mrs. Gokhale prayed for amendment of the second appeal. The grounds taken by the proposed amendment are purely legal grounds based on facts which are already on record. Prayer made by Mrs. Gokhale is granted.

    2. By this second appeal the appellants-original defendants have challenged the judgment and decree passed by the Joint Judge, Pune, on September 4, 1985 in Civil Appeal No. 815 of 1983 preferred against the judgment and decree passed by the 4th Joint Civil Judge, Senior Division, Pune, in Special Civil Suit No. 398 of 1973. By the aforesaid judgment and decree the lower appellate Court reversed the finding of the trial Court and directed the appellants to handover possession of the suit properties to the original plaintiff. A few facts which are germane for the disposal of this second appeal are as under:

    The plaintiff in this case had filed a suit against the defendants-appellants herein for possession of the suit properties. It is the case of the plaintiff that the suit property originally belonged to one Sadu Memane who died on June 20, 1919 leaving his wife Bhagubai. The said wife Bhagubai adopted the plaintiff on June 21, 1973. The plaintiff, therefore, filed a suit against the defendants being Special Civil Suit No. 398 of 1973 before the Joint Civil Judge, Senior D sion, Pune, for possession of the suit properties on the ground that he being the adoptive son of Sadu Memane is entitled to get possession of the suit lands from the defendants. The aforesaid suit was resisted by the defendants who are brothers. Firstly, it was contended on behalf of the defendants that the adoption as alleged by the plaintiff dated June 21, 1973 is invalid and illegal on various grounds. Secondly, it was contended that after the death of Sadu Memane, Bhagubai was residing with the defendants. The defendants used to cultivate the suit lands and also look after Bhagubai. Bhagubai thereafter gifted the suit lands by a registered gift-deed to the defendants, who are also her nephews, out of love and affection on May 17, 1948. The said gift-deed is at Ex. 87. From May 17, 1948, it is the case of the defendants that they are cultivating the suit lands as owners till today. It was also contended on behalf of the defendants that even presuming that the adoption is valid the suit properties once divested by a gift-deed cannot be recovered by the plaintiff as adoptive son. The trial Court held that the adoption as alleged by the plaintiff was not proved and, therefore, by his judgment dated April 30, 1982 dismissed the said Special Civil Suit No. 398 of 1973. Against the aforesaid judgment and decree passed by the trial Court the plaintiff preferred Civil Appeal No. 815 of 1983 before the Joint Judge, Pune, and the lower appellate Court passed the decree of possession in favour of the plaintiff. The lower appellate Court held that the plaintiff proved that he was adopted by Bhagubai on June 21, 1973. Further, the lower appellate Court relying on several authorities held that the said adoption is valid even if the age of the plaintiff was more than fifteen years at the time of adoption. The lower appellate Court further held that the adoption of the plaintiff on June 21, 1973 relates back to the death of Sadu Memane i.e on June 20, 1919 and, therefore, the plaintiff is entitled to recover possession of the suit lands. The aforesaid judgment and decree is the subject-matter of challenge before me.

    3. At the outset I may mention that Mrs. Gokhale, the learned counsel appearing on behalf of the appellants-original defendants conceded the legal position to the effect that though at the time of adoption the plaintiff was more than fifteen years of age the said adoption is valid in view of the ratio as laid down in various judgments of this Court. However, Mrs. Gokhale strenuously challenged the decree on various other grounds. Firstly it was contended on behalf of the appellants that the suit filed by the plaintiff is liable to be dismissed as the same was premature on the date of the filing of the suit. Secondly, it was contended that the defendants have taken a specific stand that the suit property was gifted by Bhagubai on May 17, 1948 vide registered gift deed, Ex. 87, still, the plaintiff sought no declaration to the effect that the said gift-deed is not binding upon him and, therefore, on this ground also the said suit is liable to be dismissed. Thirdly, it was contended on behalf of the appellants that the gift dated May 17, 1948 is by Bhagubai in favour of the defendants was for legal necessity and, therefore, once the property is validly divested from Bhagubai, the adoptive son-plaintiff cannot claim the suit property. Lastly, it was contended on behalf of the appellants that in view of S. 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act of 1956”) the plaintiff became adoptive son only from the date of the adoption i.e from June 21, 1973 and in view of S. 12(c) of the Act of 1956 the adoptive son-plaintiff shall not divest any person in the suit property which was vested in the defendants before the adoption.

    4. Since, the legality of adoption is not the subject-matter of challenge before me, I have to consider only the effect of the gift-deed dated May 17, 1948 in the context of Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. The lower appellate Court has held that after the adoption on June 21, 1973 the plaintiff claims the property of his adoptive father Sadu Memane from the time of his death on June 20, 1919. While coming to the aforesaid conclusion the lower appellate Court relied upon the ratio as laid down by the Supreme Court in the case of Natvarlal Punjabhai v. Dadubhai Manubhai, AIR 1954 SC 61. With respect, according to my opinion, the said decision is not applicable in the facts and circumstances of the present case. The case decided by the Supreme Court is with reference to the adoption law prior to Hindu Adoptions and Maintenance Act, 1956. However, Hindu Adoptions and Maintenance Act, 1956 came into force on December 21, 1956 and since the plaintiff was adopted by Bhagubai admittedly on June 21, 1973, the adoption of the plaintiff by Bhagubai will be governed by the Act of 1956. Section 12 of the Act of 1956 reads as under:

    “An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

    Provided that—

    (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

    (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

    (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”

    As per the provisions of the aforesaid S. 12, the adoption of the adoptive son to the father or mother gets effect only from the date of adoption and not retrospectively. Secondly, it is also pertinent to note that as per clause (c) of S. 12 if any estate or property is divested to any other person before the adoption then the adopted son is not entitled to get back the said property. This being the clear legal position under the Act of 1956 the lower appellate Court was wrong in giving retrospective effect to the adoption of the plaintiff, from June 20, 1919 when Sadu Memane the adoptive father expired and not from the date of adoption i.e from June 21, 1973. Once this legal position is accepted the argument of maintainability of the suit as advanced by Mrs. Gokhale, the learned counsel for the defendants, assumes-importance. Admittedly, the present suit was filed on September 19, 1973. During the pendency of the said suit Bhagubai died some time in 1975. That means, on the date on which the suit was filed Bhagubai was alive. The suit as filed by the plaintiff can only be decreed on the basis that the gift dated May 17, 1948 is not legal. If that is so, then, in that event, after the Act of 1956 came into force i.e on June 17, 1956 (December 21, 1956) onwards, the widow-Bhagubai became the absolute owner. After the adoption on June 21, 1973 the plaintiff, the adoptive son will not be entitled to get the suit property as the son of the adoptive father but as a son of adoptive mother only after her death. In the present suit the plaintiff has not made Bhagubai as one of the parties. Keeping this principle in view, the plaintiff claiming to be adopted son of Bhagubai could not have filed this suit for possession of the suit property as on the date of the filing of the suit i.e on September 19, 1973 Bhagubai the widow of Sadu Memane was alive and she died sometime in 1975. In view of this the suit filed by the plaintiff is liable to be dismissed as the same is filed prematurely. Apart from this, this suit is liable to be dismissed also on the ground that the plaintiff has not challenged the registered gift dated May 17, 1948 given by Bhagubai in favour of the defendants.

    5. Mrs. Gokhale, the learned counsel appearing on behalf of the appellants-defendants, contended that the gift-deed, Ex. 87, dated May 17, 1948 was for legal necessity and, therefore, the gift, even under the Hindu Law, on the date of the gift, is valid. She contended that there is a specific averment made in the registered deed by Bhagubai to the effect that after the death of her husband she was living with the defendants, her nephews. They used to look after her and also cultivate the land. She treated them as her own sons. The defendants maintained her and she had the confidence that they will maintain her till her death. In view of this, out of love and affection she gifted the suit land to the defendants by a registered gift-deed, Ex. 87. Mrs. Gokhale contended that without obtaining a declaration challenging the said gift-deed the plaintiff is not entitled to file the said suit.

    6. Mr. Dalvi, the learned counsel, appearing on behalf of the plaintiff, contended that the plaintiff filed the suit on the basis that he is adoptive son of Sadu and Bhagubai and, therefore, is entitled for the possession of the suit land. If it is the case of the defendants that they are in possession of the suit land on the basis of the gift the burden is upon them to prove that the gift was a valid gift for all legal necessities. Mr. Dalvi further contended that the case of the plaintiff is that he has become the successor of Sadu Memane immediately after his death and, therefore, the said gift, Ex. 87 dated May 17, 1948 cannot in any way come in his legal right to get the possession of the property.

    7. Heard the rival arguments. According to me, in this matter the plaintiff has not challenged the gift-deed Ex. 87, dated May 17, 1948. It is true that after defendants filed the written statement the fact that Bhagubai had given the land in gift might have been brought to the notice of the plaintiff. But, then in that event, the plaintiff could have amended the plaint and challenged the gift-deed. Since there was no specific issue before both the lower Courts about the validity of the gift no evidence was led as regards the legal necessity and, therefore, unless there is evidence on this issue as to whether the gift, Ex. 87, is valid gift because the same was executed due to legal necessity, this argument cannot be decided by me in second appeal unless in fairness I give opportunity to the plaintiff to amend his plaint to that effect and remand the matter to allow both the sides to lead evidence to fortify their contentions. But that exercise is unnecessary in view of the fact that I am allowing this appeal on other grounds.

    8. Mr. Dalvi, the learned counsel appearing on behalf of the plaintiff further contended that the gift, Ex. 87, on the basis of which the defendants are claiming the property is invalid or void document. Without going into the legalities of the aforesaid argument and presuming for a while that the said documents are invalid, still, according to my opinion, the same will not come to the help of the plaintiff in maintaining the lower appellate Court's decree. The reason being, presuming for a while for the sake of argument, that the gift dated May 17, 1948, Ex. 87, is invalid and not to be taken into consideration, then, in that event, no property whatsoever can be passed to the defendants by the said document and in spite of the said deed Bhagubai continued to be the owner of the suit property. If that is so, after the Act of 1956 came into force on June 17, 1956 (December 21, 1956) Bhagubai's limited interest in the suit land became full interest and she became absolute owner, more particularly, in view of S. 14 of the Act of 1956. In that event Bhagubai ought to have filed the suit against the defendants within twelve years i.e on or before June 17, 1968. Admittedly, in this case the suit was filed on September 19, 1973 and, therefore, even if Bhagubai had filed this suit the same would have been time-barred. Apart from that even if we presume for a while that the gift-deed is invalid then the defendants who were admittedly cultivating the lands from May 17, 1948 as owners have perfected their title by adverse possession in any case on June 17, 1968. In view of this, alleged right accrued to the adopted son on June 21, 1973 as per S. 12 of the Act of 1956 cannot divest the property vested in defendants. In view of this, even presuming for a while that the document is invalid and illegal, the plaintiff's suit cannot be decreed. In view of this the lower appellate Court's judgment and decree is liable to be set aside.

    Hence, this appeal is allowed. The judgment and decree passed by the Joint Judge, Pune, in Appeal No. 815 of 1983 is set aside and the suit filed by the plaintiff is dismissed with no order as to costs.

    Certified copy be furnished forthwith.

    Appeal allowed.
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    Comments

    Kisan Baburao Memane And Another v. Suresh Sadu Memane .
    (Apr 6, 1995)