Bench:

P Patankar

Issue:

• I) Whether the plaintiff was adopted validly and legally on 18.10.1959?
• II) If validly, then can he have right in the joint family property of his natural birth?
• III) Was the suit within limitation?

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Facts:

• The Appellant Devgonda through his next friend by name Nemgonda Balgonda Patil filed the suit for partition and separate possession of his 1/3rd share in the joint family properties of his natural birth.

• It was alleged that Devgonda was married on 15.5.1946 and was having good health for one year after that. However, thereafter he became lunatic and was not mixing with public.

• His natural father wanted to cut him off the ties and to give all the property to his another son, Shamgonda (Def.1) and therefore plaintiff was given in adoption to Smt. W/o Tatya Patil (Def.2) in October 1959. The said adoption was said to be invalid and illegal for several reasons.

• Written Statement was filed on behalf of Respondent.1 (Def.1) who contended that adoption to legal.

• The Trial Court decreed the suit while the Appellate Court reversed the said decree. The Appellate Court held that plaintiff failed to prove the adoption to be illegal and invalid. It was also held that the suit was beyond limitation considering Article 57 of Limitation Act, as it has not been filed within the period of 3 years from the adoption. (Suit was filed in 1971)

• The matter was then taken to the Bombay High Court.

Appellant's Contentions:

• The adoption of Devgonda in October 1959 was invalid and illegal and in any case cannot be considered valid because it was effected with a view to deprive Devgonda from getting share in the family of his birth.

• Devgonda was lunatic and therefore he could not have been adopted. Finding of the court below that Devgonda was not lunatic was not correct.

• Smt. Tatya was not in a position to adopt and she died few days after the adoption

• Giving and taking ceremony had not taken place and therefore adoption was invalid.

• In view of Section 11(iv) of Hindu Adoption and Maintenance Act, it was necessary that the difference between the age of adoptive mother and adoptee should have been atleast 21 years. There was no such difference though.

• Under Section 12(b) of HAMA, inspite of adoption Devgonda did not loose his right in the family property of natural birth since the property was vested to him by birth.

• The Court below had erred in holding that the suit was beyond limitation. Article 113 of the Limitation Act was attracted since it was the suit purely for partition and separate possession and cause of action arose on the death of Devgonda’s father in July 1971.

• Devgonda was suffering from lunacy and therefore disabled.

Respondent's Contentions:

• The adoption was legal and valid and Devgonda cannot claim any right whatsoever in the family property of his natural birth after adoption.

• Partition had taken place and lands came to be divided between his father and himself.

• Because of adoption, Devgonda became the member of the family of Smt.Tatya and he cannot have any right in the coparcenary property of his family of birth. There was no property vested in him prior to adoption and therefore he cannot take the said property along with him when he was adopted and cannot claim any share in the said coparcenary or join family property.

• Devgonda was not lunatic on the date of adoption and the adoption had not taken place to deprive him of any right in the family property of his birth.

• The suit was beyond limitation.

Judgment:

The Court held that the appeal had filed and was thus dismissed. Considering the fact and circumstances of the case, there was no order as to costs.

Relevant Paragraphs:

In my view, assuming that Devgonda was lunatic on the date of adoption, it cannot be said that the adoption was invalid on that count. Section 6 of Hindu Adoption and Maintenance Act speaks about the conditions for valid adoption. The relevant is Section 6(3) , Section 6 does not say that a lunatic person cannot be adopted. There is no such incapacity. Therefore, it is not possible for me to accept the submission in this respect.

5. In my view further it cannot be said that Devgonda was lunatic on the date of adoption i.e. 18th October, 1959. The Court below has considered the evidence which was led on behalf of the plaintiff of one Dr. R. V. Shirvaikar who has stated that Devgonda was suffering from Catatonia Schizophrenia. He has further stated that Devgonda was treated for his schizophrenia during 1956 and in 1957. 

6. I find that there is nothing in the pleadings in this respect and there is no evidence that she was so seriously ill, mentally or physically, that she was unable to adopt. No evidence has been led in that respect. I therefore, reject this contention.

7.  The adoption deed was registered. Under S. 16 of the Hindu Adoptions and Maintenance Act the presumption is raised that adoption has been made in compliance with the provisions of the Act. it was for the plaintiff to prove that ceremony of giving and taking has not been taken place. However, no evidence has been led in that respect and the Court below has correctly come to the conclusion that the plaintiff has failed to prove this. In my view, it is a question of fact and correctly decided by the Courts below.

8. Mr. Ingale contended that in view of S. 11(iv) of the Hindi Adoptions and Maintenance Act, it was necessary that the difference between the age of the adoptive mother and adoptee i.e. Shrimati and Devgonda should have been at least 21 years. According to him, there was no such difference and therefore the said adoption was invalid. It is not possible for me to accept this for more than one reasons. First, 1 find that in the plaint, it has not been pleaded that the adoption was invalid on this ground. In para 4 of the plaint, grounds arc mentioned specifically why the adoption was invalid. I do not find this ground in the plaint. Plaintiff therefore cannot be permitted to raise at the time of arguments for the first time. Assuming that there was a pleading, in my view, it cannot be said that there was no difference of 21 years in age. Mr. ingale, invited my attention to two documents i.e. the Adoption Deed Exh. 114. It mentions the age of Shrimati as 55 years and that of Devgonda as 35 years. Further Fxh. 135 is sale deed, which was effected by Shrimati in favour of defendant No. 1 i.e. respondent No. 1. In the said sale deed Shrimati's age was mentioned as 55 years and the defendant No. 1's age was mentioned as 32 years. Defendant No. 1 is a younger brother of Devgonda. Therefore, if is contended that Devgonda's age can be taken as 35 and the age of Devgonda as mentioned in the adoption deed is correct and also of Shrimatibai as 55 years. Therefore, there was no difference of 21 years, Mr. Apte, the learned Advocate appearing on behalf of the defendant No. 1, on the other hand, invited my attention to the case papers which are produced on record at Exhs. 90 and 91 in respect of treatment which was given to Devgonda in 1956 and 1957. F.xh, 90 is a case paper prepared at Goheen Psychiatric Clinic, Miraj. The age of Devgonda is mentioned as 25. Exh. 91 are the medical papers of Devgonda from Wanless Hospital, Miraj which also show the age of Devgonda as 25. Dr. Shirvaikar, who was examined on behalf of the plaintiff, has stated in his evidence that he had examined Devgonda who was of 25 years of age at that time. Considering all these, it is not possible for me to hold that there was no difference of 21 years of age between Shrimati and Devgonda.

9. In the result, in my view, the adoption which had taken place was legal and valid.There was nothing suspicious or illegal in it.The reliance placed on Kishori Lal v. Mt. Chaltibai was misplaced. Further it cannot be said that adoption was suspicious because 2 days prior to it Shrimati sold certain property to defendant No. 1.

10.  In my view motive for adoption was not relevant for considering whether it was valid or not. The motive may be to deprive Devgonda to get property in the family of birth, but it is not relevant. The fact cannot be undone on that score and legal effects avoided. Further this point was not even raised in the Appellate Court.

17. Mr. Ingale contended that the Court below has erred in holding that the suit was beyond limitation. According to him Art. 113 of the Limitation Act is attracted since it was suit purely for partition and separate possession and cause of action arose on the death of Devgonda's father on 22nd July 1971. It is not possible to accept this submission. Though in the prayer clause in the plaint it was not specifically prayed for declaration that the adoption was illegal and invalid, in substance the entire claim was based on such declaration. It cannot be said that it was suit purely for partition and separate possession. In the plaint itself the cause of action pleaded is the date of adoption. Further, I find that it was conceded before the Courts below that Art, 57 of the Limitation Act was attracted and it was sought to be contended that the suit was within limitation considering the provisions of S. 6 of the Limitation Act. It was contended that Devgonda was suffering from lunacy and therefore disabled. However, the allegation of disability of Devgonda due to lunacy was not proved and therefore the Court below has correctly held that S. 6 was not attracted and the suit was beyond limitation as it was not filed within 3 years of adoption. Further it cannot be said that the cause of action for the suit for partition and separate possession arose on the date of death of father of Devgonda. It was no! necessary for the plaintiff to wait till then when according to him it was joint family property. Further even this was not pleaded as cause of action. Therefore Art. 113 was not at all attracted. In my view the plaintiff could not have succeeded in this suit unless he got the declaration that the adoption was illegal and invalid. Therefore, the present suit filed on 11-10-1971 was beyond limitation and the finding recorded by the Courts below is correct.