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Banabai and ors. Vs. Wasudeo - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 114 of 1967
Judge
Reported inAIR1979Bom181; (1980)82BOMLR388; 1979MhLJ133
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 3; Hindu Adoptions and Maintenance Act, 1956 - Sections 4, 5(1), 11, 12, 13 and 17; Hindu Succession Act, 1956 - Sections 8 and 14; Code of Criminal Procedure (CrPC) , 1973 - Sections 145; Hindu Law; Shastric Hindu Law
AppellantBanabai and ors.
RespondentWasudeo
Appellant AdvocateJ.N. Chandurkar, Adv. for L. Rs.
Respondent AdvocateS.N. Kherdekar, Adv.
DispositionAppeal allowed
Excerpt:
hindu succession act (xxx of 1956), section 8 - hindu adoptions and maintenance act (lxxviii of 1956), sections 12, 13, 17 and 4 -- whether there can be divesting or loss of ownership of property vested in adopting mother by reason of the adoption itself. b died in september 1958 leaving a widow, who adopted w, the plaintiff in february 1959. on july 8, 1960 the widow sold a piece of land left by b to one r. in january 1961 w sued the widow, r and others to challenge the sale. w pleaded an ante-adoption agreement under which he was to get all rights of a natural born son to b and the widow.;that by reason of section 8 of the hindu succession act 1956, the widow became the absolute owner of the property left by her deceased husband and the properties had vested in her.;by reason of section.....1. one bhoraji died in sept. 1958 leaving behind him a widow by name banabai and several agricultural properties and a house consisting of lands situated at villages lasur, dhanori and nimbharao in daryapur and akot tahsils. on the 20th of february 1959 banabai adopted wasudeo who is the plaintiff in the present suit. on the same day a deed of adoption was executed by banabai in favour of wasudeo.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 i960 on 28th nov. 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.....
Judgment:

1. One Bhoraji died in Sept. 1958 leaving behind him a widow by name Banabai and several agricultural properties and a house consisting of lands situated at villages Lasur, Dhanori and Nimbharao in Daryapur and Akot tahsils. On the 20th of February 1959 Banabai adopted Wasudeo who is the plaintiff in the present suit. On the same day a deed of adoption was executed by Banabai in favour of Wasudeo.

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 I960 on 28th Nov. 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 Section 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 Jan. 1963, wherein the plaintiff Wasudeo claimed a number of reliefs and, in particular, possession of land Section 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. It 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 Section No. 13/1 on the 8th of July 1960 in favor-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 is continuing in possession. That in Criminal Case No. V4 of 1960 which was pending before the Sub-Divisional Magistrate, Akot under Section 145, Cr.P.C. 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, Wasu-deo's suit was for possession of all the properties which are set out in 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 defendant 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 Bhoraji and, therefore, the plaintiff has no right to claim the property. As regards the land Section No. 13/1, she stated that she was entitled to sell this property and sold it for a consideration of Rs. 1000/-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 ol the property and was entitled to its possession and ownership. That Banabai, according to them, had left to herself only the right to be maintained and residence. Consequently, it was held that the sale deed in favour of Ragho of Section No. 13/1 was not binding upon the plaintiff and the plaintiff was, therefore, entitled to possession of Section No. 13/1. It was found in the Courts below that one of the lands. No. 72/2 of village Lasur, of which plaintiff also claimed possession, did not belong to the family and, therefore, the plaintiff was not entitled to possession of Section No. 72/2. It is against this judgment and decree that the present second appeal is filed.

7. After filing of this second appeal by Banabai and the other defendants, Banabai died on 15th of Aug. 1968. An application to substitute the heirs of Banabai in her place and to continue the appeal is filed by the other defendants-appellants. Wasudeo being the only heir of Banabai, the adopted son, the remaining defendants-appellants contended that the appeal did not abate since Wasudeo was on record in his individual capacity as the plaintiff-respondent and was, therefore, entitled to represent the estate, while they as purchasers were entitled to prosecute the appeal. Mr. Kherdekar appearing for the respondent contended that the entire appeal has abated and therefore, the appeal must be dismissed and there cannot be any substitution. I do not think that in the circumstances the appeal has abated. Since Wasudeo is already on record as an heir of Banabai, the appeal does not abate, though in his separate and individual capacity. Similarly the right to prosecute the appeal vesting in original defendants 2 to 5 i.e. Ragho and his sons continues notwithstanding the death of Banabai. They would, therefore, be entitled to prosecute this appeal. Banabai's name is, therefore, directed to be deleted from the array of the appellants. I also direct that the respondent be described as also an heir in the title of the appeal.

8. Banabai's death on the 15th Aug. 1968 rendered a number of questions in this appeal which would have been otherwise material and necessary to decide, of little consequence. As I pointed out, the lower appellate Court granted a decree to the plaintiff of joint possession of all the properties excluding Section No. 72/2 but including Section No. 13/1, which is the principal bone of contention now remaining in this appeal. That joint possession obviously would be only with Banabai and not the other defendants as that would be inconsistent with finding that Banabai had parted with all the rights in the property hy reason of the ante-adoption agreement and constituted Wasudeo the full owner of the property. However, in the view which I am taking of the controversy that aspect of the matter becomes of little consequence. Since I am inclined to hold that the sale by Banabai to Raghoba of Section No. 13/1 is good and cannot be assailed, the defendants-appellants, therefore, are entitled to the property and there can be no decree for joint or any kind of possession in favour of the plaintiff.

9. Mr. Chandurkar who appeared for the appellants original defendants, contended that since Bhoraji died in Sept. 1958, i.e. after the coming into force of the Hindu Succession Act leaving behind him only his widow Banabai, by reason of Section 8 of that Act, Banabai became the full and absolute owner in Sept. 1958 of all the properties left by Bhoraji behind him, namely, the properties in the suit. It was his further submission that Banabai, therefore was entitled to all this property as owner, and that right of Banabai to the property and the ownership was at no time lost. He contended that by reason of Section 12 of the Hindu Adoptions and Maintenance Act, the result of the adoption of Wasudeo on 28th Feb. 1959 could only be in accordance with that section. Mr. Chandurkar did not dispute that the adoption was legal and valid, and he could obviously not raise any contention in regard to the adoption in view of the earlier decision in the Civil Suit, namely. Civil Suit No. 118-A/59, filed by Banabai against Wasudeo. The defendants-appellants being persons claiming through Banabai would of course tie not entitled to raise any contention in regard to the legality and validity of the adoption. The provisions of Section 12, Mr. Chandurkar pointed out, are a departure from the provisions of the Hindu Text or Shastric Law or interpretation upon the consequence of adoption under the former Hindu Law. By reason of Section 12 the adoption now takes effect from the date of adoption. With regard to the property, he pointed out that the adoption by itself has not the result of divesting any property of the person who adopts which is already vested in him before the adoption. It is no doubt true, It was urged,that there can be an ante-adoption agreement and that ante-adoption agreement as laid down in Section 13 may control the rights of the adopting father or mother over the property belonging to them, but that agreement must according to Mr. Chandurkar relate to controlling the power of disposal over the property which only would be valid under Section 13. It was Mr. Chandurkar's contention that if the property were, on the other hand, to be given to an adopted son, reading Sections 12 and 13 together it would only be by way of conveyance that the adopted son can be made the owner of the property on his adoption. The result of a transfer of ownership from the adopting person to the adopted child, does not take effect by virtue of the adoption itself. Unlike the former Hindu Law that result and consequence will have to be achieved strictly, according to him, in terms of Sections 12 and 13 of the Hindu Adoptions and Maintenance Act.

10. He then referred to Section 17 of the Act which prohibits receiving or agreeing to receive any payment or other reward in consideration of the adoption of any person and also prohibits any person from giving or agreeing to make or give to any other person such payment or reward. It was, therefore, his submission that any agreement to receive, or any agreement to give, by way of reward or consideration for the adoption Ss against public policy and, therefore, void. Mr. Chandurkar's submission therefore was, assuming that there was any ante-adoption agreement in favour of Wasudeo, that agreement would be void and hit by the provisions of Section 17 of the said Act. He then referred to the provisions of Section 4, and pointed out that the provisions of the Hindu Adoptions and Maintenance Act have an overriding effect over the provisions of the Shastric Hindu Law or any text or interpretation to the contrary.

11. Mr. Chandurkar submitted that the Courts below were in error in holding as a fact that there was any ante-adoption agreement which was proved. He further submitted that if the adoption deed Exhibit 38 is properly construed, it would be Incorrect to say and construe that deed as any ante-adoption agreement. He particularly referred to the terms and recitals in the deed upon which reliance was placed in the courts below as spelling out any ante-adoption agreement. According to him, those recitals merely state a legal consequence and a result of the adoption. They do not have the effect, nor do they convey any agreement having been reached between the parties prior to the adoption, and having thereby the effect of controlling or divesting the rights of the widow in the property. He urged that the construction placed by the courts below on the adoption deed is not warranted by the terms of the 'deed.

12. Mr. Kherdekar who appeared for the respondent made a two-fold submission. In the first instance, Mr. Kherdekar's contention was that there was an ante-adoption agreement which was oral and was amply proved by the evidence adduced on behalf of the plaintiff. Further that ante-adoption agreement according to Mr. Kherdekar, had the effect of the widow Banabai divesting herself of all proprietary rights in the property, and retaining to herself only the right to be maintained out of the income of the property and the right of residence. That the fact and circumstance of an ante-adoption agreement having been entered into and the terms of that agreement, according to him were evidenced by Exh. 38, the adoption deed. He also sought to urge though in a half-hearted manner that Exh. 38 clearly records that the widow has relinquished all her rights in the property and that the adopted son has acquired all the rights of a natural born son with regard to the property, and that the only right which the widow retained to herself was the right to be maintained and to be looked after and protected by the plaintiff as though or in the manner of a natural son. Mr. Kherdekar conceded, however, that Exh. 38 did not amount to a conveyance of the property by Banabai in favour of Wasudeo.

13. Alternatively, It was Mr. Kherdekar's submission that the consequence of the adoption is that the adopted boy is transferred from the genetic family to the adoptive family, and thereby acquires all the rights as though of a natural born son in the adopting family. From the time such a person is adopted with regard to the adopted family, he acquires all the rights and statue as if he was born in the family. If, therefore, a natural born son had certain rights or would acquire certain rights with regard to the property in his adoptive family, then those rights according to Mr. Kherdekar flow to the adopted son from the factum of adoption, and the law relating to adoption may be also as under the Hindu Adoptions and Maintenance Act. To this extent, it was Mr. Kherdekar's submission that there is no inconsistency or contradiction between the former Hindu Law and the new provisions of the Hindu Adoptions and Maintenance Act. These rights which an adopted son acquires as if he was born naturally in the adopting family, according to him, have to be worked out. If they are so worked out, then it is his contention, that in the case of ancestral property, it is the son who would get like a natural born son, right of partition and possession of the property which was joint family property of the family. If in such a family, apart from the adopted son, there is a widow, then the widow and the adopted son would become co-owners or members of the joint family, and if there are other persons apart from the widow, the son according to Mr. Kherdekar would become a coparcener along with the other coparceners.

14. In support of these contentions Mr. Kherdekar relied upon two decisions of the Supreme Court and a decision reported in Ankush v. Janabai : AIR1966Bom174 . The head-note upon which emphasis and reliance was placed by Mr. Kherdekar in that case reads (at p. 178):

'The result of adoption by either spouse is that the adoptive child becomes child of both the spouses.' The observations in para 10 of the said judgment were also relied upon to urge that the son in effect acquires the right of a natural born son in the adopting family. These observations:

'The customary Hindu Law in that connection according to the learned Judge's reasoning has been entirely abrogated. Under the customary Hindu Law when a widow adopted a son, she adopted the son to her deceased husband who became the adoptive father of the adopted child. This was, according to the learned Judge, not the position under the provisions of the Act. It has appeared to us that the learned Judge has laid wrong emphasis on the phrase 'by or to' as contained in Sub-section (1) of Section 5. In our opinion, the true effect of the provisions In Sub-section (vi) of Section 11 and Section 12 of the Act is that, when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family.'

Mr. Kherdekar, therefore, relying upon this decision contended that on Wasudeo's adoption, he became a son of Bhoraji as also of Banabai. That his relations in his original genetic family became completely severed and new relations were created by reason of his adoption in the adoptive family. Ey an analogy Mr. Kherdekar submitted that Wasudeo, therefore, would acquire all the rights which Bhoraji's natural son would have acquired, including, according to him, the right to manage the property and be in its possession as also the right to partition and to be the owner of the said property.

15. The two decisions of the Supreme Court which were relied upon are Sawan Ram v. Mst. Kalawanti : [1967]3SCR687 and Smt. Sitabai v. Ramchandra : [1970]2SCR1 . The decision in Sawan Ram's case has an added significance in that it overrules the decisions reported in (1964) 1 Andh WR 156, to which a reference is made by the lower appellate Court as taking a view contrary to the view which he had taken. In the Andhra Pradesh decision it was held that the adoption cannot have the consequence of divesting any person of any property and that the adopted child does not divest the person of the property which had vested in him. It was not suggested by Mr. Kherdekar that the Supreme Court has, while overruling the Andhra decision, held that the adoption diverts any person In whom any property is vested by reason of the adoption. Such a proposition could not be urged as It would be directly in conflict with the provisions of Section 12. However, as to the effect of adoption and the status of the adopted son in the adoptive family, Mr. Kherdekar pointed out that the adoption results in the adopted son being the son of both the spouses. It was held in that case also that an independent right of adoption having been given to a Hindu female under the Act, where the female adopts a son to herself, the adoption is not to the husband of the female, but only to herself. That contention Is negatived and it was held contrary to the view taken in the Andhra Pradesh decision that on the adoption by widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased. Further he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family. To the same effect is the decision in Sitabai v. Ramchandra : [1970]2SCR1 , where also it was held that (at p. 347):--

'The legal effect of adoption is to transfer the child from the family of its birth to the family of the adoption. The scheme of Sections 11 and 12 is that In the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. The child adopted is tied with the relationship of sonship with the deceased husband of the widow.'

16. It is by relying upon these observations and statement of law that Mr. Kherdekar urged that Wasudeo being adopted became a member of the family and acquired the status and rights like a natural born son in the family of Bhoraji. It was, therefore, his submission that on the 28th Feb. 1959 he was entitled to these rights vis-a-vis the property left behind by Bhoraji as a natural son of Bhoraji would have. Those rights of a natural born son of Bhoraji, according to him, would extend not only to the management of the property but to the entire ownership thereof. I do not think that it is possible to accept these contentions, though it cannot be disputed that upon adoption the adopted child becomes a member of the family of the adopting family and acquires the same status as that of a natural born son.

17. As to what his rights are, however, we have to turn to the provisions of the Hindu Adoptions and Maintenance Act, and in particular, Section 12 thereof. The Marginal Note of Section 12 says that that section deals with the 'effects of adoption' and the effects of the adoption are laid down in Section 12 and the three provisos to that section. The first departure from the former law is that by Section 12, the adoption takes effect 'from the date of adoption and from such date 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.'

18. Thus it would be seen that the adoption takes effect only from the date of adoption and not prior to the adoption. Under the former law the adoption had the effect of relating the adoption back to the date of death of the rather. The adopted son was deemed to be in existence at the time when the father died. That fiction of relation back as a result of the adoption has been done away with by Section 12. Further the provisos also limit the rights of the adopted son in the new family and proviso (c) which is material and which deals with the rights in the property as well the right of management to which Mr. Kherdekar wants me to extend the principle as enunciated by the Supreme Court is that 'the adopted child shall not divest any person of any estate which vested in him or her before the adoption.' In other words, though the adopted son from the date of adoption becomes a member of the adoptive family and acquires all the rights and status which that person would acquire in the adopting family with regard to the property, his right was controlled and is subject to his incapacity to divest any person of an estate which has already vested in him. Though, therefore, an adopted son may have rights in future in the property which the family may acquire after his adoption, with regard to the property which has vested in any particular person before his adoption, the adoption does not vest in him any rights with regard to that property. The plain terms of Section 12 and in particular proviso (c) clearly make it quite clear that the adopted son, short of acquiring the right of management and right to the property of his adoptive parents acquires all the other rights and status of a natural born son in the family.

19. Now this limited right and incapacity to divest any person of the property which has already vested could be, by an agreement to the contrary controlled by the adoptive father or the mother. Section 13 lays down that an adoption does not deprive the adoptive mother or the father of the power to dispose of his or her property by transfer inter vivos or by will. Section 13 emphasises the provisions of Section 12, proviso (c). It, however, also makes it possible and permissible for the adoptive father or the mother to enter into an agreement by which the power to dispose of, or transfer the property either by transfer inter vivos or by will can be subjected to the terms of the agreement. To my mind, Section 13 speaks only of an agreement by which the power of transfer can be exercised in a particular manner. It need not, and does not say that there can be a transfer by the father or the adoptive mother. If the property has already vested in them, then Section 13 makes it quite clear that that right or power is not touched at all by the adoption, and can only be subjected to such terms as an agreement may impose. Where, therefore, it is contended that the property which has already vested is transferred, it can only be by a conveyance. It is then only that the person in whom the property has already vested can lose ownership over that property or to use the words of Section 12 'divest himself of that property.' Section 13 merely enables an agreement to be entered into between the parties by which the said right can be exercised in a particular manner. If may also be possible, though that is hypothetical, that such a person may give up his right to transfer the property altogether. But that is an agreement which would curtail the power of transfer which vests in that person, and must be a valid limitation placed upon that power, not as a legal result of the adoption or the effect of adoption, but as a result of the agreement, whether before or after the adoption between the parties to the adoption.

20. It seems to me that It is not possible to accept the argument advanced by Mr. Kherdekar inasmuch as on the death of Bhoraji in Sept. 1958 by reason of Section 8 of the Hindu Succession Act, the widow Banabai became the absolute owner of the property left by Bhoraji. Consequently before 20th of Feb. 1959 on which date Wasudeo was adopted, Banabai had become the full owner of all the properties in suit and the properties therefore had vested in her. By reason of Section 12 proviso (c) there can be no divesting or the loss of ownership of property which vested in Banabai by reason of the adoption itself. If that position is clear, and I think it is unassailable, then it follows that the property had already vested in Banabai and could only be divested by only such means known to law by which ownership over any property is lost by that person. It is quite clear that Wasudeo's adoption by itself would not have the consequence of Banabai losing her ownership over the property.

21. We are not concerned in the present case with any transfer prior to the adoption by the adopting parent of the property to the adopted child. What is urged is that there is an ante-adoption agreement by which the ownership in the property of Banabai was relinquished by her in favour of her adopted son. To my mind this would not be an agreement which is contemplated in Section 13, which has the effect of depriving the adoptive father or the mother of the power to transfer. The power to transfer can be lost in accordance with Section 13 or otherwise either by transfer itself when the property is lost, or so controlling the power of the transfer by the agreement, as would permit its exercise only in accordance with that agreement.

22. Now if we turn to the adoption deed and the particular recitals upon which the reliance was placed to spell an ante-adoption agreement, it is difficult to see how these recitals spell an ante-adoption agreement. On the contrary, I am inclined to think that they merely recited the position which upon adoption the adopted son acquired with reference to the adoptive family. These words are : --

^^vkSjl iq=kl ts gDd vlrkr rs rqtykizkIr >kysyk vkgs- & rq ek>s toGp jkgwr iq=/kekZizek.ks okxqu ukopkyokos o eykfg Egkrkjs o;kr lkaHkkGkos- ek>s loZ LFkkoj taxe bLVsVhoj rq>hvkSjliq=kizek.ks ekydh >kysyh vkgs- ------**

Now the first sentence of the aforesaid document does not speak of any agreement either prior to adoption or post adoption. It merely recites the legal position as laid down either under the Hindu Adoptions and Maintenance Act or by the Hindu Law, namely, that from the date of the adoption as a result of the adoption the adopted son has acquired the status and rights of a natural born son. The following sentence also merely expresses a pious desire and hope of the widow. It does not say that it is agreed that the widow shall have the only right in the property of maintenance and shall not hereafter sell the property or transfer it by way of either of a sale deed or in any other manner or will it away.

23. Reliance is, however, placed upon the last sentence, namely, 'that from that date the adopted son has acquired the same ownership rights like a natural born son upon the moveable and im-moveable property of the widow.' I have already pointed out that it is not urged that this is a conveyance. If the property had vested in Banabai, her right to transfer that property as emphasised in Section 13 cannot be taken away except in accordance with an agreement. The clear meaning of this sentence is to confer upon the adopted son the ownership over the property like a natural born son. If we were to visualise the situation as it was on the 28th Feb. 1959, the natural born son, supposing one were to succeed to Bhoraji, would have acquired only half share in the property left by Bhoraji, depending on whether the property was ancestral or self-acquired. If it was the ancestral property of Bhoraji, then for the purposes of Section 8 of the Hindu Succession Act, a notional partition would be deemed to have been effected between Bhoraji and his sons and widow just prior to his death and the share going by succession under Section 8 worked out. The natural born son in that case if the property was ancestral would have had a share notwithstanding Bhoraji and Banabai. We do not, however, have any material here to determine as to whether the property was ancestral of Bhoraji or self-acquired. That question, however, is irrelevant inasmuch as Wasudeo's rights in the property would spring into existence if at all only on the 29th Feb. 1959. Shorn of the fiction of relation back, he would acquire those rights which he would have acquired as from the 28th Feb. 1959 (sic) in that property. If the property, however, is already taken away by it vesting in any other person ashi this case, the adoptive mother,then the adoption would notconfer any rights upon him. However, as has happened in this caseif Banabai were to die intestate, thenon the death of Banabai, like a naturalborn son the adopted son would be entitled to those rights, and would be entitled to succeed to the property ofBanabai, as he has done in the presentcase. To say, therefore, that the adopted son acquired from that date all therights which a natural born son wouldacquire in the moveable and immove-able property, is not inconsistent withBanabai not divesting herself of theproperty which vested in her. It wouldmerely mean and is capable of meaning,that hereafter as a natural born son hewould acquire all those rights which hewould have acquired hereafter.

24. The distinction must be clearly understood and made between the passing of property, its vesting, loss of ownership or relinquishment thereof, and acquisition of rights in the property in praesenti or as a result directly thereof and which may flow by reason of the new relationship. The first kind of rights can only be created by a transfer which has to be effected as any other transfer by a document in writing and registered. The second class of rights can however be created and are created by operation of law itself. The mere statement appearing in the adoption deed to that effect, therefore, is nothing but a statement of what the legal position would be and is. It has not the effect or consequence of a transfer of rights in the property, which as pointed out above can only be effected by a registered instrument duly executed in that behalf. By no stretch of imagination can this document Exhibit-38 be construed as a conveyance.

25. The result of the aforesaid discussion is that the property which vested in Banabai was not divested and could not be divested as a result of the adoption. The terms of the adoption deed do not indicate any agreement having been reached prior to the adoption and merely state the legal consequence of the adoption having taken place of Wasudeo. Both the Courts have held the ante-adoption agreement proved on the basis of the support which they found to the agreement and reference thereto in the deed itself. I am unable to think that there is any indication in the adoption deed incorporating or suggesting that there was any such ante-adoption agreement entered into between the parties.

26. It may be pointed out in this connection that according to the plaintiff all that was agreed upon prior to the adoption has found place in the deed of adoption. If the deed of adoption does not, therefore, support the so-called agreement arrived at prior to the adoption, then it seems to me clear that there was no such ante-ad option agreement. If there was no ante-adoption agreement, then the case of the plaintiff that by reason of the ante-adoption agreement, Banabai had divested herself of all the proprietary rights in the property and had constituted him as an owner is difficult to sustain and accept. I have already pointed out that the deed of adoption itself cannot have the consequence and effect of transferring the ownership from Banabai of the properties in suit which had vested in her by reason of inheritance to Bhoraji in the adopted son. There is no ante-adoption agreement by which power to transfer and dispose of those properties by Banabai was in any way controlled or agreed upon. Consequently, it cannot be held that Banabai could not sell the property or transfer it during her lifetime in favour of any person. If that is so, the sale in favour of defendant Ragho will have to be upheld.

27. The result, therefore, is that the appeal will succeed. In view of Banabai subsequently dying intestate, it is not necessary to deal with the other reliefs which the plaintiff has claimed. Though therefore the plaintiff succeeds In getting the property, he fails so far as the defendants are concerned. In the circumstances, though the appeal is allowed, I direct that the parties will bear their own costs throughout.

28. Appeal allowed.


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