1. In this Second Appeal, the appellant was the defendant in the suit filed by the plaintiff-respondent for partition and possession of the plaintiff's alleged 1/2 share in the suit properties. The facts of the case are as follows:
2. The plaintiff alleged that one Shivram Patil was the owner of the suit property. He was a widower. The defendant was a widow. She came and stayed with him as his mistress. In due course he executed a maintenance deed, Ext. 37, inher favour giving to her 1/2 share in the suit lands and a house which were to be in her possession for her lifetime. Shivram had a natural brother Govinda, who was separated from Shivram long ago. The plaintiff was the son of said Govinda. Shivram had no issue and hence, on 21st May 1957, he took the plaintiff in adoption and executed a registered adoption-deed in his favour on 28th May 1957. According to the plaintiff, the possession of all the properties was handed over by Shivram to him; but in the Revenue Records the properties continued to remain in his possession. Shivram died on 28th March, 1970, but before his death sometime after the adoption, Shivram got a consent-deed executed from the plaintiff with a view to ensure the maintenance of the defendant. It was the plaintiff's case that after Shivram's death, the defendant kept possession of all the properties and refused to give the plaintiff his share. This, according to the plaintiff, was the genesis of the suit, which was filed by him against the defendant for partition and possession of the suit lands.
3. The defendant filed a written statement and denied that there was any valid adoption of the plaintiff by Shivram. She denied that the necessary ceremonies, which must inevitably attend upon a valid adoption, ever took place. She also contended that since the plaintiff was more than 15 years of age at the time of the adoption, the adoption was in fact invalid. She contended that there existed no custom in the community or in the family to which Shivram belonged, of a boy more than 15 years of age being taken in adoption. She contended that Shivram was not in a fit mental condition at the time of the alleged adoption. She further contended that immediately after that adoption. Shivram repudiated the same by giving a public notice. She contended that the plaintiff had usurped the possession of land, Gat No. 877, at Dhavali and hence Shivram had in fact filed Civil Suit No. 193/63 against the plaintiff and his alienee. In that suit the factum and validity of the adoption were challenged by Shivram. In that litigation he succeeded and he got a decree for possession of the land in question in his favour. As a matter of fact he even executed the decree and got back possession of the said land. In these circumstances the defendant contended that the present suit filed by the plaintiff was barred by theprinciples of res judicata. She denied the fact that she was the mistress of Shivram, She contended that she had remarried Shivram by Pat marriage. For all these reasons she strenuously contended that the plaintiff had no claim whatsoever in the suit property.
4. On these rival pleadings, issues were framed and parties went to trial. The learned trial Judge held that the plaintiff's adoption was valid. He also held that the plaintiff had proved the custom of taking adult boys being more than 15 years of age in adoption. The learned Judge also held that the adoption was also factually proved because the plaintiff had proved the ceremony of giving and taking. Hence he held that the adoption was a legal transaction. He negatived the plea regarding res judicata. He also negatived her contention that she was the legally wedded wife of Shivram. In these circumstances, he decreed the plaintiff's suit for partition and possession with costs.
5. In appeal the learned Extra Assistant Judge confirmed the finding of the trial Court that the defendant was not a legally wedded wife of Shivram. He also negatived her plea that there was any bar of res judicata to the present suit by virtue of the decree passed against the present plaintiff in Civil Suit No. 193/63 filed by Shivram against him. So far as the validity of the adoption was concerned, he held that the adoption was legal and valid, but for this purpose he mainly relied upon the deed of adoption. Relying upon the deed of adoption, he held that there was a presumption regarding the fact that the adoption had been made in compliance with the provisions of the Hindu Adoptions and Maintenance Act. In this view of his reasoning he confirmed the decree passed by the trial Court and dismissed the appeal filed by the defendant.
6. In this Second Appeal, two questions arise. First one is as to whether there is any legal and valid adoption of the plaintiff made by Shivram at all and the second question is as to whether in view of the admitted fact that the plaintiff was more than 15 years of age at the time of the adoption the custom of taking such boy in adoption is proved. In other words, the real question is whether by giving a few instances of adoption of adult boys of the age exceeding 15 years having been proved, could it be said thatthe custom of taking such adult boys in adoption was duly proved by the plaintiff as contemplated by Section 10(iv) of the said Act. To my mind the present appeal is capable of being decided fully in favour of the appellant on the first question, and hence it will not be necessary for me to express any opinion on the second question.
7. In order to establish his claim it is imperative for the plaintiff to prove that he was in fact adopted by Shivram and that the adoption was valid and legal. Both the factum of adoption and validity and legality of the adoption are based upon a factual position, viz. the giving and taking. Section 11(vi) of the said Act provides as follows:
'(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth, or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up, to the family of its adoption.'
8. In the present case there is no dispute that the plaintiffs natural father and mother were both alive at the time of the adoption. It is further not in dispute that giving could have been done only by the plaintiffs natural father Govinda. The difficulty about the judgment of the lower Court is that the learned Extra Assistant Judge has overlooked the fact that there is virtually no evidence on the part of the plaintiff to prove that his natural father Govinda had in fact given him in adoption to Shivram. It is an admitted fact that when the plaintiff was adopted he was already 21 years of age but for the purpose of proving valid adoption and for the purpose of giving and taking, the plaintiff has examined his mother Abai. Strangely enough she has given an entirely different story so far as the age of the plaintiff at the time of the adoption is concerned. In Para 4 of her deposition she has stated as follows:
'4. The deceased Shivram took the plaintiff from us when he was about 3/4 years old. Thus since 3/4 years this plaintiff was staying at Yedenipani in his childhood. The deceased Shivram came to Dhavali to us and then told us that he wants the plaintiff Ananda. We agreed to give him. The deceased Shivram called us to Yedenipani for adoption in themonth of Vaishakh, I, my husband, two nephews and two javas went to Yedenipani.'
In para. 5 she has deposed as follows:--
'5. The adoption ceremony took place in the house of deceased Shivram. There was one Bhatji. Shivram Patil told me and my husband that he wants my son, and we both agreed to give him. Shivram took the plaintiff on his side and he took the hands of the plaintiff in his hand he took talu, i.e. forehead, and then put sugar in his mouth. Bhatji performed 'home' ceremony and we all paid respect to it. After this photo was taken. Dattak yadi was also written by one Vithal Yeshwant Patil. I and my husband have put our thumb marks and Shivram signed on it. In all 100-200 persons gathered there for this function.'
It will be thus seen that she has not uttered any word about Govinda having given the plaintiff in adoption to Shivram. She has no doubt stated that Shivram had taken the plaintiff in adoption but the counter part of that ceremony, viz. the giving is something about which there exists no evidence.
9. It would be, therefore, impossible to rely upon the oral evidence or any evidence for the matter of that adduced by the plaintiff for proving the adoption. It appears that the learned Extra Assistant Judge was alive to this fact and that is probably the reason even the learned Judge has not tried to find any assistance from the evidence led on behalf of the plaintiff in support of the factum of the adoption. The learned Judge, however, relied upon the adoption deed, Ex, 92, and since it was a registered adoption he relied upon Section 16 of the Act to hold that the ceremony of giving and taking must be deemed to have been proved. What the learned Judge lost sight of, however, is that before he could invoke the presumption spelt out by that section, it is necessary that all the conditions imposed by the section were complied with in the case in question. The said Section 16 runs as follows:--
'16. Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until i* is disproved.'
It is therefore, necessary that the adoption deed which brings about such a presumption is one which has been executed not only by the person taking the boy in adoption but also by the person who is giving the boy in adoption. The point is that in the instant case the adoption-deed is executed by Shivram alone. Govinda, the natural father of the plaintiff, who alone could have participated in the ceremony of giving and taking and who alone could have done the work of giving the boy in adoption, has not executed the adoption-deed at all. In fact he is not a party to the adoption-deed in any manner.
10. Thus from the oral evidence of the plaintiffs in the matter, we find that she has given evidence regarding taking in adoption and the adoption-deed also speaks about taking in adoption only. Giving in adoption part is something about which there exists no evidence on record. It is clear that no presumption could arise as regards giving in adoption by the plaintiff's natural father. It, therefore, follows that the plaintiff has failed to prove that he was validly adopted son of deceased Shivram. If this is the position, it is difficult to see how the suit which is for partition and possession of the suit properties is maintainable. The suit is, therefore, liable to be dismissed on this limited ground itself, and this appeal must be allowed on that ground.
11. In these circumstances, it is not necessary for me to go into the question as to whether the plaintiff could be said to have sufficiently proved the existence of the custom in the family of Shivram to take adult boys of the age exceeding 15 years in adoption or not.
12. Mr. Jadhav, the learned Advocate for the appellant contended with some force that all that has been done by the plaintiff was to prove one instance before the Adoption and Maintenance Act came into force, where a boy of more than 15 years of age was taken in adoption. But he contends that such incident could not prove a custom of taking adult boys in adoption. He contended, not without force, that before the Adoption and Maintenance Act came into force, there was no prohibition at all under the general principles of Hindu law, restricting age limit of an adoptive boy to any particular age. The boy used to be adopted when he is young as also when he is old. From that, no inference could be drawn that there was a custom of taking to adoptiononly a very young boy or only a grown up boy.
13. Mr. Patil, the learned Advocate appearing for the respondent-plaintiff, on the other hand invited my attention to some of the authorities which have been discussed by the lower Courts. They are: : AIR1972Bom98 . However, in view of the fact that the appeal is capable of being disposed of on the first point mentioned above, I do not find it necessary to examine this aspect of the question any further.
14. The next contention urged by Mr. Jadhav, however, cannot be accepted. He contends that immediately after the plaintiffs so called adoption, Shivram had repudiated the same. He further pointed out that the plaintiff's conduct in dispossessing Shivram of his property, as a result of which Shivram was required to file the suit against the plaintiff for recovery of possession of land, is significant. In that suit he contended that the adoption was invalid. Mr. Jadhav contended that unless it was held in that case that the plaintiff was not a validly adopted son of Shivram, a decree for possession could not be passed. He tried to suggest that the decree involved an implicit judgment in rem to the effect that the plaintiff was not a validly adopted son of Shivram, I have perused the copy of the judgment. Ex. 83. From the said judgment it does not appear that the decree was passed against the present plaintiff on the basis that he was not an adopted son of Shivram. On the other hand it does appear that the question of validity of adoption of plaintiff was not required even to be touched by the Court. This must have been so because the plaintiff did not get any interest in the property of Shivram merely by his adoption in Shivram's family. Under Section 12 of the said Act, adoption cannot have the effect of divesting a person of his property which has already been vested in him. In the present case, the adoption could not have the effect of divesting Shivram of the property which had already vested in him. It is not disputed that Shivram was the last surviving coparcener so far as his branch was concerned and it is nobody's case that the property in his hand continued to be the joint family property. The ratio of the, judgment of this Court in L.P.A. No. 93 of 1976 decided on 18-4-1980: : AIR1981Bom109 would have, therefore, no application to the facts of this case. Thevesting in favour of Shivram was complete and hence the provision of Section 12(c) would inexorably come into play. The subsequently adopted son could not have divested Shivram of the property fully vested in him. If, therefore, the plaintiff dispossessed Shivram, Shivram could have successfully claimed that the possession be restored to him irrespective of the question whether the adoption was valid or not. It, therefore, follows that the judgment in the previous suit between Shivram and the present plaintiff could not be of any legal consequence so far as the present litigation is concerned.
15. However, in view of my finding that the plaintiff has failed to prove the factum and validity of his adoption, this appeal has got to be allowed. The decree passed by the trial Court and confirmed by the lower Appellate Court is set aside and the plaintiff's suit is dismissed.
In the circumstances of the case, there shall be no order as to costs.
16. Appeal allowed.