MANU/MH/0036/1992 Equivalent Citation: AIR1992Bom189, 1991(3)BomCR165, 1991(93)Bom.L.R.817, 1991(2)MhLj1470 IN THE HIGH COURT OF BOMBAY Second Appeal No.

846/1980 Decided On: 30.07.1991 Appellants:Devgonda Raygonda Patil Vs. Respondent: Shamgonda Raygonda Patil and another Hon'ble P.S. Patankar, J. Counsels: For Appellant/Petitioner/Plaintiff: T.S. Ingale forAjit P. Shah, Adv. For Respondents/Defendant: B.P. Apte, Adv. Subject: Family Acts/Rules/Orders: Hindu Adoption and Maintenance Act, 1956 - Sections 6(3), 10, 11, 12 and 16; Hindu Succession Act, 1956 - Section 30; Limitation Act, 1963 - Section 6 - Schedule - Articles 57 and 113 Cases Referred: Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504; Yarlagadda Nayudamma etc. v. The Government of Andhra Pradesh, AIR 1981 AP; V.K. Nalavade v. Ananda G. Chavan, AIR 1981 Bom 109; Vasant v. Dattu, AIR 1987 SC 398; Dharmu Shamrao Agalawe v. Pandurang Miragu Agalawe, AIR 1988 SC 845 Case Note: [A] Hindu Adoption and Maintenance Act (78 of 1956) - Sections 6, 10 and 12 - Adoption by lunatic - Not prohibited by Section 6 - Motive for adoption Not relevant. Held: Adoption by lunatic is not prohibited by Section 6. Motive for adoption is not relevent. Proviso (b) to Section 12 gets attracted only when there is property vested. In case of coparcener since there is no vested property and so proviso (b) to Section 12 will not get attracted. [B] Limitation Act, 1963 - Articles 57, 113 - Suit challenging adoption - Not filed within 3 years of adoption - Barred under Article 57. In a suit in which adoption is challenged and the suit is not for partition and separate possession, Article 113 will not apply and suit not being filed within 3 years from cause of action. Suit will be barred under Article 57. JUDGMENT Judge:

1. Three points arise for my determination in this Second Appeal (i) whether the plaintiff was adopted validly and legally on 18-10-1959? (ii) if validly adopted, then can he have right in the joint family property of his natural birth? and (iii) was the suit within limitation? Few facts are as follows :-2. 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 thereafter. However, thereafter he became lunatic and was not mixing with public. His natural father wanted to cut off his ties and to give all the property to his another son, Shamgonda, (defendant No. 1) and therefore, plaintiff was given in adoption to one Shrimati W/o Tatya Patil Defendant No. 2 on 18th October, 1959. The said adoption was invalid and illegal because (1) Devgonda was lunatic, (2) Shrimati died within a period of 3 days after the adoption and therefore it was suspicious, (3) The age of adopted child was more than 15 years at the lime of adoption and there was no custom in the family to adopt major person (4) Shrimati had no right to adopt to her husband and she was having no right to sale her property just prior to adoption; and (5) Giving and taking ceremony required for valid adoption had not taken place. It was, therefore, contended that Devgonda did not lose his right to get share in the family properties of his birth as he should be treated as its member. It was contended that the adopt ion had taken place with a view to deprive Devgonda of his right in the family property of his natural birth and effect should not be given to it so as to deprive him of his right in the family property of his natural birth. Written Statement came to be filed on behalf of the Respondent No. 1 i.e. defendant No. 1 who inter alia contended that adoption was legal and valid and Devgonda cannot claim any right whatsoever in the family properly of his natural birth after adoption. It is also contended that partition had taken place and lands came to be divided between his father and himself. It was denied that Devgonda was lunatic on the date of adoption or that it had taken place to deprive him of any right in the family property of his birth. It was also contended that the suit was beyond limitation. 3. 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 dated 18th October, 1959 was illegal and invalid. It was also held that the suit was beyond limitation as it has not been filed within the period of 3 years, from the date of adoption (The suit was filed on 11-10-1971). The learned Judge held that considering Article 57 of the Limitation Act, it was beyond limitation. 4. Mr. Ingale, the learned Advocate appearing on behalf of the Appellant-plaintiff has very vehemently submitted that adoption of Devgonda on 8th October, 1959 was invalid and illegal and in any case it cannot be considered as valid because it was effected with a view to deprive Devgonda from getting share in the family of his birth. In support of this submission he raised following contentions: (1) Devgonda was lunatic and therefore he could not have been adopted. Further according to him the finding of the Court below that Devgonda was not lunatic was not correct. 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) which is as follows : "The person adopted is capable of being taken in adoption." Section 10 of the said Act mentions the persons who may be adopted or who are capable of being taken in adoption and states as follows :-Section 10 : No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely(i) he or she is a Hindu; (ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. Therefore, this S. 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 Catatonic Schizophrenia. He has further stated that Devgonda was treated for his schizophrenia during 1956 and in 1957. He has stated in his evidence as follows : "Schizophrenia is a severe type mental disorder which sometimes amounts to insanity as is understood by layman. The variety of Schizophrenia catatonic in which the patient remains mute, rigid and negativistic i.e. uncooperative. In such type of disease the patients are not able to understand all their actions and they have no sight of their illness. "In the cross-examination he has stated that patient was responding to treatment and he was discharged because he was 'improved mark-ably'. This has taken place in January, 1957. The medical papers are produced on record at Ext. 91 which show that he was only given electric shock treatment in the year 1956. There may be some mental aberration but the evidence on record cannot show conclusively that Devgonda was lunatic. All this evidence cannot show that on the date of adoption Devgonda was lunatic and in my view the conclusion drawn by the Court below was right in the respect. 6. Mr. Ingale next contended that Shrimati was not in a position to adopt and she died few days after the adoption. 1 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. Mr. Ingale contended that giving and taking ceremony had not taken place and therefore adoption was invalid. 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 MANU/SC/0145/1958 : AIR1959SC504 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. Mr. Ingale then contended that the adoption had taken place with a view to deprive Devgonda from getting any property in the family of his birth and therefore invalid. 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. 11. Mr. ingale raised a very interesting point in view of S. 12 proviso (b) of Hindu Adoptions and Maintenance Act. Mr. Ingale contends that in spite of adoption Devgonda did not lose his right in the family property of his natural birth since the said property was vested in him on his birth. Mr. Apte, the learned Advocate appearing on behalf of the Respondent No. 1 contends that because of adoption, Devgonda became the member of the family of Shrimati and he cannot have any right in the coparcenary property of the family of his birth. There was no property vested in him prior to adoption and therefore he cannot lake the said property along with him when he was adopted and cannot claim any share in the said coparcenary or joint family property. 12. Mr. Ingale relied upon MANU/AP/0051/1981 : AIR1981AP19 Yarlagadda Nayudamma etc. v. The Government of Andhra Pradesh. This judgment, no doubt, supported the proposition of Mr. Ingale, It was a writ petition under the Ceiling Act. The question arose before the Andhra Pradesh High Court regarding interpretation of S. 12 Proviso (b). The Andhra Pradesh High Court held as follows (at page 21) : "This apart, the coparcener has got every right u/S. 30 of the Hindu Succession Act to will away his property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may be, that at a time when he alienated or willed away, there may not have been a definite demarcation of the sons; but certainly he would be entitled to a particular share along with other coparceners which could be given effect to by various modes of disposition. That pre-supposes that he had got an independent right by birth which might be dormant in certain cases and patent in other cases. From the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it," Therefore according to the said Division Bench when a member of coparcenary governed by Mitakshara School is given in adoption, his undivided interest in the coparcenary property would continue to vest in him . even after adoption by reason of the proviso (b) to S. 12 of Hindu Adoptions and Maintenance Act. The property vests in a coparcener by birth and hence he gets a vested right in that property by virtue of inheritance. This view is based on the commentary on Hindu Law by Shri S. V. Gupte which differs from the view expressed in the Rook on Hindu Law by Mulla. With great respect, it is not possible for me to agree with the view expressed by Andhra Pradesh High Court. The reasons are as follows :-A coparcener gets a right by birth in coparcenary property. However, the said right or interest of coparcener is liable to fluctuation, increasing by the death of a coparcener and decreasing by birth of a new coparcener. Then such a coparcener has right to partition of the coparcenary property. He can bring about his separation in status by some definite and unequivocal unilateral declaration of his intention to separate himself from the family and enjoy his share in severally. On such partition, the shares of coparceners are defined and then specific property is vested in him. Till partition takes place, he is having right of joint possession and enjoyment. There is community of interest between all members of the joint family and every coparcener is entitled to joint possession and enjoyment of coparcenary property and to be maintained. It is well established that the essence of coparcenary under Mitakshara Law is unity of ownership. The ownership of the coparcenary property vests in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that

family, whilst it remains undivided can predicate that he has a definite share e.g. one third or one-fourth in the joint and undivided property. His interest is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. Considering this, according to me, there is no vested property in a coparcener and therefore proviso (b) to S. 12 cannot be attracted. It is only those properties which are already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener can only be said to be vested in him and can pass on to him after the adoption. Therefore the properties which had already become vested in him before adoption as absolute owner are not forfeited by the adoption and the adoptee continues to hold them in the new family. But in the case of coparcenary property it cannot be said that a coparcener was having right to a particular part of it so as to get it vested. 13. Section 12 speaks about effects of adoption. It has three provisos which are exceptions to the general rule contained in main part. The effect of adoption is that the adopted child is to 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 have been severed and replaced by those created by the adoption in the adoptive family. Proviso (b) says that the property which is vested in the adopted child before adoption shall continue to vest in the adoptee, subject of course, to any obligation attaching to the ownership of such property including the obligation of the adoptee to maintain relatives in the family of his or her birth. This proviso therefore clearly says that the adopted child shall take from the family of his birth to the family of adoption only that property which was vested in him before adoption and no other. If the property which was not vested in him as the absolute owner thereof, then the said property is not taken away by him from the family of his birth to the adoptive family. 14. Section 12 and particularly proviso (c) to it came for consideration before the Division Bench of this Court and also before the Supreme Court. The Division Bench of our Court in MANU/MH/0301/1981 : AIR1981Bom109 V. K. Nalavade v. Ananda G. Chavan considered the meaning of word "vest". In the said case one Govinda died in 1926 as a member of the joint family of himself and his brother Dhondi. The family owned various properties which were ancestral. Dhondi had 2 sons. On 1-4-1957 Govinda's widow adopted Ananda, one of the sons of Dhondi. The question arose whether Ananda could challenge certain post adoption alienations made by Dhondi on the basis that he was coparcener of equal status in place of his adoptive father Govinda on 1-4-1957 or whether he had no such right because his adoption could not have the effect of divesting Dhondi of the property held by him since 1929 in view of the proviso (c) of S. 12. The Division Bench held that the adoptee has equal status in the family of his adoptive father and he could challenge the alienations effected after the adoption. The property left with Dhondi on the death of Govinda in 1929, continued to be the joint family property, notwithstanding his being the sole surviving coparcener. The title of Dhondi was defensible. There was no question of property being vested in Dhondi or his being divested by Ananda in 1957 on adoption really arose. Ananda succeeds to the interest of his father as coparcener by sheer force of this legal provision as per rules of survivorship. This Court observed the word "vest" is a word of variable import, its precise meaning depending on the context. Ownership of the joint family properly vests in the joint family while management thereof alone vests in the Manager. No one member, including even a sole surviving coparcener, can ever claim to be the owner of the entire or any specific share in a specific property, till the partition takes place, the quantum of the share and the extent of the property falling to it till then, being in a perpetual state of fluctuation." The Division Bench further held that S. 12 consists of two parts. The second part specifically deals with the ties forged and snapped on adoption and their effect on the right in the property acquired during the subsistence of such ties. It is observed "The second part takes notice of the inevitable retrospective effect of the severance and replacement of the "ties" on adoption and consequential divesting of the adopted son and others of the properties inherited as the nearest available heir during the subsistence of the pre-adoption ties, consistent with the fiction of his being born in adoptive family. While devolution of the property on the member of the joint family entering therein by birth or adoption, under the rule of survivorship becomes effective only on partition, the succession to the same under rule of inheritance by the nearest available heir becomes effective immediately on the death of the holder, when succession opens. Second part, however, makes such divesting ineffective firstly by culminating all pervasive "for all purposes" fiction of the first part from this part, and secondly by making the post-adoption ties effective from the date of adoption; and thirdly, by engrafting -an exception to ordinary retrospective effect of severance and replacement of "ties" by enacting cls. (b) and (c) in the proviso and expressly preventing the divesting of

the child and other persons of the properties inherited by them, as nearest heir, during the subsistence of the pre-adoption ties. Merely making adoption effective from the date of adoption could not have had this effect. Arguably such date could be taken as the date from which, rights acquired under the ties newly forged could be enforced with retrospective effect. The "for all purposes" fiction of the first part also could have operated to produce the opposite result. Clauses (b) and (c) of the proviso thus form integral part of the second part of the section which is aimed at preventing the adoption lies from having any retrospective effect on the properties vested". In my view S. 30 of the Hindu Succession Act supports the view that coparcenary property is not vested in the coparcener. The legislature therefore included S. 30 with a view to enable a coparcener to dispose of his interest in the coparcenary property by Will or other testamentary disposition. But for this enabling provision, that was not possible. 15. The question of interpretation of proviso (c) to S. 12 arose before the Supreme Court in MANU/SC/0308/1986 : AIR1987SC398 Vasant v. Dattu and the Supreme Court has observed as follows (at page 399): "We are concerned with proviso (c) to S. 12. The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but with more members than before. There is no fresh vesting or divesting of the estate in anyone." 16. The same view came to be reiterated by the Supreme Court in MANU/SC/0128/1988 : [1988]2SCR1077 , Dharmu Shamrao Agalawe y. Pandurang Miragu Agalawe. The Supreme Court also approved the decision of this Court in AIR 1981 page 109. Therefore, in my view, if there is coparcenary or joint family in existence in the family of birth on date of adoption, then the adoptee cannot be said to have any vested properly. The property does not vest and therefore provision of S. 12 proviso (b) is not attracted. In the context of S. 12 proviso (b) 'vested property' means where indefeasible right is created i.e. on no contingency it can be defeated in respect of particular property. In other words where full ownership is conferred in respect of a particular property. But this is not the position in case of coparcenary properly. The coparcenary property is not owned by a coparcener and never any particular property. All the properties vest in the joint family and are held by it. I therefore reject the contention of Mr. Ingale. 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. 18. In the result the appeal fails and the same is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 19. Appeal dismissed.

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