HANMANT LAXMAN SALUNKE Vs. SHRIRANG NARAYN KANSE

JUDGEMENT

(1.) In this Second Appeal admitted on 6-11-1996, this Court has framed the following substantial questions of law:

(2.) In short it is the case of the appellant that the adoption of the respondent by Smt. Parvatibai purportedly taken place on 2-11-1988 was and is illegal on account of the nonfulfillment of the conditions set out in Section 10 (iii) , Section 10 (iv) , Section 11 (iv) and Section 11 (vi) of the hindu Adoption and Maintenance Act, 1956 (for short "the Act").

(3.) The undisputed facts leading to this second appeal are that the appellant is the son of Laxman salunke and brother of Shankar Salunke, resident of borgaon, Taluka and District Satara. Shankar was married to Parvatibai of village Anagapur on or about 1/3/1961 and he was in service at Aurangabad. Parvatibai left Shankar in a year or two after her marriage with Shankar and never returned either to aurangabad or village Borgaon where the family i. e. the father of the appellant and Shankar had immovable property. On the contrary Smt. Parvatibai continued to stay at village Anagapur i. e. her parental / native village. Shankar died on 12/10/1984 at aurangabad and Parvatibai was not with him at that time. The appellant's father Laxman also died on 31/5/1985. Misc. Case No. 42 of 1985 filed by smt. Parvatibai for succession certificate was decided in her favour on 22/6/1986, whereas Misc. Application No. 277 of 1989 filed by another lady by name Gandhkala was also for the same purpose i. e. for succession certificate on the demise of Shankar. The present respondent appeared in the said Misc. Application No. 277 of 1989 and filed his Written statement contending that he was taken in adoption by smt. Parvatibai on 2/11/1988 and since Parvatibai had obtained succession certificate in Misc. Case no. 42 of 1985 as the successor to the movable and immovable property of late Shankar, Misc. Application No. 277 of 1989 could not be entertained. Parvatibai died in an accident on 6-7-1989 and, therefore, the respondent filed Misc. Application no. 83 of 1990 for obtaining the succession certificate as L. R. of Smt. Parvatibai and thus entitled to succeed to the movable and immovable property of Shankar. The present appellant also filed Misc. Application No. 166 of 1990 for heirship certificate claiming the property of late Shankar. All along the appellant was in possession of the joint family immovable property viz. residential house and agricultural land in Block No. 373. The respondent allegedly obstructed the plaintiff's possession over the agricultural land on 10-10-1991 and, therefore, the appellant filed Regular Civil suit No. 589 of 1991 for a declaration that the alleged adoption of the respondent by Smt. Parvatibai was illegal and void ab-initio. He also prayed for injunction. This suit was dismissed by the learned 2nd Joint Civil Judge, Junior Division at Satara on 16-12-1994 and, therefore, the plaintiff filed regular Civil Appeal No. 23 of 1995 which also came to be dismissed by the learned 2nd Additional District judge at Satara on 15-3-1996 and hence this Second appeal.