KISAN BABURAO MEMANE Vs. SURESH SADU MEMANE

JUDGEMENT

(1.) MRS. Gokhale prayed for amendment of the second appeal. The grounds taken by the proposed amendment are purely legal grounds based on facts which are already on record. Prayer made by Mrs. Gokhale is granted.

(2.) BY this second appeal the appellants-original defendants have challenged the judgment and decree passed by the Joint Judge, Pune, on September 4, 1985 in Civil Appeal No. 815 of 1983 preferred against the judgment and decree passed by the 4th Joint Civil Judge, Senior Division, Pune, in Special Civil Suit No. 398 of 1973. By the aforesaid judgment and decree the Lower Appellate Court reversed the finding of the trial Court and directed the appellants to handover possession of the suit properties to the original plaintiff. A few facts which are germane for the disposal of this second appeal are as under : the plaintiff in this case had filed a suit against the defendants-appellants herein for possession of the suit properties. It is the case of the plaintiff that the suit property originally belonged to one Sadu Memane who died on June 20, 1919 leaving behind his wife Bhagubai. The said wife Bhagubai adopted the plaintiff on June 21, 1973. The plaintiff, therefore, filed a suit against the defendants being Special Civil Suit No. 398 of 1973 before the Joint Civil Judge, Senior Division, Pune, for possession of the suit properties on the ground that he being the adoptive son of Sadu Memane is entitled to get possession of the suit lands from the defendants. The aforesaid suit was resisted by the defendants who are brothers. Firstly, it was contended on behalf of the defendants that the adoption as alleged by the plaintiff dated June 21, 1973 is invalid and illegal on various grounds. Secondly, it was contended that after the death of Sadu Memane, Bhagubai was residing with the defendants. The defendants used to cultivate the suit lands and also look after Bhagubai, Bhagubai thereafter gifted the suit lands by a registered gift-deed to the defendants, who are also her nephews, out of love and affection on May 17, 1948. The said gift-deed is at Exh. 87. From May 17, 1948, it is the case of the defendants that they are cultivating the suit lands as owners till today. It was also contended on behalf of the defendants that even presuming that the adoption is valid the suit properties once divested by a gift-deed cannot be recovered by the plaintiff as adoptive son. The trial Court held that the adoption as alleged by the plaintiff has not proved and, therefore, by his judgment dated April 30, 1982 dismissed the said Special Civil Suit No. 398 of 1993. Against the aforesaid the judgment and decree passed by the trial Court the plaintiff preferred Civil Appeal No. 815 of 1983 before the Joint Judge, Pune, and the Lower Appellate Court passed the decree of possession in favour of the plaintiff. The Lower Appellate Court held that the plaintiff proved that he was adopted by Bhagubai on June 21, 1973. Further, the Lower Appellate Court relying on several authorities held that the said adoption is valid even if the age of the plaintiff was more than fifteen years at the time of adoption. The Lower Appellate Court further held that the adoption of the plaintiff on June 21, 1973 relates back to the death of Sadu Memane i. e. on June 20, 1919 and, therefore, the plaintiff is entitled to recover possession of the suit lands. The aforesaid judgment and decree is the subject matter of challenge before me.

(3.) AT the outset I may mention that Mrs. Gokhale, the learned Counsel appearing on behalf of the appellants-original defendants conceded the legal position to the effect that though at the time of adoption the plaintiff was more than fifteen years of age the said adoption is valid in view of the ratio as laid down in various judgments of this Court. However, Mrs. Gokhale strenuously challenged the decree on various other grounds. Firstly it was contended on behalf of the appellants that the suit filed by the plaintiff is liable to be dismissed as the same was premature on the date of the filing of the suit. Secondly, it was contended that the defendants have taken a specific stand that the suit property was gifted by Bhagubai on May 17, 1948 vide registered gift deed, Ex. 87, still, the plaintiff sought no declaration to the effect that the said gift-deed is not binding upon him and, therefore, on this ground also the said suit is liable to be dismissed. Thirdly, it was contended on behalf of the appellants that the gift dated May 17, 1948 is by Bhagubai in favour of the defendants was for legal necessity and, therefore, once the property is validly divested from Bhagubai, the adoptive son-plaintiff cannot claim the suit property. Lastly, it was contended on behalf of the appellants that in view of section 12 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "the Act of 1956") the plaintiff became adoptive son only from the date of the adoption i. e. from June 21, 1973 and in view of section 12 (c) of the Act of 1956 the adoptive son-plaintiff shall not divest any person in the suit property which was vested in the defendants before the adoption.