Law Web: Whether son who is given in adoption can claim partition of property of biological father?

The suit was fled in the year 1982. The documents fled in

this appeal along with Civil Application No. 365 of 2014 show that sale deed

executed by the plaintiff in favour of Moreshwar Deotale is of the

year 2003. The 7/12 extracts of Survey No. 49/3, 24 and 25/1 show

the name of plaintiff as “Pandhari Fakira Mude. All the material

documents filed/proved by the defendants clearly show that appellant

is not the son of Mahadeo Mude. He was given in adoption to Fakira

Mude when plaintif was aged about two years. Since then, plaintiff is

behaving a a son of Fakira Mude. The admission of plaintiff in his

cross-examination is very material. In the cross-examination, plaintiff has stated that defendant nos. 1 and 3 never cultivated the land of Fakira. He has denied material pleadings in the plaint in the cross examination.

He has stated in his cross-examination that he was

cultivating sixteen acres of land along with Fakira. He had purchased

nine acres of land from one Kalamkar and he sold that land to Upase.

He has further stated that land was purchased from the income of

agricultural lands of Fakira. This itself shows that he was residing with

Fakira and as a son he had purchased agricultural land from Kalamkar

out of the income of agricultural land of Fakira. From the perusal of

the cross-examination of the plaintiff, it appears that he has given

evasive answers. In view of the material documents placed on record,

his evidence is not reliable. It appears from his cross-examination that

all the documents [Exhs.133 to 144] were collected by his son after

filing of the suit. The main brain for filing the suit is not the plaintiff,

but his son. The admission of plaintiff in his cross-examination shows

that his father Mahadeo died in 1963. Since then, till filing of the suit

in the year 2001, he did not claim any partition from the defendants.

The silence for a long time on the part of plaintiff itself shows that he

was given in adoption to Fakira. His conduct shows that he is adoptive

son of Fakira. His admissions and documents clearly show that he has

inherited the property left by his adoptive father Fakira. Therefore, he

cannot claim any partition in the property of his real father Mahadeo.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Second Appeal No. 79 of 2007

Pandhari Mahadeo Mude, Vs Vithoba Mahadeo Mude,

CORAM : M. G. GIRATKAR, J.

Dated : 17th October, 2019

01. The Second Appeal was admitted on 9th April, 2007 on the

following Substantial Question of Law :-

“When the fnding of adoption of the plaintif being

given as son and taken by Fakira be held proved in

absence of proof of essential ingredients of adoption?”

02. Present Second Appeal is against the concurrent judgments

of both the Courts below.

The facts giving rise to this appeal can be summarized as

under:-

03. The Appellant fled Regular Civil Suit No. 43 of 1982 before

learned Civil Judge, Junior Division, Hinganghat. The said suit was fled

for partition and separate possession of the property described in the

plaint. The respondents-defendants appeared and fled their Written

Statements. Issues were framed. Both parties adduced their

respective evidence. Learned Civil Judge [Junior Division] dismissed

the suit, holding that the appellant-plaintif is the adopted son of Fakira

Mude and, therefore, he cannot claim interest in the property left by

his real father, Mahadeo. Mahadeo and Fakira were real brothers.

Mahadeo had three sons, i.e., appellant and defendant nos. 1 and 2.

As per the defence of the respondents, plaintif was given in adoption

to Fakira. Fakira was not having any issue. Mahadeo and Fakira

partitioned their property. Mahadeo and Fakira were having equal

sixteen acres of agricultural land each. The appellant inherited the

said property from Fakira. It is the contention of the appellant that he

was not given in adoption and, therefore, he has right in the property

left by his real father, Mahadeo. Therefore, the suit was fled. Learned

Civil Judge [Junior Division], Hinganghat, dismissed the suit. Appeal

was fled before the District Judge, Wardha. The said appeal was also

dismissed. Hence, the present Second Appeal before this Court.

04. Heard learned Adv,. Shri Khapre for the appellant. He has

submitted that various documents fled on record show that the

appellant was not given in adoption. The Will-Deed executed by Fakira

on 30th April, 1955 shows that appellant was not his adopted son. Other

documents, i.e., School Leaving Certifcate etc., show that appellant is

the son of Mahadeo. Learned counsel has pointed out Exhs. 133 to

144 and submitted that the appellant is the son of Mahadeo and not

Fakira.

05. Learned Adv., has submitted that issue in respect of

adoption was not framed by the trial Court. The basic ingredients of

adoption are not proved. Hence, appellant cannot be said to be an

adoptive son of Fakira. Learned Adv., has submitted that contents of

Will-deed [Exh.133] show that appellant is the cousin of Fakira. There

is no dispute that his real father Mahadeo left sixteen acres of

agricultural land after his death. Defendant Nos. 1 and 3 purchased

some agricultural land out of the income of the said property.

Therefore, the property purchased by defendant nos. 1 and 3 after the

death of Mahadeo becomes a joint family property. The appellant is

the son of Mahadeo. Therefore, he is entitled for partition and

separate possession of the suit property. Learned counsel has

submitted that the document executed by Fakira in his lifetime is the

most important document which shows that the appellant is the cousin

of Fakira and not his son. Learned counsel has submitted that being a

real son of Mahadeo, appellant is entitled for his share in the suit

property. In support of his submission, the learned counsel pointed out

following judgments:-

[a] Neelu Narayani (D) through L.Rs. & others Vs.

Lakshmanan through L.Rs. & others [2000 AIR

SCW 1949],

[b] Mudigowda Gowdappa Sankh & others Vs.

Ramchandra Revgowda Sankh (dead) by his

legal representatives & another [AIR 1969 SC

1076],

[c] Ghisalal Vs. Dhapubai (dead) by L.Rs. & others

Dhapubai (dead) wife of Gopalji through L.Rs.

Vs. Ghisalal & others [AIR 2011 SC 644],

[d] A. Raghavamma & another Vs. A. Chenchamma

& another [AIR 1964 SC 136],

[e] Yesu Sadhu Nimagre & others Vs. Kundalika

Babaji Nimagre & another [1977 Mh. L.J. 130], and

[f] Nandlal Sakharam Vs. Babu Bhika & others [1997

(2) ALL.M.R. 105],

06. Heard learned Adv. Shri S.R. Deshpande for respondent nos.

1 to 5. He has pointed out the cross-examination of appellant. In his

cross-examination, he has admitted that all those documents which

are fled on record are obtained by him after fling of suit. The crossexamination

shows that those documents are not reliable. The School

Leaving Certifcate proved by PW 2 is not reliable because of the

admission of PW 2 in his cross-examination. The School Leaving

Certifcate was obtained by the son of plaintif. Those documents are

not reliable. On the other hand, the documents fled by the

respondents/defendants clearly show that plaintif was given in

adoption to Fakira. His name is recorded in various documents,

revenue records etc., as “Pandhari Fakira Mude.” All those documents

show that the plaintif is the adoptive son of Fakira and, therefore, he

cannot claim partition of the property left by Mahadeo. Learned Adv.,

has pointed out evidence of DW 2 – Shri Kamlakar and submitted that

he has stated in his evidence that plaintif was given in adoption to

Fakira when he was aged about two years. As per his evidence, all the

formalities/rituals were performed. Therefore, adoption is proved.

07. Learned Adv. Shri S.R. Deshpande has submitted that issue

in respect of legal heir, i.e., Issue No.1, was framed by the trial Court.

Evidence in respect of the issue of adoption was adduced by both

parties. Therefore, there was need to frame issue of adoption. In

support of his submission, he has pointed out the decision in the case

of Satyadhyantirtha Swami Vs. Raghunath Daji Patil & others

[AIR 1926 Bombay 384] Learned Adv., has pointed out admission of

plaintif and submitted that for a long period, he did not claim any

partition and, therefore, the suit is barred by law of limitation. In

support of his submission, he has pointed out the decision in the case

of Abdul Basheer & others Vs. Abdul Kareem & others [AIR 2008

(NOC) 507 (Raj.)].

08. There is no dispute that Mahadeo and Fakira were real

brothers. Mahadeo and Fakira were living separately. Both were

having sixteen acres of agricultural land each. There is no dispute that

Mahadeo had three sons, i.e., plaintif and defendant nos. 1 and 3. It is

the case of the plaintif that being a real son of Mahadeo, he is entitled

for a shre in the property left by Mahadeo. On the other hand, it is the

case of the defendants that the plaintif, Pandhari, was given in

adoption to Shri Fakira Mude. Therefore, the plaintif cannot claim

partition of the property left by Mahadeo.

09. There is no dispute that Fakira was not having any child.

Evidence of DW 2 Shankar Kalamkar shows that he was preset at the

time of adoption ceremony. He has stated that plaintif, Pandhari was

grown up in the family of Fakira. Plaintif was given in adoption by his

father, Mahadeo, to Fakira. Fakira was not having any child. At the

time of adoption, one Nanaji Bramhan [priest] was called for adoption

ceremony. After bathing and wearing new clothes, the plaintif was

given by Mahadeo to Fakira. Hom-Havan rituals were performed by

the priest. That time, Yashodabai, real mother of plaintif, and

Deokabai, adoptive mother, were present. He has further stated that

Yashoda and Mahadeo gave their son Pandhari to Fakira. The plaintif

was residing with Fakira. Till the death of Fakira, he was cultivating his

land. After his death, plaintif, Pandhari, is cultivating those

agricultural lands. Plaintif is known in their village as “Pandhari Fakira

Mude.”

10. This witness – Shankar Kalamkar was aged about eighty

years when he adduced his evidence before the Court. Age of the

plaintif when he adduced his evidence before the Court appears to be

sixty-four years. Therefore, the evidence of Shankar Kalamkar that he

was aged about eighteen years when the plaintif was given in

adoption to Fakira appears to be correct.

11. The oral evidence in respect of adoption is well corroborated

by the documentary evidence. Various documents fled on record

show that plaintif is the son of Fakira Mude.

12. Learned counsel Shri Khapre has apointed out the Will-Deed

and submitted that in the Will-Deed, deceased Fakira has stated that

plaintif is his cousin and, therefore, this document itself shows that

Fakira never adopted plaintif as his son. Hence, the adoption is not

proved. Therefore, plaintif is entitled for his share left by his father,

Mahadeo. In support of his submission, learned Adv. Shri Khapre has

pointed out the decision in the case of Neelu Narayani [supra].

Learned Adv., has pointed out other documents and submitted that

various documents, i.e., School Leaving Certifcate etc., show that the

documents fled on record proved that the plaintif is the son of

Mahadeo and not Fakira. In support of his submission, he has pointed

out the decision in the case of A. Raghavamma & another [supra]. The

Hon’ble Apex Court has held in the case of Neelu Narayan [supra] as

under:-

“In these appeals the appellants are calling in

question the correctness of the order made by the High

Court in a second appeal. Respondent No.1 –

Lakshmanan brought a suit stating that he had the right

of redemption in respect of certain property. The

defendant also fled another suit to which he plaintif

was impleaded as defendant. Both suits were tried

together. Ultimately the trial court took the view that

the respondent No.1 had not established that he is the

son of Kesavan and therefore, he had no right to claim

redemption. That view of the trial Court was upheld in

appeal by the District Court. In the second appeal, the

High Court relied on two documents, the Exhibit A-9 and

Exhibit A-10. Ex. A-9 was a chitty bond executed by

Lakshmi Pankajakshy, Kesavan Rama-krishnan and

Kesavan Lakshmanan on 27-8-1128. Pankajakshy was

referred to as belonging to Cheriya Pattur House. On

that basis the High Court came to the conclusion that

interconnection between the parties were established

and Ramakrishnan and Lakshmanan are sons of

Kesavan and when they are connected with

Pankajakshy, daughter of Lakshmi and all of them are of

the same place of Pathirikari Muri. Cheriya Pattur House

of Pathirakari Muri is the very same family referred to in

Exh. A-10. The partition deed Ex.A-10 dated 12-6-1101

was examined and the High Court stated that the

property belonged to the members of the family

Cheriyapattu Veedu situated in Pathirikarimuri. Group

No.5 therein is of Lakshmi and her minor children -

Pankajakshy, Kesavan Ramkrishnan and Kesavan

Lakshmanan. They divided the tarward properties. That

Kesavan had two sons by name Ramkrishnan and

Lakshmanan and that their mother was Lakshmi is

evident from, and clearly established by this document

and, therefore, it was evident from, and clearly

established by this document and, therefore, it was

evident that Kesavan Lakshmanan is the plaintif in the

suit was the son of Lakshmi or the descendant of

Kesavan. On that basis the suit was decreed.”

“3. When a question of title arises on the basis of

interpretation of the proved document it is certainly a

question of law and necessarily such a question can be

examined even in a second appeal and that is what has

been done by the High Court. We do not think it proper

to interfere with the High Court’s judgment. The

appeals are dismissed. There shall be no order as to

costs.”

Similarly, Hon’ble Apex Court in the case of A Raghavamma

& another [supra] has held as under :-

“One V was alleged to have been adopted by his uncle P

in 1905. So far as the documentary evidence went, till

1911 there was no document recording the fact that V

was the adopted son of P, and after 1911 there had

been contradictory recitals in the documents. Broadly

speaking whenever V executed a document he

described himself as the son of his father C and

whenever third parties executed documents, he was

described as adopted son of P. He fled suits,

sometimes as the son of C and sometimes as the

adopted son of P. His name was entered in the accounts

relating to village Paruchur, but not in the accounts

relating to village Upputur; he gave evidence declaring

himself as the son of C and also insured his life as such;

he operated on the accounts of third parties as the son

of C, while in the will executed by C, he was described

as the adopted son of P, on the death of V his adoptive

mother, who under the will of C was entitled to continue

in possession and management, handed over the entire

management of V’s wife indicating thereby that the will

was not really intended to take efect.”

“Held that in this state of evidence it was not possible to

say that there had been a consistent pattern of conduct

from which a Court should draw the inference that the

adoption must have taken place. In this state of

evidence when both the Courts found, on a careful

consideration of oral and documentary evidence and the

probabilities arising therefrom that V’s adoptive mother

on whom the burden of proof lay to establish that V was

adopted to P had failed to discharge it, the Supreme

Court could not say that the fnding was vitiated by such

errors that it should review the entire evidence over

again and come to a conclusion of its own. The supreme

Court would therefore, accept the concurrent fnd of fact

that there was no adoption.”

13. In the present case, the defendants have proved by

adducing evidence of DW 2, Shankar Kalamkar, about the adoption

ceremony. The evidence of DW 2 Shankar Kalamkar is reliable in view

of other corroborated documentary evidence. Learned counsel has

placed reliance on the will-deed executed by Fakira during his lifetime.

The said will-deed is to be read as a whole. Plaintif has denied the

contents of portion marked ‘A’ of the will-deed. It is pertinent to note

that this Will-Deed [Exh.97] is proved by the plaintif. Therefore, he

cannot deny the contents. From the reading of the Will-Deed [Exh.97]

it is clear that deceased Fakira was not having any child. The plaintiff Pandharinath was maintained by him as a son from his childhood and

he has love and afection like his son. He has further stated in the Willdeed

that the plaintiff is his only legal heir and after his death, the

property would devolve on him. But he has a wife and, therefore, he

has executed Will-Deed. The contents of Will-Deed further show that

all the property mentioned in the Will-Deed was given to his wife and

after the death of his wife, the plaintiff would become the owner of

the property. This Will-deed was acted upon by the plaintif. Revenue

records show his name as “Pandhari Fakira Mude.” Plaintiff became

the owner by virtue of Will-Deed. Mutation entry is recorded in the

year 1988, i.e., after the death of his adoptive mother. The admission

of plaintif in his evidence clearly shows that he is only in possession of

the property left by Fakira. Therefore, it is clear that contents of Will-

Deed cannot be taken to show that plaintiff is the cousin and not the

real son. Though it is written in the Will-Deed that he was his cousin ,

in the opening para of the Will-Deed, it is specifically written that the

plaintiff was maintained from his childhood by him as a son and he is

the only legal heir of his property. This itself shows that plaintiff is the

son of Fakira. After adoption by Fakira, his status in the real family

comes to an end.

14. There is no dispute that after the adoption, it is death in the

real family and birth in adoptive family. Therefore, plaintiff cannot

claim a share in the property of his real father. Plaintiff has admitted

in his cross-examination that he along with defendant nos. 1 and 3

purchased agricultural land from one Damodhar Nilkanthrao and others

in the year 1967. His name in the registered sale-deed [Exh.153] is

“Pandhari Fakira Mude.” on the basis of the sale-deed, his name is

recorded in the 7/12 extract as “Mude Pandhari Fakira”.All 7/12

extracts fled in the appeal along with Civil Application No. 365 of 2013

show the name of plaintiff as “Pandhari Fakira, resident of Kalamna.”.

The sale-deed fled with the List is of the year 2003. The plaintiff has

sold his agricultural land to one Moreshwar Deotale. He has sold his

agricultural landbearing Survey No. 124. In the sale-deed, name of

plaintiff is shown as “Pandhari son of Fakira Mude.”. Affidavit filed with

the sale-deed dated 20th April, 2003 shows that plaintiff has sworn his

affidavit in the name of Pandhari Fakira Mude. The 7/12 extract filed

with sale-deed of Survey No. 124 shows the name of the plaintif as

“Pandhari Fakira, resident of Kalamna.”

15. Plaintiff has admitted in his cross-examination that there is

no other person named as “Pandhari Fakira” in the village Kalamna.

The plaintiff has admitted that some portion of his agricultural land was

acquired by the Government for Lower Vena Project. A notice was

issued in the name of Pandhari Fakira Mude. He has received the

competion of the acquired land. Exh.162 is the notice along with the

statement of Land Acquisition Ofcer. This statement shows that land

of Pandhari Fakira Mude bearing Survey No. 124, area 0.5 Are was

acquired. The plaintif has admitted that he has received the

compensation of the said land. Ration Card [Exh.161] shows the name

of the plaintif as “Mude Pandharinath Fakira, resident of Kalmana.”

Voter List [Exh.160] shows the name of plaintif as “Mude Pandhari

Fakira.”The various documents fled by the defendants show that those

documents are before fling of the suit. The Green Card, which was

issued to the plaintif, is also in the name of Pandhari Fakira. All the

documents fled by the plaintif were fled after fling of the suit. He

has admitted in his cross-examination that before fling the suit, he

was not having any document to show his name as “Pandhari Mahadeo

Mude.”

16. Learned Counsel Shri Khapre has pointed out School Leaving

Certifcate [Exh.133]. This document is proved by PW 2 – Baba

Kulsunge. He has stated in his evidence that Exh.133 was issued by

the Headmaster Shri Deotale. Headmaster Shri Deotale is the relative

of plaintiff. His further cross-examination shows that Exh.133 is not a

reliable document. From the Register, this witness has stated that the Register is in a torn condition. There is no paging in the register. The

condition. It is not legible. The register does not show the name of the

school, name of the village etc. Therefore, cross-examination of this

witness clearly shows that Exh.183 is not a reliable document.

Moreover, cross-examination of plaintiff himself shows that this

document was obtained by his son. Therefore, admission of plaintiff

itself shows that those documents can be said to be prepared after

filing of the suit. Hence, those documents are not rightly relied by both

the courts below.

17. In view of the evidence on record, the cited judgments by

the side of appellant are not applicable to the case in hand.

18. Learned Adv. Shri Khapre has submitted that issue in

respect of adoption was not framed by the trial Court. Therefore, there

is no opportunity for the plaintif to adduce proper evidence.

19. The trial Court has framed Issue No.1 as under:-

“1. Does the plaintif prove that he is legal heir of

deceased Mahadeorao?”

The negative fnding is recorded on this issue. The plaintiff is claiming

that he is a real son of Mahadeo and he was never given in adoption

to Fakira. The evidence on record shows that he was given in adoption

to Fakira and, therefore, he is not the legal heir of his real father

Mahadeo. In the case of Satyadhyantirtha Swami [supra], this Court

has held that “If there is no issue framed on a question but the parties

have adduced evidence and discussed it before the Court, and the

Court decides it as if there was an issue about it, the decree need not

be set aside in appeal on the ground merely that no such issue was

framed.“ In the present appeal, though the issue in respect of

adoption was not specifically framed, Issue No.1 framed by the trial

Court includes the issue of adoption. Both parties adduced their

evidence in respect of the issue of adoption. Hence, the judgment of

Trial Court cannot be said to be bad for not framing of issue in respect

of adoption.

20. Learned counsel Shri Khapre has submitted that the

properties purchased by the defendant nos. 1 and 3 are a joint family

property because those properties were purchased from the income of

the joint family property. It is pertinent to note that defendant nos. 1

and 3 partitioned their property during the lifetime of their mother and

thereafter they have purchased their separate property. Revenue

record, i.e., Record of Right [Exh.159], shows the entry of mutation.

The remark of Revenue Inspector dated 17th September, 1975 shows

that Vithoba and Namdeo along with their mother Yashoda were

present. There was no dispute about the partition. Therefore, their

names were mutated. The plaintif was aware about all these facts,

but he did not raise any objection. Nothing is produced on record by

the plaintiff to show that the defendant nos. 1 and 3 purchased other

properties out of the income of the joint family property. Therefore,

claim of the plaintiff seeking partition in the property purchased by the

defendant nos. 1 and 3 is rightly discarded by both the Courts below.

21. The suit was fled in the year 1982. The documents fled in

this appeal along with Civil Application No. 365 of 2014 show that sale deed

executed by the plaintiff in favour of Moreshwar Deotale is of the

year 2003. The 7/12 extracts of Survey No. 49/3, 24 and 25/1 show

the name of plaintiff as “Pandhari Fakira Mude. All the material

documents filed/proved by the defendants clearly show that appellant

is not the son of Mahadeo Mude. He was given in adoption to Fakira

Mude when plaintif was aged about two years. Since then, plaintiff is

behaving a a son of Fakira Mude. The admission of plaintiff in his

He has stated in his cross-examination that he was

cultivating sixteen acres of land along with Fakira. He had purchased

nine acres of land from one Kalamkar and he sold that land to Upase.

He has further stated that land was purchased from the income of

agricultural lands of Fakira. This itself shows that he was residing with

Fakira and as a son he had purchased agricultural land from Kalamkar

out of the income of agricultural land of Fakira. From the perusal of