Monday, 21 October 2019

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
register in which the name of Pandhari was entered is in a torn
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
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.
22. The learned trial Court as well as frst appellate Court rightly
recorded their finding. The plaintiff failed to prove that he is the real

son/legal heir of deceased Mahadeo Mude and, therefore, plaintiff is
not entitled for partition in respect of the suit property. Appeal is
without any merit. Accordingly, it is dismissed with no order as to
costs.
Judge

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