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PETITIONER: DINAJI AND ORS.

       Vs.

RESPONDENT: DADDI AND ORS.

DATE OF JUDGMENT10/11/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR 1153            1989 SCR  Supl. (2) 144  1990 SCC  (1)   1        JT 1989 (4)   434  1989 SCALE  (2)1178

ACT:     Hindu Adoptions and Maintenance Act, 1956: Sections  12, Proviso  (c)  and  13--Hindu  Widow--Adopting   son--Whether deprived of her rights in husband’s property.     Registration   Act,    1908:   Sections   17(1)(b)   and 49---Document  creating  right in adopted son  to  immovable property--Divesting  mother  of  property--Whether  requires registration--Unregistered document-Admissibility of.

HEADNOTE:     In  a  suit for injunction and possession  of  the  suit property, on the basis of a registered sale deed executed by the widow of the owner of the property, filed by the  appel- lants,  the  question of admissibility  of  an  unregistered document,  said to be Deed of Adoption, by which  the  widow conferred  on  the adopted son rights in  her  property  and relinquished her right to alienate any part of the property, came up for consideration.     The  trial court accepted the document only in proof  of adoption,  and decreed the suit. The first  appellate  court set  aside the decree. On appeal. the High Court  maintained lower appellate court’s judgment and held that after execut- ing the deed of adoption, the widow had no right left in the property  and, therefore, a transfer executed by  her  would not confer any title on the appellants.     Aggrieved,  the appellants filed an appeal,  by  special leave,  in this Court contending that as the deed ’would  be hit  by section 17(1)(b) read with section 49 of the  Indian Registration Act, regarding relinquishment or conferment  of right  on the adopted son, the High Court was not  right  in relying  on this clause to come to the conclusion  that  the widow had no right to transfer the property in favour of the appellants. Allowing the appeal, the Court,     HELD:  1. Proviso (c) Section 12 of the Hindu  Adoptions and  Maintenance Act, 1956, departs from the  Hindu  General Law and 145 makes it clear, that the adopted child shall not divest  any person  of any estate which has vested in him or her  before the adoption.

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   Section 13 enacts that when the parties intend to  limit the  operation of proviso (c) to Section 12, it is  open  to them by an agreement to the contrary. [148C]     In the instant case, the widow was the limited owner  of the property after the death of her husband. But after Hindu Succession  Act,  1956, came into force, she has  become  an absolute  owner.  Therefore,  the property  of  her  husband vested in her. Merely by adopting a child, she could not  be deprived of any of her rights in the property. The  adoption would  come  into play and the adopted child could  get  the rights for which he is entitled, after her death. [147G-H]     2. Section 17(1)(b) of the Registration Act, 1908 clear- ly  provides  that a document, where any  right  in  movable property  is either assigned or extinguished,  will  require registration. [148D]     In the instant case, that part of the deed which  refers to  creation  of an immediate right in the adopted  son  and divesting of the right of the adoptive mother in the proper- ty  will squarely fail within the ambit of Section  17(1)(b) and,  therefore, under Section 49 of the  Registration  Act, this  could not be admitted if it is not a registered  docu- ment. [148E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2116  of 1972.     From the Judgment and Order dated 1.2.1971 of the Madhya Pradesh High Court at Jabalpur in S.A. 517 of 1969. S.P. Singh for the Appellants. Uday U. Lalit and A.G. Ratnaparkhi for the Respondents. The Order of the Court was delivered by     OZA,  J.  This appeal arises out of the  Judgment  dated 1.2.1971  of  the  High Court of Madhya  Pradesh  in  Second Appeal  No. 5 17/69, wherein the learned Judge of  the  High Court  dismissed  the  Second Appeal filed  by  the  present appellant. 146     The  present appellant filed a suit for  injunction  and possession  on  the basis of a registered  sale  deed  dated 28.4.66  executed  by Smt. Yashoda Bai in  his  favour  with respect  to immovable property including agricultural  lands and houses.     The  property  originally belonged to  her  husband  and after his death she got it as a limited owner and by  influx of  time  and by coming into force of the  Hindu  Succession Act,  she  acquired  the rights of  an  absolute  owner.  On 28.4.63,  she adopted respondent Nain Singh as her  son  and executed  a document said to be the Deed of  Adoption.  This document  is not a registered document and the  trial  court admitted it in evidence in proof of adoption. This document, in addition to recital of the factum of adoption in presence of Panchayat in accordance with the custom of the  Community also contained a covenant wherein she had stated that  after this  deed  of  adoption her adopted son  will  be  entitled (Hakdar) to the whole property including movable and immova- ble  and she will have no right to alienate any part of  the property after this deed of adoption.     The  trial court decreed the suit. The  first  appellate court dismissed the suit setting aside the decree passed  by the trial court. The learned judge of the High Court consid- ering the impact of S. 12 of the Hindu Adoptions and Mainte- nance Act rightly held that the adopted son, in view of  the proviso  (C)  to S. 12, will only be  entitled  to  property

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after the death of the adoptive mother but the learned judge felt that the further covenant in the adoption deed deprived her  of that right and conferred that right on  the  adopted son, on this basis the learned judge of the High Court  came to  the conclusion that the widow after executing this  deed of adoption had no right left in the property and  therefore a transfer executed by her will not confer any title on  the plaintiff.  It  is on this basis that the High  Court  main- tained the Judgment of the lower appellate court  dismissing the suit of the plaintiffappellant. Against this, by Special leave, this appeal has come to this Court.     Learned  counsel  for the appellant contended  that  the document  which is described as a deed of adoption, in  sub- stance, is in two parts. One recites the facturn of adoption and the second contains the covenant wherein she has  relin- quished  her rights in the property and conferred rights  on adopted son. According to the learned Counsel, so far as  it refers to adoption, the courts below were right in admitting the  document  as an evidence of adoption but so far  as  it refers to a deed of relinquishment or conferment of right on the adopted son, will be hit 147 by  S. 17(1)(b) read with S. 49 of the  Indian  Registration Act and, therefore, the High Court was not right in  relying on this clause to come to the conclusion that the widow Smt. Yashoda Bai had no right to transfer the property in  favour of plaintiff-appellant.     Section  12 of the Hindu Adoptions and  Maintenance  Act reads as follows:               "12.  Effects  of adoption: An  adopted  child               shall be deemed to be the child of his or  her               adoptive  father  of 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 be served and replaced by those created  by               the adoption in the adoptive family:               Provided that:               (a) the child cannot marry any person whom  he               or she could not have married if he or she had               continued in the family of his or her birth:               (b)  any property which vested in the  adopted               child  before the adoption shall  continue  to               vest  in  such person subject to  the  obliga-               tions,  if any, attaching to the ownership  of               such  property,  including the  obligation  to               maintain relatives in the family of his or her               birth:               (c)  the  adopted child shall not  divest  any               person  of any estate which vested in  him  or               her before the adoption."     Proviso  (C)  of  this Section departs  from  the  Hindu General Law and makes it clear that the adopted child  shall not divest any person of any estate which has vested in  him on her before the adoption. It is clear that in the  present case,  Smt.  Yashoda Bai who was the limited  owner  of  the property  after  the death of her husband  and  after  Hindu Succession Act came into force, has become an absolute owner and therefore the property of her husband vested in her  and therefore  merely by adopting a child she could not  be  de- prived  of any of her rights in the property.  The  adoption would  come  into play and the adopted child could  get  the rights for which he is entitled after her 148 death as is clear from the Scheme of S. 12 proviso (C).

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S. 13 of the Hindu Adoption and Maintenance Act reads:               13.  Right of adoptive parents to  dispose  of               their properties:               Subject  to any agreement to the contrary,  an               adoption does not deprive the adoptive  father               or  mother of the power to dispose of  his  or               her  property  by transfer inter vivos  or  by               will.     This  Section  enacts that when the  parties  intend  to limit  the operation of proviso (C) to S. 12, it is open  to them  by an agreement and it appears that what she  included in  the  present deed of adoption was an  agreement  to  the contrary as contemplated in S. 13 of the Hindu Additions and Maintenance Act.     Section  17(1)(b) of the Registration Act  clearly  pro- vides  that  such  a document where  any  right  in  movable property  is  either assigned or extinguished  will  require registration. It could not be disputed that this part of the deed  which refers to creation of an immediate right in  the adopted  son and the divesting of the right of the  adoptive mother  in the property will squarely fall within the  ambit of S. 17(1)(b) and therefore under S. 49 of the Registration Act,  this could not be admitted if it is not  a  registered document. Unfortunately, the Hon’ble Judge of the High Court did not notice this aspect of the matter and felt that  what could  not be done because of the proviso (c) to S.  12  has been  specifically provided in the document itself but  this part  of  the document could not be read in evidence  as  it could  not be admitted. In view of this, the appeal  is  al- lowed. The Judgments of the High Court and that of the lower appellate Court are set aside and that of the trial court is restored.  In view of these special circumstances, there  is no order as to costs. N.P.V.                                     Appeal allowed. 149