DINAJI AND ORS.versusDADDI AND ORS.

                             DINAH AND ORS.
A                                  v.
                             DADD! AND ORS.

                            NOVEMBER 10, 1989

B             [G.L. OZA AND M. FATHIMA BEEVI, JJ.]

          Hindu Adoptions and Maintenance Act, 1956: Sections 12, Pro-
    viso (c) and 13-Hindu Widow-Adopting son-Whether deprived of
    her rights in husband's property.

          Registration Act, 1908: Sections 17( l)(b) and 49-Document
C creating right in adopted son to immovable property-Divesting mother
    of property-Whether requires registration-Unregistered document-
    Admissibility of.

        In a suit for injunction and possession of the suit property, on the
D basis of a registered sale deed executed by the widow of the owner of the
  property, filed by the appellants, 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 relin-
  quished her right to alienate any part of the property, came up for
  consideration.
E
        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 tower appellate court's judgment
  and held that after executing the deed of adoption, the widow had no
  right left in the property and, therefore, a transfer executed by her
F 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 relinquish-
  ment or conferment of right on the adopted son, the High Court was not
G 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
H Maintenance Act, 1956, departs from the Hindu General Law and

                                       144
                                DINAJI v. DADDI                            145

    makes it clear, that the adopted child shall not divest any person of any
                                                                                  A
    estate which has vested in him or her before the adoption.

          Section 13 enacts that when the parties intend to limit the opera-
    tion of proviso (c) to Section 12, it is open to them by an agreement to
    the contrary. [148C]
                                                                                  B


I         In the instant case, the widow was the limited owner of the pro-
    perty 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. [i47G-H]
                                                                                  c

          2. Section 17(1)(b) of the Registration Act, 1908 clearly provides
    that a document, where any right in movable property is either assigned
    or extinguished, will require registration. I1480 J .
                                                                                  D
          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 property will squarely fall within the ambit
    of Section 17(J)(b) and, therefore, under Section 49 of the Registration
    Act, this could not be admitted if it is not a registered document. I 148E]
                                                                                  E
          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.                           F

          S .P. Singh for the Appellants.

           Uday U. Lalit and A.G. Ratnaparkhi for the Respondents.
                                                                                  G
           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. 517/69,
     wherein the learned Judge of the High Court. dismissed the Second
     Appeal filed by the present appellant.                                       "
    146         SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

A         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 1mmovaole property includ-
    ing agricultural lands and houses.

          The property originally belonged to her husband and after his
B   death she got it as a limited owner and by influx of time and by COJiling
    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 admit-
    ted it in evidence in proof of adoption. This document, in addition to
    recital of the factum of adoption in presence of Pancha}'.at in accor-
c   dance with the custom of the Community also contained a covenant
    wherein she had stated that after this deed of adoption her adopted son
    will he entitled (Hakdar) to the whole property including movable and
    immovable and she will have no right to alienate any part of the pro-
    perty after this deed of adoption.
D
          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 considering the impact of S. 12 of the
    Hindu Adoptions and Maintenance Act rightly held that the adopted
    son, in view of the proviso (C) to S. 12, will only be entitled to pro-
E   perty 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
F   plaintiff. It is on this basis that the High Court maintained the Judg-
    ment of the lower appellate couri dismissing the suit of t)le plaintiff-
    appellant. Against this, by Special leave, this appeal bas come to this
    Court.

        Learned counsel for the appellant contended that the document
G which is described as a deed of adoption, in substance. is in two parts.
  One recites the factum ot adoption and the second contains the co-
  venant wherein she has relinquished 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
                                                                  1




H relinquishment or conterment of right on the adopted son, will be hit
                       DINAJI v. DADD! [OZA, J.]                    147

by S. 17(1)(b) read with S. 49 of the Indian Registration Act and,
                                                                           A
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:                                                                B

            ".12. Effects of adoption: An adopted child shall be
            deemed to be the child of his or her adoptive father of
            mother for alJ 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      c
            family:

                 Provided that:

                 (a) the child cannot marry any person whom he or          D
                 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 obligations, if any, attaching to   E
                 the ownership of such property, including the obliga-
                 tion 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          F
                 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       G
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 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      H
    148         SUPREME COURT REPORTS                (1989] Supp. 2 S.C.R.

A   death as is clear from the Scheme of S. 12 proviso (C).

          S. 13 of the Hindu Adoption and Maintenance Act reads:

                13. Right of adoptive parents to dispose of their pro-
                perties:
B
                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 vi~os or ,by
                will.                           •

C        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 1t 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.
D        Section 17(1)(b) of the Registration Act clearly provides 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
E S. 17(J)(b) and therefore under S. 49 of the Registration Act, this
  could not be admitted if it is not a registered document. Unfortu-
  nately, 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
F could not be admitted. In view of this, the appeal is allowed. 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.