2025 INSC 14

SLP (C) Nos. 10558-59 of 2024 Page 1 of 30

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. of 2025

(@ SLP (C) Nos. 10558-59 of 2024)

Sri Mahesh

…Appellant(s)

Versus

Sangram & Ors.

…Respondent(s)

J U D G M E N T

C.T. RAVIKUMAR, J.

1. Leave granted.

2. In the captioned appeals by Special Leave the

appellant calls in question the common judgment dated

14.02.2024 of the Karnataka, High Court, Dharwad

Bench, passed in RFA Nos.100168 and 100247, of 2018

which emanated from the judgment and preliminary

decree dated 31.03.2018 in OS No.122 of 2009 of the

Court of III

rd

Additional Senior Civil Judge, Belagavi.

3. The self-same appellant was the plaintiff in OS

No.122 of 2009 filed for partition of the suit schedule

properties and separate possession against the

SLP (C) Nos. 10558-59 of 2024 Page 2 of 30

defendants. Respondent Nos.1 to 4 herein were the

original defendant Nos. 2 to 5 respectively in the said

suit. Pending the first appeals, respondent

No.5/defendant No.6 died and consequently, his legal

representatives were impleaded as additional

respondent Nos.5A to 5F and they are respondent Nos.5

to 10 in these appeals.

4. The facts of the case necessary for disposal of the

captioned appeals are as follows:-

One Bhavakanna Shahapurkar was the original

owner of the suit schedule properties and original

defendant No.1-Smt. Parvatibai was his legally wedded

wife. They had no issues in their wedlock and hence,

with the consent of defendant No.1 the said Bhavakanna

married one Laxmibai without dissolving his first

marriage with defendant No.1. In his wedlock with Smt.

Laxmibai, Bhavakanna Shahpurkar got two children,

namely, Parashuram and Renuka. O n 04.03.1982,

Bhavakanna Shahapurkar died leaving behind two

widows. After his demise, OS No.266/1982 was filed by

defendant No.1 against Laxmibai, and her children

Parashuram and Renuka for partition and separate

possession of suit schedule properties. Based on a

compromise, a decree was drawn in the said suit and

SLP (C) Nos. 10558-59 of 2024 Page 3 of 30

later, in the final decree proceedings defendant No.1

was allotted and thereby acquired 9/32 share in

schedule ‘A’ and ‘D’ properties. The appellant

herein/the plaintiff was adopted by defendant No.1-

Parvatibai on 16.07.1994. The adoption deed was signed

and got registered by his natural father and the adoptee

mother (defendant No.1) and other witnesses. Later, the

appellant came and started residing with defendant No.1

as her adopted son after relinquishing all his rights in his

natural family. At the time of his adoption the appellant

was aged 21 years. The case of the appellant/plaintiff in

OS No.122 of 2009 is that on being adopted he became

the legal heir of Bhavakanna and, therefore, entitled to

half share in the suit schedule properties. According to

him, in such circumstances, defendant No.1 was not

having absolute right or title to execute sale deed dated

13.12.2007 in favour of defendants 2 and 3 without his

consent as also to execute gift deed dated 27.08.2008 in

favour of defendant Nos.4 and 5. Earlier, the appellant

demanded for partition of the suit schedule properties.

However, defendant No.1 refused to effect partition

which made him to institute the aforementioned Original

Suit. In fact, in the said suit beside seeking partition and

separate possession of the suit schedule properties he

SLP (C) Nos. 10558-59 of 2024 Page 4 of 30

also sought to set aside a sale deed executed on

13.12.2007 by defendant No.1 in favour of defendant

Nos.2 and 3 (respondent Nos.1 and 2 herein) and a gift

deed dated 27.08.2008 made by defendant No.1 in

favour of defendant Nos.4 and 5 as null and void.

5. Defendant No.1 filed written statement stating,

inter alia, that the suit schedule properties are wrongly

described. While admitting the adoption of the

appellant/plaintiff on 16.07.1994 as also the fact that

subsequently, he came to stay with her, defendant No.1

would state that she became the full and absolute owner

of the suit schedule properties after the death of her

husband Bhavakanna and further that by virtue of

adoption of the appellant/plaintiff she was not divested

off her ownership over the suit schedule properties. She

had also refuted the claims of the appellant/plaintiff that

without his consent she could not have sold the property

covered under sale deed dated 13.12.2007 and that she

had played fraud in creating gift deed dated 27.08.2008

in respect of properties described in para 1B and C of

the plaint, in favour of defendant Nos.4 and 5 viz.,

respondent Nos.3 and 4. Above all, defendant No.1

denied the claim of acquisition of half share of the suit

schedule properties by virtue of his adoption by her and

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thereby becoming the legal heir of her husband Sri

Bhavakanna Shahapurkar.

6. Defendant Nos.2 and 3 jointly filed a separate

written statement, but adopting the contentions raised

by defendant No.1. They claimed that they are in

possession of suit schedule property covered by the sale

deed dated 13.12.2007 from the date of its purchase.

7. Defendant Nos.4 and 5 also jointly filed a separate

written statement, essentially, reiterating the stand of

defendant Nos.1 to 3 regarding the absolute ownership

of defendant No.1 over the suit schedule properties and

especially, stating that defendant No.1 was having

absolute right and title over the property gifted to them

under gift deed dated 27.08.2008 and that since its

execution they became the absolute owners of the same.

8. Defendant No.6 filed a separate written statement

even denying the adoption of the appellant/plaintiff by

defendant No.1. He would further state that based on the

compromise decree in OS N o.266/1982 filed by

defendant No.1 whereunder she consented to give him

half share in each of the suit schedule properties and

after the demise of defendant No.1 he became the only

legal heir of Bhavakanna and defendant No.1 as his sister

Renuka died in her early age itself on 12.05.1990.

SLP (C) Nos. 10558-59 of 2024 Page 6 of 30

9. Based on the rival pleadings the trial Court framed

the following issues and additional issues:-

“ISSUES

1) Whether the plaintiff is entitled for ½

share in the suit schedule property?

2) Whether the plaintiff proves that the sale

deed executed on 13/12/2007 is not at all

binding upon the plaintiff?

3) Whether the defendant No.1 was

competent to sell the suit schedule property

to the defendant No. 2 and 3?

4) What other relief is the plaintiff entitled

to?

5) What order or decree?

Additional issue dtd: 10/02/2012

1] Whether the plaintiff proves that he is the

only legal representative of the deceased

defendant No. 1?

Additional Issues dtd: 20/10/2012.

1) Whether the plaintiff proves that he is the

only legal representatives of deceased

defendant No. 1?

2) Whether the defendants No. 4 and 5 prove

that they are the only legal representatives

of the deceased defendant No. 1?

3) Whether the defendants No. 4 and 5 prove

that they became the absolute owners of the

properties mentioned in para 1B and lC of

SLP (C) Nos. 10558-59 of 2024 Page 7 of 30

the plaint by virtue of the gift deed executed

by deceased defendant No.1 in their favour

on 27/08/2008 and the said gift deed is valid

and so the plaintiff has no right over the said

properties?

Additional issues framed on 29/07/2017:

1) Whether the defendant No. 6 proves that

the plaintiff got executed an adoption deed

dtd: 19/07/1994 fraudulently, by force by

taking undue advantage of the old age of

defendant No.1?

2) Whether the defendant No.6 proves that

the defendant No.2 and 3 got executed a sale

deed dtd: 13/12/2007 with respect to “A”

schedule property from defendant No.1 by

undue influence and coercion?

10. It is to be noted that during the pendency of the suit

the defendant No.1 died.

11. As per judgment dated 31.03.2018 in OS

No.122/2009, the suit was partly decreed and declared

gift deed executed by defendant No.1 dated 27.08.2008

in favour of respondent Nos.3 and 4 (defendant Nos.4

and 5) as null and void and granted the entire suit

schedule B and C properties to the appellant as he being

the sole legal heir of defendant No.1. However, the trial

Court rejected his claim in regard to suit schedule A

SLP (C) Nos. 10558-59 of 2024 Page 8 of 30

property and thereby, upheld the sale deed executed by

defendant No.1 in favour of respondent No.1 and 2 viz.,

defendant Nos.2 and 3. In such circumstances, RFA

No.100247/2018 was filed by the appellant herein and

RFA No.100168/2018 was filed by defendant Nos.4 and 5

wherein the plaintiff is the respondent No. 1 and

defendant Nos.2,3 & 6 were respondent Nos.2 to 4

respectively. On perusing the records and considering

the rival submissions, the High Court formulated the

following points for consideration:-

1) Whether the plaintiff is entitled for half

share in the suit schedule properties.

2) Whether the plaintiff proves that

defendant No.1 is not competent to sell

'A' schedule property in favour of

defendant Nos.2 and 3 under

registered sale deed?

3) Whether plaintiff proves that

defendant No. l had no right to execute

the gift deed in respect of 'B' and 'C'

schedule properties in favour of

defendant Nos.4 and 5 and the gift

deed is not binding on the plaintiff?

4) Whether the plaintiff proves that

dismissal of the suit for the relief of

declaration that registered sale deed

executed by defendant No.1 in favour

of defendant Nos. 2 and 3 is arbitrary

and erroneous?

SLP (C) Nos. 10558-59 of 2024 Page 9 of 30

5) Whether defendant Nos.4 and 5 prove

that judgment and decree passed by

the trial court declaring that registered

gift deed executed by defendant No. l

in favour of defendant Nos.4 and 5 as

null and void, is arbitrary and

erroneous?

6) What order or decree?

12. While considering the first point formulated the

High Court took note of the compromise decree passed

in OS No.266/1982 filed by defendant No.1 which was

followed Ext.D14 and the consequential allotment of

shares in favour of defendant No.1 Paragraph 22 of the

impugned common judgment would reveal that as per

Ext.D14 only 9/32 share in schedule ‘A’ to ‘D’ properties

were allotted to and acquired by the defendant.

Ultimately, the High Court found that as relates to the

properties acquired pursuant to Ext.D14, the defendant

No.1 became its absolute owner.

13. As per the impugned common judgment dated

14.02.2024 the High Court, dismissed RFA

No.100247/2018 filed by the appellant herein and

allowed RFA No.100168/2018 filed by respondent Nos.4

and 5, and the judgment and decree by the trial Court

was set aside. Consequent to the setting aside of the

SLP (C) Nos. 10558-59 of 2024 Page 10 of 30

decree the suit filed by the appellant viz., OS

No.122/2009 was dismissed. In view of the dismissal of

RFA No.100247/2018, the Interlocutory Application

being IA No.1/2018 therein for temporary injunction was

held as not surviving and consequently the same was

also dismissed. It is in the said circumstances that the

appellant herein who was the plaintiff filed the captioned

appeals.

14. In view of the narration of the facts as above, before

considering the rival contentions, we think it apposite to

refer to the relevant provisions of law as well as the law

settled in regard to the questions involved in this matter.

Section 14(1) of the Hindu Succession Act, 1956 (for short

‘the Act’) reads thus:-

“14. Property of a female Hindu to be her

absolute property.―(1) Any property

possessed by a female Hindu, whether acquired

before or after the commencement of this Act,

shall be held by her as full owner thereof and

not as a limited owner.

Explanation.―In this sub -section,

“property” includes both movable and

immovable property acquired by a female

Hindu by inheritance or devise, or at a partition,

or in lieu of maintenance or arrears of

maintenance, or by gift from any person,

whether a relative or not, before, at or after her

marriage, or by her own skill or exertion, or by

SLP (C) Nos. 10558-59 of 2024 Page 11 of 30

purchase or by prescription, or in any other

manner whatsoever, and also any such property

held by her as stridhana immediately before the

commencement of this Act.

(2) Nothing contained in sub-section (1)

shall apply to any property acquired by way of

gift or under a will or any other instrument or

under a decree or order of a civil court or under

an award where the terms of the gift, will or

other instrument or the decree, order or award

prescribe a restricted estate in such property.”

15. Section 13 of the Act reads thus:-

“13. Computation of degrees.―(1) For the

purposes of determining the order of

succession among agnates or cognates,

relationship shall be reckoned from the

intestate to the heir in terms of degrees of ascent

or degrees of descent or both, as the case may

be.

(2) Degrees of ascent and degrees of descent

shall be computed inclusive of the intestate.

(3) Every generation constitutes a degree either

ascending or descending.”

16. We will firstly consider the law relating to adoption

in view of the case of the appellant that he was adopted

by defendant No.1. Though there was an attempt on the

part of the defendants to defy adoption concurrently it

was found that defendant No.1 had adopted the

SLP (C) Nos. 10558-59 of 2024 Page 12 of 30

appellant/the plaintiff as her son. The trial Court and the

High Court found that plaintiff has succeeded in proving

adoption orally and by producing Ext.P1 registered

adoption deed. The Courts have also found that

defendant No.1 in her written statement admitted that

she had taken plaintiff in adoption. In the contextual

situation, it is relevant to refer to the decision in Mst. Deu

and Ors. v. Laxmi Narayan and Ors.

1

, where this Court

held by virtue of Section 16 the Hindu Adoptions and

Maintenance Act, 1956 (for brevity ‘The Act of 1956’),

that wherever any document registered under the law is

produced before the court purporting to record an

adoption made and is signed by the persons mentioned

therein, the court should presume that the adoption has

been made in compliance with the provisions of the said

statute unless and until it is disproved. It was further held

therein in view of Section 16 of the Act of 1956 that it

would be open to the persons who challenge the

registered deed of adoption to disprove the same by

taking independent proceedings. As noticed

hereinbefore in the case on hand the appellant plaintiff

had succeeded in proving the factum of his adoption by

1

(1998) 8 SCC 701

SLP (C) Nos. 10558-59 of 2024 Page 13 of 30

defendant No.1 and in that regard, he had produced and

proved Ext.P1 which is a registered deed of adoption

and above all defendant No.1 herself admitted the

factum of his adoption in her written statement. In such

circumstances, the position is that the appellant/plaintiff

was indisputably adopted by defendant No.1 on

16.07.1994.

17. We have already extracted Sections 14(1) of the

Hindu Succession Act. For a proper consideration of the

questions involved in the case on hand it is only apposite

to refer to Section 12(c) of the Act of 1956. It reads thus:-

“12. Effects of adoption.―An adopted child

shall be deemed to be the child of his or her

adoptive father or 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

severed and replaced by those created by the

adoption in the adoptive family;

(a)…

(b)…

(c) the adopted child shall not divest any

person of any estate which vested in him or her

before the adoption.”

18. Thus, going by proviso (c) to Section 12 of the Act

of 1956, it is clear that an adopted child shall not divest

any person of any estate which vested him or her before

SLP (C) Nos. 10558-59 of 2024 Page 14 of 30

the adoption. We have already taken note of the fact that

the date of adoption was 16.07.1994. In the contextual

situation it is also relevant to refer to the ‘Relation Back

Principle’. The said principle is that adoption by a widow

would relate back to the date of death of her husband,

creating an immediate coparcenary interest in the joint

property, meaning that the adopted child is treated as if

they were born to the deceased husband, thus entitled to

inherit his property. In Kasabai Tukaram Karvar and

Others v. Nivruti (Dead) Through Legal Heirs and

Others

2

, this Court extracted Paragraph 6 of Shripad

Gajanan Suthankar v. Dattaram Kashinath Suthankar

3

,

with agreement thus:-

“10. As far as the doctrine of relation back goes,

we need only notice decisions of this Court

in Govind Hanumantha Rao Desai v. Nagappa

alias Narahari Laxman Rao Deshpande and

Sever, (1972) 1 SCC 515 and Shripad Gajanan

Suthankar v. Dattaram Kashinath

Suthankar, (1974) 2 SCC 156. We may only

further expatiate by referring to paragraphs 6,

7 and 9 of Shripad Gajanan Suthankar (Supra).

6. It is established law that the

adoption by a widow relates back to the

date of the death of the adoptive father,

2

2022 SCC Online 918; 2022 INSC 733

3

(1974) 2 SCC 156; 1974 INSC 43

SLP (C) Nos. 10558-59 of 2024 Page 15 of 30

which, in this case, took place in 1921.

Indeed, the complexity of the present case

arises from the application of this legal

fiction of “relation-back” and the

limitations on the amplitude of that fiction

visa-vis the partition of 1944, in the light of

the rulings of the various High Courts and

of the Judicial Committee of the Privy

Council, and of this Court, the last of which

is Govind v. Nagappa. According to the

appellant, the rights of the adopted son,

armed as he is with the theory of “relation-

back”, have to be effectuated

retroactively, the guidelines wherefor are

available from the decided cases. It is no

doubt true that “when a member of a joint

family governed by Mitakshara law dies

and the widow validly adopts a son to him,

a coparcenary interest in the joint property

is immediately created by the adoption co-

extensive with that which the deceased

coparcener had, and it vests at once in the

adopted son”. (See Mulla on Hindu Law,

13

th

Edn. p.516.)

11. The same author, however, points out that:

“the rights of an adopted son arise

for the first time on his adoption. He may,

by virtue of his rights as adopted son,

divest other persons in whom the

property vested after the death of the

adoptive father, but all lawful alienations

made by previous holder would be

SLP (C) Nos. 10558-59 of 2024 Page 16 of 30

binding on him. His right to impeach

previous alienations would depend upon

the capacity of the holder who made the

alienation as well as on the nature of the

action of alienation. When the holder was

a male, who had unfettered right of

transfer, e.g., the last surviving member

of a joint family, the adopted son could not

impeach the transfer. In case of females

who had restricted rights of transfer even

apart from any adoption, the transfers

would be valid only when they are

supported by legal necessity”. (ibid; pp.

516 – 517; para 507.)

“An adopted son is bound by

alienations made by his adoptive father

prior to the adoption to the same extent as

a natural-born son would be. (ibid; p. 517

: para 508.)

7. It is settled law that the rights of an

adopted son spring into existence only

from the moment of the adoption and all

alienations made by the widow before the

adoption, if they are made for legal

necessity or otherwise lawfully, such as

with the consent of the next reversioners,

are binding on the adopted son.”

19. In fact, the defendants who refuted the claim of the

appellant, including defendant No.1 would rely on

Section 14(1) of ‘the Act’ and Section 12(c) of the Act of

SLP (C) Nos. 10558-59 of 2024 Page 17 of 30

1956, besides the compromise decree in OS No.266 of

1982 to contend that defendant No.1 became the

absolute owner of the suit schedule properties by virtue

of the adoption and the operation of the aforesaid

provisions much earlier to the adoption of the

appellant/plaintiff on 16.07.1994. In fact, it is so

contended by them to drive home the point that since

defendant No.1 became the absolute owner of the suit

schedule property prior to the adoption of the

appellant/plaintiff and the sale deed dated 13.12.2007 in

favour of defendant Nos.2 and 3 (respondent Nos.1 and 2

herein) as also the gift deed dated 27.08.2007 in favour

of defendant No.4 and 5 (respondent Nos.3 and 4

herein), the appellant/plaintiff was bound by such

alienation made by defendant No.1.

20. In view of the position of law referred above and

the factual position obtained in the case on hand the

crucial legal position to be looked into is what is the

effect of the compromise decree passed in OS No.266 of

1982 and whether it would be binding on the appellant.

In this context, it is also relevant to note that indisputably

the adoption of the appellant/plaintiff was on 16.07.1994

and the adoption deed is a registered one which was not

disproved by defendants though it is permissible under

SLP (C) Nos. 10558-59 of 2024 Page 18 of 30

Section 16 of the Act of 1956. Furthermore, it is relevant

to note that it is indisputable that the sale deed in

question was executed only on 13.12.2007 by defendant

No.1 and the gift deed was executed by her only on

27.08.2007. In other words, the sale deed and the gift

deed were executed only subsequent to the adoption of

the appellant by defendant No.1 on 16.07.1994. It is in

this context that the aforementioned question assumes

relevance.

21. As noticed hereinbefore, defendant No.1 filed OS

No.266 of 1982 against her husband Bhavakanna, Smt.

Laxmibai, the second wife of Bhavakanna, Parsuram and

Renuka who are the children of Laxmibai through

Bhavakanna. True that the said suit was compromised

and a decree was passed in terms of the compromise

petition. Defendant No.1 filed Final Decree Proceedings

No.75/1988 and in the said proceedings the parties

entered into compromise and the compromise petition

was marked as Ext.D14 and by virtue of the same

defendant No.1 was allotted 9/32 share in A to D

schedule properties. Indisputably the adoption of the

appellant/plaintiff was subsequent to the compromise

decree and Ext.D14 in terms of which defendant No.1

was allotted the shares mentioned as above. In such

SLP (C) Nos. 10558-59 of 2024 Page 19 of 30

circumstances, the question is whether by virtue of

operation of the provisions of Section 14(1) of the Act and

Section 12(c) of the Act of 1956, the defendant No.1

would become the absolute owner of the property prior

to the adoption of appellant on 16.07.1994.

22. Obviously, in the case on hand, the factum of

adoption of the appellant/the plaintiff by defendant No.1

after the death of adoptive father, on 16.07.1994 is

established by the appellant/the plaintiff and it is

pertinent to note that the same was admitted b y

defendant No.1 as well, in her written statement. In such

circumstances, in view of the ‘Doctrine of Relation Back’

and by applying the law laid down in Sripad Gajanan

Suthankar’s case (supra) relied on with agreement in

Kasabai Tukaram Karvar’s case (supra) the adoption by

defendant No.1, the widow of Bhavakanna Shahpurkar,

would relate back to the date of death of the adoptive

father which is 04.03.1982 but then all lawful alienations

made by defendant No.1 would be binding on the

appellant/plaintiff. As held in Sripad Gajanan

Suthankar’s case (supra) in paragraph 11 his right to

impeach previous alienations would depend upon the

capacity of defendant No.1 who made the alienation as

well as on the nature of the action of alienation.

SLP (C) Nos. 10558-59 of 2024 Page 20 of 30

23. The first among the alienations under challenge in

the case on hand is the one where defendant No.1

effected sale of the properties covered by registered

sale deed dated 13.12.2007 in respect of ‘A’ schedule

property in favour of defendant Nos.2 and 3. There is

concurrency with respect to the said issue between the

trial Court and the High Court. The Courts have held that

defendant No.1 got absolute right to effect the sale of the

property covered thereunder and that the sale was done

in favour of defendant Nos.2 and 3 in accordance with the

law. Admittedly, in regard to the sale, defendant No.1

executed the sale deed dated 13.12.2007 and she was not

having a case that she had not received sale

consideration. By applying the ‘Doctrine of Relation

Back’ and the ratio of decisions in Kasabai Tukaram

Karvar’s case (supra) and Sripad Gajanan Suthankar’s

case (supra) it can only be held that the

appellant/plaintiff is bound by the said alienation. This

is because of the cumulative effect of the compromise

decree in OS No.122 of 2009 followed by Ext.D14 and the

allotment of share based on the same. In this context it is

also relevant to note that the factum of execution of the

sale deed is not disputed by the appellant but his

contention is only that defendant No.1 could not have

SLP (C) Nos. 10558-59 of 2024 Page 21 of 30

sold the property without his consent and knowledge.

Though the alienation was subsequent to his adoption by

virtue of the fact that defendant No.1 got absolute right

and title in regard to the property covered by the said

sale deed dated 13.12.2007 and that a valid sale was

effected following the procedures, the challenge of the

appellant against the said alienation of property by

defendant No.1 in favour of defendant Nos.2 and 3 is not

liable to be interfered with. We have no hesitation to

hold that the concurrent findings of the trial Court and

the High Court in regard to the said sale deed warrant no

interference. In such circumstances, dismissal of RFA

No.100247 of 2018 filed by the appellant/plaintiff

challenging the alienation under the registered sale

deed dated 13.12.2007 is only to be confirmed.

24. The other alienation of property by defendant No.1

which is under challenge is the alienation of ‘B’ and ‘C’

schedule properties by registered gift deed dated

27.08.2008 in favour of defendant Nos.4 and 5. It is to be

noted that the trial Court and the High Court are at issue

in regard to the said alienation. Obviously, the trial

Court held that the gift deed dated 27.08.2008 executed

by defendant No.1 in favour of defendant Nos.4 and 5 is

null and void and is not binding on the plaintiff.

SLP (C) Nos. 10558-59 of 2024 Page 22 of 30

Consequent to such declaration the trial Court found that

the appellant/plaintiff is entitled to entire ‘B’ and ‘C’

schedule properties as he being the sole legal heir of

deceased defendant No.1. Per contra, the High Court

found that since defendant No.1 was the absolute owner

of the said suit schedule properties as well the

appellant/plaintiff got no locus standi to challenge the

registered gift deed executed by defendant No.1 in

favour of defendant Nos.4 and 5. It is the said finding that

resulted in allowing RFA No.100168 of 2018 filed by

defendant Nos.4 and 5. Consequently, the High Court

set aside the judgment and decree passed by the trial

Court to that extent and resultantly dismissed the suit

filed by the appellant/plaintiff.

25. In the light of the ‘Doctrine of Relation Back’ and the

ratio in the decisions in Kasabhai Tukaram Karwar’s

case (supra) and Sripad Gajanan Suthankar’s case

(supra) we have already found that all lawful alienations

made by defendant No.1 will bind the appellant/plaintiff

and his right to impeach previous alienation would

depend upon the capacity of the holder who make the

alienation as well as on the nature of the action of

alienation. The nature of action of alienation is gift and it

is allegedly made in favour of defendant Nos.4 and 5. It

SLP (C) Nos. 10558-59 of 2024 Page 23 of 30

is to be noted that defendant Nos.4 and 5 though got a

case that earlier defendant No.1 executed a Will in

regard to the said properties in their favour they

themselves would admit and plead that subsequently the

properties were given in gift as per registered gift deed

dated 27.08.2008. The very fact that the defendant Nos.4

and 5 themselves relied on the gift deed would go to

show that if at all there was a Will that was revoked. At

any rate, it is a fact that even defendant Nos.4 and 5 did

not rely on the same.

26. Section 122 of the Transfer of Property Act, 1882

(for short, ‘the TP Act’) defines gift as under:-

“122. “Gift” defined.—“Gift” is the transfer of

certain existing moveable or immoveable

property made voluntarily and without

consideration, by one person, called the donor,

to another, called the donee, and accepted by

or on behalf of the donee.

Acceptance when to be made .— Such

acceptance must be made during the lifetime of

the donor and while he is till capable of giving,

If the donee dies before acceptance, the gift is

void.”

27. A perusal of Section 122 of the TP Act would make

it clear about the pre-requisites of a valid gift. Going by

SLP (C) Nos. 10558-59 of 2024 Page 24 of 30

the same, two things are necessary to constitute a valid

gift, namely, (i) an offer and, (ii) its acceptance. A

scanning of the judgment of the trial Court in regard to

the alienation by a gift by the defendant No.1 in favour of

defendant Nos.4 and 5 it is to be noted that several

reasons have been given for holding the same as null

and void. To start with, it is to be noted that in the gift

deed dated 27.08.2008 it is recited thus:-

“WHEREAS, the Donees are natural Grand

Childrens of Donor i.e., (Donor's own

daughter's own childrens), the Donor is full and

absolute owner of the Properties, more fully

described in the Schedule hereunder and

hereinafter referred to as the Schedule

Property', by virtue of Final Court Decree No.

FDP-75/88, dated 02.01.1990 & Exe. Nos. 319/90

R. No.: 1799 dated 05.09.1990. And the said

Schedule mentioned properties are exclusive

properties which are in actual physical

possession and enjoyment of the said Donor.”

28. Going by the afore extracted recital in the deed of

gift, the donees are natural grand-children of donor i.e.,

donor’s own daughter’s own children. But the fact is that

even the defendant witnesses who are related to

defendant Nos.2 and 3 would adm it the fact that

defendant Nos.4 and 5 are not the children of own

SLP (C) Nos. 10558-59 of 2024 Page 25 of 30

daughter of defendant No.1. The adoption deed itself

would go to show that the adoptive mother who is

defendant No.1 was issueless. Thus, when the admitted

position is that defendant No.1 got no children, the

defendant Nos.4 and 5 cannot claim the status that they

are the own children of the own daughter of defendant

No.1. That apart, going by the afore extracted recital, the

schedule mentioned properties in the gift deed viz., the

suit schedule ‘B’ and ‘C’ properties are exclusive

properties in the actual physical possession and

enjoyment of defendant No.1. It is to be noted that the

very case of appellant/plaintiff is that he is in exclusive

possession of the said suit schedule properties. In the

contextual situation, it is to be noted that in Ext.D6(a) gift

deed there is no reference about the delivery of

property by the donor and taking possession of property

by the donee. Defendant No.4 was examined in the suit

as DW-3. During cross-examination he would depose

that he did not know as to who are in possession of

properties comprised in CTS No.667 and CTS

No.4879/67 and 278, he also would say that he is

absolutely unaware as to who is using CTS 667 and who

is residing in CTS No.4879/67, it is to be noted that they

are the properties described as ‘B’ and ‘C’ schedule

SLP (C) Nos. 10558-59 of 2024 Page 26 of 30

properties in the suit and also as properties gifted to

defendant Nos.4 and 5 as per Ext.D6(a) gift deed dated

27.08.2008. It is also relevant to note that while being

cross-examined as DW-3 the fourth defendant would

also depose that when the gift deed was registered the

said properties covered by the same were not in his

possession and he voluntarily stated that it was with

defendant No.1 till her lifetime. It is also evident from his

oral testimony that he would admit that the possession of

the said property was not taken either on the date of

Ext.D6 or even thereafter. It is in the said circumstances

specifically dealt with in detail that the trial Court arrived

at the conclusion that defendant No.1 was not knowing

the contents of Ext.D6(a) gift deed and further that ‘B’ and

‘C’ schedule properties referred to in Ext.D6(a) were not

delivered to the possession of defendant Nos.4 and 5

even on the date of execution of Ext.D6(a) and even at

the time of examination before the Court defendant

Nos.4 was not aware as to who are the persons who are

in possession of ‘B’ and ‘C’ schedule properties. Same

was the case with respect to defendant No.5. Moreover,

the trial Court took note of the fact that the evidence on

record would reveal that defendant No.1 was residing at

Nanawadi at the time of her death along with DW-5. As

SLP (C) Nos. 10558-59 of 2024 Page 27 of 30

noticed hereinbefore when the fact is that the properties

covered by the gift deed are not delivered either at the

time of the alleged execution of the gift deed or at any

later point of time and the fact that the defendant(s) got

no case that at any later point of time that they had

initiated any steps to get possession of the same either

during the lifetime of defendant No.1 or even after her

lifetime, we do not find any reason as to how the trial

Court could be said to have erred in holding that

defendant Nos.4 and 5 could not become absolute

owners of ‘B’ and ‘C’ schedule properties through

Ext.D6(a) gift deed.

29. It is the said finding of the trial Court that was set

aside by the High Court in the first appeal with respect

to the alienation under the gift deed dated 27.08.2008. A

careful scanning of the impugned common judgment of

the High Court would reveal that the sound reasoning of

the trial Court in regard to this issue was interfered with

and set aside without detailed discussion and at the same

time without providing any good and sustainable reason

therefor. It appears that the High Court was carried away

by the fact that the gift deed is a registered one. We have

already taken note of the fact that in order to be valid,

acceptance of the gift is a pre-requisite. When the very

SLP (C) Nos. 10558-59 of 2024 Page 28 of 30

case of one of the donees of the gift viz., the defendant

No.4 that the property was in the possession of the donor

herself till her death itself would reveal that the

properties were not delivered and in other words in the

legal sense there was no acceptance. The fact that

defendant No.4 himself depose before the Court that he

was not aware of the fact as to in whose possession the

gifted properties lie with, would justify the conclusions

arrived at by the trial Court. True that the First Appellate

Court will be having the power to reappreciate the entire

evidence and to substitute any finding of the trial Court

if it is legally required. At the same time, when once it is

found that a sound reasoning given by a trial Court for

returning a finding with respect to a definite issue the

same cannot be likely interfered without giving

appropriate sustainable reasons. The position with

respect to the gift deed is discussed in detail by the trial

Court and when it arrived at the conclusion that the pre-

requisite for making the same valid was absent such a

finding could be reversed only if it is found that the said

finding was based on perverse precision of evidence. In

the case on hand, the discussion as above would reveal

that the pre-requisite to constitute a valid gift is lacking

and the evidence discussed by the trial Court would

SLP (C) Nos. 10558-59 of 2024 Page 29 of 30

support the said finding we do not find any reason for the

Appellate Court to interfere with the same. The

declaration that gift deed dated 27.08.2008 is null and

void is made by the trial Court in the aforesaid

circumstances and it is only as a necessary sequel that

the trial Court held that the appellant/plaintiff is entitled

to entire ‘B’ and ‘C’ schedule properties as the sole legal

heir of deceased defendant No.1. As noted

hereinbefore, DW-1 herself in her written statement

admitted the adoption of the appellant/plaintiff as her

son and the registered adoption deed could fortify the

same. When that be so the finding that the appellant is

entitled to the said properties being the sole legal heir

of deceased defendant No.1 cannot be said to be faulty

as it is the inevitable consequence of application for the

‘Doctrine of Relation Back’ and the ratio of the decisions

in Kasabai Tukaram Karvar’s case (supra) and Sripad

Gajanan Suthankar’s case (supra).

30. In the result the appeal is partly allowed. The

concurrent finding of the courts below that the sale deed

dated 13.12.2007 in favour of defendant Nos.2 and 3 is

valid and that the appellant/plaintiff is not entitled to any

share in ‘A’ schedule property is confirmed and

consequently the appeal against the judgment in RFA

SLP (C) Nos. 10558-59 of 2024 Page 30 of 30

No.100247 of 2018, viz., SLP (C) No.10558 of 2024 is

dismissed.

31. The appeal against the judgment in RFA No.100168

of 2018 against the reversal of the judgment and the

decree of the trial Court pertaining to the alienation of

properties through gift deed dated 27.08.2008 and the

gift deed itself, is allowed and the judgment of the High

Court in RFA No.100168/2018 is quashed and set aside.

Consequently, the judgment and decree of the trial

Court holding the gift deed dated 27.08.2008 as null and

void and the finding that the appellant/plaintiff is entitled

to entire ‘B’ and ‘C’ schedule properties as the sole heir

of deceased defendant No.1 are restored.

32. In the circumstances there will be no order as to

costs.

……………………, J.

(C.T. Ravikumar)

……………………………, J.

(Prashant Kumar Mishra)

New Delhi;

January 02, 2025.