# DINAH AND ORS v. DADDI AND ORS

- **Citation:** [1989] Supp. 2 S.C.R. 144
- **Court:** Supreme Court of India
- **Decided:** 1989-11-10
- **Case number:** Civil Appeal No. 2116 of 1972
- **Bench:** G.L. Oza, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinah-and-ors-v-daddi-and-ors-10365
- **Pages:** 5

## Headnote

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( l)(b) and 49-Document
C creating right in adopted son to immovable property-Divesting mother
of property-Whether requires registration-Unregistered documentAdmissibility 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 relinquished 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 relinquishment 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
I
DINAJI v. DADDI
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.
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. [i47G-H]
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. I 1480 J .
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]

## Text

A
B
DINAH AND ORS.
v.
DADD! AND ORS.
NOVEMBER 10, 1989
[G.L. OZA AND M. FATHIMA BEEVI, JJ.]
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( l)(b) and 49-Document
C creating right in adopted son to immovable property-Divesting mother
of property-Whether requires registration-Unregistered documentAdmissibility 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 relinquished 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 relinquishment 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
I
DINAJI v. DADDI
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.
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. [i47G-H]
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. I 1480 J .
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]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2116
of 1972.
From the Judgment and Order dated 1.2.1971 of the Madhya
A
B
c
D
E
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.
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.
G
"
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 including agricultural lands and houses.
B
c
D
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 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 admitted it in evidence in proof of adoption. This document, in addition to
recital of the factum of adoption in presence of Pancha}'.at 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 he entitled (Hakdar) to the whole property including movable and
immovable 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 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 proE
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 Judgment of the lower appellate couri dismissing the suit of t)le plaintiffappellant. 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 covenant 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
1to a deed of
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,
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 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
family:
Provided that:
A
B
c
(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 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
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).
B
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 vi~os or ,by
will.
•
C
This Section enacts that when the parties intend to limit the
D
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.
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. 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
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.