Bombay High Court: M.G. Giratkar, J. dismissed a second appeal filed against the judgments of the lower courts wherein the partition suit brought by the appellant was dismissed.

One Maghadeo, ho was the biological father of the appellant, had given the appellant in adoption to his real brother Fakira, who was childless. The appellant had now brought a partition suit, claiming his share in the property of Mahadeo. The Civil Judge dismissed the appellant’s suit holding that he was not entitled to claim partition in the property of his real father. The appeal filed before the District Judge was also dismissed. Hence, the appellant filed the instant second appeal.

R.L. Khapre, Advocate for the appellant, contended that the appellant had never been given in the adoption and, therefore, he had a right in the property left by his real father. Mahadeo, Per contra, S.R. Deshpande, Advocate representing the respondent, opposed the instant appeal.

On perusal of the record, the High Court found that the factum of the appellant having been given in adoption by Mahadeo to Fakira had been duly proved by the documents as well as his own admissions. Also, the testimony of the priest in whose presence the process of adoption was completed, was also found reliable and creditworthy. It was held: “The admission of the 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 the plaintiff partition from the defendants. The silence for a long time on the part of the 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.”

Incidentally, it was submitted on behalf of the appellant that the issue in respect of adoption was not framed by the trial court. Therefore, there was no opportunity for the plaintiff to adduce proper evidence.

On this aspect, the Court relied on Satyadhyantirtha Swami v. Raghunath Daji Patil, 1925 SCC OnLine Bom 107, wherein it was held: “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 instant case, it was held that Issue 1 framed by the trial court included the issue of adoption and it could not be said that the appellant had no opportunity to adduce evidence on the said issue.

In such view of the matter, the appeal was held to be without merits and was, thus, dismissed. [Pandhari v. Vithoba, 2019 SCC OnLine Bom 3006, decided on 17-10-2019]

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