The High Court dismissed a writ petition challenging the trial court's order allowing a defendant to transpose as plaintiff after the sole plaintiff died. The court held the application was valid under Section 151 CPC.
Writ petition dismissed; impugned order allowing transposition as plaintiff affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
wp.12529-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.12529 OF 2018
Hausaji s/o. Baliram Jadhav, Age : 53 years, Occ. Agri., r/o. Karla, Tq. Umri, Dist. Nanded ..Petitioner
Vs.
Mr. G.R.Syed, Advocate for petitioner Mr. A.A.Mukhedkar, Advocate for respondent no.4
CORAM : R.G. AVACHAT, J.
RESERVED ON : SEPTEMBER 19, 2019 PRONOUNCED ON : OCTOBER 10, 2019
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ORDER :-
The challenge in this Writ Petition is to the order dated 26.09.2018 passed by learned Civil Judge, Junior Division, Umri, allowing application (Exh.63) in a suit, being Regular Civil Suit No.51 of 2013, moved by respondent no.4 herein, asking for transposing him as a plaintiff to the said suit. Original defendant no.1 has, therefore, preferred the present Writ Petition.
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Harnabai was his wife. She pre-deceased Bariram. Baliram too passed away. The original plaintiff - Saraswatibai, defendant no.1 – Hausaji and defendant no.2 – Govind are children of deceased – Baliram and Harnabai. Respondent no.3 (original defendant no.3) is son of respondent no.2 – Govind. Respondent no.4 – Dattram had moved application (Exh.63) for impleading him as defendant in the suit. The trial Court after hearing the parties to the suit, allowed Dattaram’s application and impleaded him as defendant no.4.
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share in the agricultural land. She passed away, pending the suit. Since she did not have a child, her husband was not brought on record as her legal representative to continue with the suit. Pending the suit, respondent no.4 applied for his impleadment as a defendant to the suit. His application was allowed. He appears to have claimed share in the suit land and therefore, urged for partition and separate possession thereof. Admittedly, respondent no.4 is the real brother of the deceased – plaintiff and defendant nos.1 and 2. He is said to have been given in adoption to one Sambhaji Jadhav. He is, therefore, said to have no right, title and interest in the suit land. On his adoption, his ties with family of his his natural parents would cease. He would not inherit any property of his natural parents post his adoption.
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Section 12. Effect 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: Provided that—
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 obligations, 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.
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defendant no.4 would have share therein. Making any observation in this regard may amount to expressing a view about merits of the suit. In case of an ancestral property, a son gets right by birth.
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defendant as plaintiff in case of a suit being withdrawn or abandoned.
Section 151 of the Code is, however, there to pass an order regarding transposition in the facts and circumstance of a case.
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The Writ Petition, therefore, fails. The same is
dismissed.
[ R.G. AVACHAT, J. ]
kbp
3 issues framed by the court
Whether Order XXI Rule 1-A of CPC applies to transposing a defendant as plaintiff upon the death of the sole plaintiff.
Whether a person given in adoption has right, title, and interest in ancestral property left by natural parents.
Whether setting aside the trial court's order would cause multiplicity of proceedings or delay.
3 provisions across 1 enactments
Hausaji s/o. Baliram Jadhav
Saraswatibai s/o. Gangadharrao Sonawne
Govind s/o. Baliram Jadhav
Balaji s/o. Govind Jadhav
Dattaram s/o. Sambhaji Jadhav
R.G. AVACHAT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
