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Bandhu Prasad vs Ramkumar 49 Wpc/1657/2016 … on 17 May, 2019

1
WP No. 1115 of 1999 SA No. 555 of 2003

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WP No. 1115 of 1999

Order Reserved On : 04/12/2018
Order Passed On : 17/05/2019

 Ramkumar Tiwari S/o Bhagwat Prasad Tiwari Aged About 64
Years R/o Chandanu Tahsil Bemetara, District Durg, Chhattisgarh.

­­­­ Petitioner

Versus

1. Board Of Revenue Madhya Pradesh Gwalior Madhya Pradesh

2. Additional Commissioner Raipur, Division Raipur, Chhattisgarh.

3. Sub Divisional Officer Bemetara District Durg, Chhattisgarh.

4. Naib Tahsildar Bemetara, District Durg, Chhattisgarh.

5. Pachkaur Since (Dead) Through LRs
5.1 ­ (A) Smt. Rukmani Bai Widow Of Pachkaur
5.2 ­ (B) Badri Prasad S/o Pachkaur
5.3 ­ (C) Kaushal Kumar S/o Pachkaur
5.4 ­ (D) Vyas Narayan (Since Dead Through Lrs.)

(i) Smt. Sarita, widow of Vyas Narayan;
(ii) Nilay Kumar, son of Vyas Narayan;
(iii) Gaurav Kumar, son of Vyas Narayan;
(iv) Ku. Neelam, Daughter of Vyas Narayan;
(v) Ku. Sujata, Daughter of Vyas Narayan;

All resident of village Chandanu, Tehsil Bemetara, District Durg
(CG)

5.5 ­ (E). Smt. Ahilya Sharma W/o Neel Kamal Sharma
5.6 ­ (F) Nandni Sharma W/o Goverdhan Prasad Sharma

Both resident of village Chandanu, Tehsil Bemetara, District Durg (CG)

­­­­ Respondent
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WP No. 1115 of 1999 SA No. 555 of 2003

SA No. 555 of 2003

1. Bandhu Prasad S/o Pachkod Prasad Pandey Aged About 42 Years
R/o Village Chandnu, Tehsil Bemetara, District­ Durg,
Chhattisgarh.

2. Badri Prasad S/o Pachkod Prasad Pandey Aged About 45 Years
R/o Village Chandnu, Tehsil Bemetara, District­ Durg,
Chhattisgarh.

3. Smt. Savita Pandey W/o Late Vyasnarayan Aged About 38 Years
R/o Village Chandnu, Tehsil Bemetara, District­ Durg,
Chhattisgarh.

4. Nilay Pandey S/o Vyas Narayan Aged About 22 Years R/o Village
Chandnu, Tehsil Bemetara, District­ Durg, Chhattisgarh.

5. Kumari Neeni Pandey D/o Vyas Narayan Aged About 20 Years
R/o Village Chandnu, Tehsil Bemetara, District­ Durg,
Chhattisgarh.

6. Golu Pandey S/o Vyas Narayan Aged About 7 Years Minor
Through Their Natural Guardian Mother, Smt. Savita Pandey,
Wd/o Late Vyas Narayan Pandey R/o Chandnu Tehsil Bemetara,
Presently B.T.I. Training Centre, Bemetara.

7. Kumari Poonam D/o Vyas Narayan Aged About 5 Years Minor
Through Their Natural Guardian Mother, Smt. Savita Pandey,
Wd/o Late Vyas Narayan Pandey R/o Chandnu Tehsil Bemetara,
Presently B.T.I. Training Centre, Bemetara.

8. Kumari Sujata D/o Vyas Narayan Aged About 13 Years Minor
Through Their Natural Guardian Mother, Smt. Savita Pandey,
Wd/o Late Vyas Narayan Pandey R/o Chandnu Tehsil Bemetara,
Presently B.T.I. Training Centre, Bemetara.

9. Smt. Sunita D/o Pachkod Prasad Pandey Aged About 30 Years
R/o Village Chandnu, Tehsil Bemetara, District­ Durg,
Chhattisgarh.

10. Smt. Babli @ Nandni D/o Pachkod Prasad Pandey Aged About 35
Years R/o Village Chandnu, Tehsil Bemetara, District­ Durg, (CG)

­­­­ Appellants

Versus
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WP No. 1115 of 1999 SA No. 555 of 2003

1. Ramkumar S/o Bhagwat Prasad Tiwari Aged About 42 Years R/o
Naoghat, Tehsil Bemetara, District­ Durg, Chhattisgarh.

2. Collector Durg, District­ Durg, Chhattisgarh.

­­­­ Respondent

For Petitioner in WP : Shri Dinesh Tiwari, Advocate.
For Respondents 2 to 4 : Shri Anand Dadriya, GA.
For Appellant in SA and Res No.5 in WP : Shri Awadh Tripathi, Adv.
For Respondent No.1 in SA : Shri Dinesh Tiwari, Advocate.

Hon’ble Shri Prashant Kumar Mishra, J

C A V Order

1. Parties to the proceeding in both the matters i.e. WP No. 1115 of

1999 and SA No. 555 of 2003 are contesting right, title and

interest over same piece of land, therefore, both the matters

having been heard analogously are being decided by this common

order.

2. In WP No. 1115 of 1999 preferred by Ram Kumar Tiwari,

challenge is to the order (Annexure­P/13) passed by the Board of

Revenue on 14.1.1999 directing mutation of names of all the

legal heirs of late Hirondi Bai. Thus, this proceeding pertains to

the contest over claim for mutation of their names in the revenue

Records.

3. The other matter i.e. SA No.555/2003 has been preferred by
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WP No. 1115 of 1999 SA No. 555 of 2003

Bandhu Prasad and others (including some parties in whose

favour the Board of Revenue has passed mutation order)

challenging the judgment and decree passed by the 3 rd ADJ (FTC),

Bemetara, whereby the appeal preferred by Ram Kumar Tiwari

was allowed and it was declared that the order dated 19.8.1976

passed by the competent authority under the Chhattisgarh Ceiling

on Agricultural Holdings Act, 1960 (henceforth ‘the Ceiling Act’)

in Case No.1324­A/91(B)(3)/74­75 is illegal and ineffective for

the reason that the said order has been passed without

impleading Ram Kumar Tiwari and examining his rights, title and

interest over the property.

4. Facts

necessary for disposal of the matters are that Hirondi Bai @

Kunjan Bai, widow of Dau Ram was recorded Bhoomiswami of

lands ad measuring 47.33 acres situate at Moja Chandan, Tehsil

Bemetara, District Durg (now District Bemetara). Hirondi Bai

died at village Chandan on 22.11.1979. One Pachkod (since

deceased) represented by his legal heirs moved an application for

mutation on 12.12.1979 in the Court of Naib Tehsildar, Bemetara

claiming himself to be adopted son of Hirondi Bai and her

husband Dau Ram. He claimed that he being the sole legal heir

inherited estate of his adopted mother Hirondi Bai, the original

Bhoomiswami.

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WP No. 1115 of 1999 SA No. 555 of 2003

5. Ram Kumar Tiwari, the petitioner in the writ petition, raised an

objection to the application made by Pachkod claiming under the

registered Will dated 14.2.1979 duly executed in his favour by

Hirondi Bai. The Naib Tehsildar, Bemetara passed an order on

17.6.1980 directing recording of Panchkol’s name in the revenue

papers, recognizing him to be an adopted son and at the same

time holding that the registered Will in favour of Ram Kumar

Tiwari is suspicious. On appeal preferred by Ram Kumar Tiwari,

the Sub Divisional Officer (Revenue), Bemetara passed an order

dated 17.11.1980 to set aside the order passed by the Naib

Tehsildar, Bemetara on 17.6.1980. The Sub Divisional Officer

(Revenue) upheld the WILL in favour of Ram Kumar Tiwari and

directed recording of his name in the revenue records. Pachkod

preferred an appeal before the Commissioner, Durg Division, who

by its order dated 24.8.1981 set aside both the orders of Naib

Tehsildar as well as Sub Divisional Officer (Revenue) and directed

that no­one be recorded in the revenue record till adjudication of

title by the civil Court. Both the parties namely, Pachkod and

Ram Kumar Tiwari preferred separate revision application before

the Board of Revenue, who by its common order dated 17.6.1982

set aside the order passed by the Commissioner and remitted the

matter for decision afresh in accordance with law.
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WP No. 1115 of 1999 SA No. 555 of 2003

6. In the meanwhile, the competent authority under the Ceiling Act

passed an order on 6.1.1976 declaring that the original holder

Hirondi Bai holds 17.33 acres as surplus land. The competent

authority also found that Pachkod is not an adopted son of

Hirondi Bai. A draft statement pursuant to the competent

authority’s order dated 6.1.1976 was served upon the erstwhile

Bhoomiswami Hirondi Bai inviting objections, which were

eventually rejected on 19.8.1976 and a final statement under

Section 11(6) of the Ceiling Act was passed on 19.8.1976 holding

that Hirondi Bai holds 17.33 acres of surplus land.

7. Challenging the order passed by the competent authority,

Pachkod instituted a civil suit No.24­A/1977 in the Court of Civil

Judge, Class­2, Bemetara, re­numbered as Civil Suit No.197­A/82

on transfer to the Court of Civil Judge, Class­I, Bemetara,

claiming declaration that the draft statement order rejecting

Hirondi Bai’s objection and final statement of the Ceiling

Authority be declared nullity and injunction be issued restraining

the State from interfering with his possession. In the said suit,

Hirondi Bai was joined as defendant No.2, however, she died

during the pendency of the suit, hence her name was deleted.

Ram Kumar Tiwari was also joined in the suit as one of the

defendants. By a judgment dated 15.3.1984, rendered by the
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WP No. 1115 of 1999 SA No. 555 of 2003

Civil Judge, Class­I, Bemetara in Civil Suit No.197­A/82,

Pachkod’s claim was decreed, inter alia, holding that he was an

adopted son of Hirondi Bai, therefore, he was entitled to hold the

land as provided under Section 7 of the Ceiling Act and on such

computation, there was no surplus land of Hirondi Bai or her son

Pachkod. Consequently, the plaintiff Pachkod’s title was declared

and injunction was issued against the State for not interfering in

his possession. Challenging the judgment and decree passed by

the Civil Judge, Class­I, Bemetara, State of Chhattisgarh as well as

Ram Kumar Tiwari preferred two separate civil appeals in which

judgment was rendered by the 3rd ADJ (FTC) Bemetara on

30.6.2003, which is the subject matter of challenge in the Second

Appeal No.555/99.

8. During the pendency of the civil suit, the matter was not taken up

by the Commissioner to whom the Board of Revenue had remitted

the matter for re­consideration of the respective claims of the

parties for mutation of their names. When the matter was taken

up by the Commissioner on 20.12.1985, the judgment rendered

by the civil Court on 15th March, 1984 has already been delivered,

therefore, the parties made a statement that no further

proceeding is now necessary. Accepting the statement, the

Commissioner vide its order dated 20.12.1985 filed the
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WP No. 1115 of 1999 SA No. 555 of 2003

proceeding. Thereafter, Ram Kumar Tiwari, moved an

application on 15.1.1990 for mutation of his name on the ground

that the earlier order of Sub Divisional Officer (Revenue) in his

favour has attained finality. The Tehsildar took cognizance of the

application and issued notice to Pachkod whereupon Pachkod

appeared and questioned the legality of the proceeding initiated

upon Ram Kumar Tiwari’s application and prayed for closure of

the proceeding. Pachkod’s objection was rejected on 25.7.1992

holding that the Sub Divisional Officer (Revenue)’s earlier order

has attained finality, except the land ad measuring 17.33 acres

which was earlier declared surplus but has been set aside by the

civil Court in its judgment dated 15.3.1984. In revision

application preferred by Pachkod before the Board of Revenue, it

was held that the civil Court’s judgment in his favour is decisive of

the rights, inter se, between the parties, therefore, the name of

Pachkod be recorded in the revenue records.

9. Since any decision in the civil suit between the parties would have

supremacy over the order passed by the Board of Revenue in

mutation proceeding, I shall first take up SA No. 555 of 2003 for

decision. In the suit preferred by Pachkod, he claimed that he

was closely related to Hirondi Bai as her husband Dau Ram’s

nephew. However, he was adopted by Dau Ram and Hirondi Bai
9
WP No. 1115 of 1999 SA No. 555 of 2003

about 50 years ago (from 26th July, 1977 when the suit was filed).

He claimed that after the death of Dau Ram, the plaintiff along

with Dau Ram’s two widow namely, Mst. Ramwati and Mst.

Hirondi Bai succeeded his estate. However, out of respect, the

plaintiff did not insist for partition of the property left behind by

Dau Ram albeit the plaintiff had half interest in the suit lands,

described in Schedule A B appended to the plaint. It is pleaded

that Hirondi Bai accepted the plaintiff as her adopted son before

the ceiling authorities, but still the competent authority did not

accept the plaintiff as Hirondi Bai’s adopted son and declared that

she holds 17.33 acres surplus land. The plaintiff claimed that

competent authority under the Agricultural Ceiling Act did not

make proper enquiry and fails to exercise the jurisdiction,

therefore, the final order dated 19.8.1976 of the competent

authority is void and does not affect the plaintiff’s right, title and

interest in the suit land. The plaintiff claimed reliefs that the final

order of the competent authority under the Agricultural Ceiling

Act passed on 19.8.1976 is not binding upon him, as the same is

void, as also for issuance of permanent injunction restraining the

defendant No.1/State from interfering in his possession.

10. Hirondi Bai was joined as defendant No.2 in the suit whereas

after the death of Hirondi Bai, Ram Kumar Tiwari was
10
WP No. 1115 of 1999 SA No. 555 of 2003

renumbered as defendant No.2 in place of Hirondi Bai. Hirondi

Bai had herself filed her written statement before the trial Court

on 24.9.1979 denying that the plaintiff was adopted by Dau Ram

and herself. She also denied that she had gifted any part of the

suit land to the plaintiff and further that on much prior date, she

had gifted 16.50 acres of land in favour of defendant No.3 Ram

Kumar Tiwari but since his name was not mutated in the revenue

records, excess land was found by the competent authority.

11. In his written statement before the trial Court, the original

defendant No.3 subsequently re­numbered as defendant No.2,

Ram Kumar Tiwari categorically stated that plaintiff Pachkod

Prasad being Bhanja of Dau Ram, he could not have been adopted

by Pachkod and Hirondi Bai. He also denied that any ceremony

for taking him on adoption was ever undertaken or held by

Pachkod and Hirondi Bai. He states that about 15 acres of land

was gifted to him by Dau Ram’s two widows after the death of

Dau Ram. He denied that any property was ever gifted by

Hirondi Bai to the plaintiff. Defendant No.3 also made a prayer in

the form of counter claim by praying in his written statement that

the final order passed in the ceiling proceeding be set aside and

declared to be not binding on defendant No.3.

12. In course of trial, the plaintiff filed copy of the gift deed executed
11
WP No. 1115 of 1999 SA No. 555 of 2003

by Hirondi Bai in his favour on 17.12.1974 as Ex.­P/1 gifting

12.96 acres of land at village Chandanu. The plaintiff has also

filed Ex.­P/2 which is the sale deed executed by Hirondi Bai in

favour of one Babulal on 15.7.1961 for 1 acre of land.

13. On the other hand, the defendant has filed the document (Ex.­

D/1) which has been proved by DW­1 Dhruwnarayan, a teacher

of the Primary School, Simga, District Raipur stating that in Ex.­

D/1, which is the copy of the school register of the year 1931,

Pachkod is shown to be son of Ramdayal Brahmin, his date of

birth being 1.4.1940. This document, according to the defendant,

proves that Pachkod was never mentioning his adoptive father’s

name although he claims to have been adopted by Dau Ram at

the age of 5 years. Ex.­D/2 is the sale deed executed by Hirondi

Bai in favour of Dallu.

14. In another document filed by the defendant vide Ex.­D/4, Hirondi

Bai has executed the gift deed in favour of plaintiff Pachkod on

17.12.1974. The document being titled as ” cD’kh’k dk eulq[k ukek ”

(Bakshish Ka Mansukhnama). In this document, she states that

she, her Saut Ramwati or their husband Dau Ram has never

adopted the plaintiff Pachkod Prasad and that Pachkod has

cheated on her by obtaining a gift deed on 17.12.1974. This

document titled as “cD’kh’k dk eulq[k ukek” (Bakshish Ka
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WP No. 1115 of 1999 SA No. 555 of 2003

Mansukhnama) to mean cancellation of gift deed was executed on

12.10.1979. Ex.­D/5 is another document executed on

24.12.1947 in which Hirondi Bai has gifted certain share of her

property to Ram Kumar Tiwari. On the basis of this gift deed,

Ram Kumar Tiwari moved mutation application which was

initially rejected by the Tehsildar, however, the appellate

authority, Shri B.M. Neolekar, EAC Durg allowed Ram Kumar

Tiwari’s appeal by order dated 23.7.1948, the certified copy of

order being Ex.­D/6, holding that Ram Kumar Tiwari be recorded

as Proprietor of ­­/­­/6 pies share out of ­­/7/6 pies share held by

Mst. Hirondi Bai.

15. Now considering the oral evidence, Pachkod (PW­4) would state

that Dau Ram and Hirondi adopted him when he was 5 years old.

He would not speak about any such custom under which adoption

is permissible merely by putting him on the lap of adoptive father.

In para­6 of his examination­in­chief, this witness would state that

at the time of death Hirondi Bai was not suffering from any illness

which would mean that written statement filed by Hirondi Bai

denying the fact of adoption of plaintiff Pachkod, was submitted

by her out of her own free will, in a fit state of mind. Pachkod

would further admit the fact of he having studied at Primary

School, Simga till class 4th and that he was admitted in the said
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WP No. 1115 of 1999 SA No. 555 of 2003

school by Dau Ram. Thus, the fact of Dau Ram having adopted

Pachkod when he was 5 years of age stands falsified by the

plaintiff’s statement because if Dau Ram had admitted him in the

school, there was no reason for Dau Ram having already adopted

the plaintiff to inform the school authorities that Pachkod’s father

is Ram Dayal. Nothing prevented Dau Ram to have stated to the

school authorities that he is the adoptive father of Pachkod. This

witness would further name the villagers who were present at the

time of alleged adoption, but none of them have been examined

by the plaintiff in support of his case. It is important to bear in

mind that the plaintiff has not filed any document like school

register, mark sheet or certificates or voter list etc. in which his

father’s name is mentioned as Dau Ram.

16. The plaintiff’s witness Keshav Prasad (PW­5) admits that plaintiff

Pachkod is the Bhanja of Dau Ram. This witness was aged about

80 years on the date of his examination on 24.2.1984. According

to him, adoption took place about 15­16 years back. This is

contrary to what the plaintiff himself speaks that he was adopted

at the age of 5 years. When the plaintiff was examined in

February, 1984, he stated his age to be 57 years. Therefore, if he

was adopted at the age of 5 years, his adoption took place about

52 years back and not 15­16 years, as PW­5 would state.
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WP No. 1115 of 1999 SA No. 555 of 2003

Considering from another angle, if PW­5 is to be believed, at the

time of adoption, Pachkod was more than 15 years of age, which

is not permissible under the provisions contained in Section 10

(iv) of the Hindu Adoptions and SectionMaintenance Act, 1956

(henceforth ‘the Act of 1956’). Under the said provision, a person

being more than 15 years of age is not capable of being taken in

adoption.

17. It is admitted position that as per the evidence available in the

record, Hirondi Bai was aunt (Badi Maa, being the wife of elder

brother of Ram Kumar Tiwari) of Ram Kumar Tiwari. Statement

to this effect by DW­4 (of defendant No.2) has not been

challenged in his cross­examination. This witness would further

state that in the gift deed which has been found proved by the

document (Ex.­D/6), Hirondi Bai has referred him as her legal

heir. Thus it is found proved that Ram Kumar Tiwari is the legal

heir of Hirondi Bai.

18. In the backdrop of evidence available on record, as discussed in

the preceding paragraphs, the finding recorded by the first

Appellate Court that plaintiff Pachkod was not adopted or rather

he could not have been adopted under the then prevailing law

does not suffer from any infirmity. It is established from the

plaintiff’s own pleading and evidence that the adoption has taken
15
WP No. 1115 of 1999 SA No. 555 of 2003

place before coming into force of the Act of 1956. Therefore, as

per the then prevailing Hindu Law, the plaintiff who happens to

be Bhanja of Dau Ram could not have been adopted.

19. In the matter of Tilokchand Babulal Mahajan Vs. Bhagirath

Puna and Another {1979 MPLJ 375}, the High Court of Madhya

Pradesh has held thus in paras­8, 9 10:­

“8. As regards the invalidity of the adoption
learned counsel for the appellant submitted that
the rule, that there can be no valid adoption
unless a legal marriage is possible between the
person for whom the adoption is made and the
mother of the boy who is adopted in her maiden
state applies only to daughter’s son, sister’s son
and mother’s sister’s son and that the rule cannot
be extended to other relations. In support of this
submission Shri Mahajan placed reliance upon the
decisions reported in SectionShripad Dattatraya Kamat
v. Vithal Vasudevsmet Parker and others {AIR
1925 Bom. 399.} and SectionAbhiraj Kuer v. Debendra
Singh {AIR 1962 SC 351} and SectionGoswami Shree
Vallabhalalji v. Goswamini Shree Mahalaxmi
Bahuji Maharaj and another {AIR 1962 SC 356}.
The decision in SectionShripad Dattatraya Kamat v. Vithal
Vasudevsmet Parker and others (supra) no doubt
supports the appellant in which it has been held
that adoption of a brother is not invalid. However,
in that case reliance was placed upon Jai Singh
Pal Singh v. Bijai Pal Singh {ILR 27 All 417},
SectionRamkrishna Gopal Joshi v. Chimnaji
Vyankatesh {21 Indian Cases 34}, Puttulal and
others v. Parbati Kunwar and another {42
Indian Appeals 155}, Yamnaya v. Laxman
Bhimrao {ILR 36 Bom. 533}, SectionGajanan Balkrishna
v. Kashinath Narayan {ILR 39 Bom. 410} and
SectionMallappa Parappa v. Gangava {ILR 43 Bom.

209}, but in none of these cases the adoption of a
brother was involved. In Jai Singh Pal Singh v.
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WP No. 1115 of 1999 SA No. 555 of 2003

Bijai Pal Singh (supra) the adoption was of
widow’s brother’s grand son; in SectionRamkrishna Gopal
Joshi v. Chimnaji Vyankatesh (supra) the adoption
was of father’s sister’s son, in Puttulal and others
v. Parbati Kunwar and another, the adoption was
of brother’s son, in Yamnaya v. Laxman Bhimrao
the adoption was of mother’s brother’s son, in
SectionGajanan Balkrishna v. Kashinath Narayan the
adoption was of the half brother and in Mallappa
Parappa Vs. Gangaya the adoption was of father’s
first cousin. It is thus clear that in none of the
cases on which reliance was placed by the Bombay
High Court in holding the validity of adoption of a
brother in Shripad Dattatraya Kamat v.

Vasudevsmet Parker and another (supra) the
adoption of a brother was involved. I am unable to
persuade myself to agree with the view taken in
SectionShripad Dattatraya Kamat v. Vasudevsmet Parker
and another. It is difficult to appreciate that if the
prohibitory rule applies to mother’s sister’s son
how it will not apply to a brother who is mother’s
son. Mother’s son (brother) is nearer in
relationship to mother’s sister’s son.

9. Mayne in his treatise of Hindu Law and Usage
(eleventh edition) in para 175 has discussed the
law as follows:

” There is another rule that no one can be
adopted whose mother in her maiden state the
adopter could not have legally married”.

After discussing the controversy about this rule at
the end of the para he has observed as follows:

” SectionIn Raghavendra Rao v. Jayarama Rao the
Court treated it as the settled law, except where
there is usage to the contrary, that the natural
mother of the boy to be adopted, should be a
person who, in her maiden state, might lawfully
have been married to the man for whom the
adoption is made. A judgment of the Judicial
Committee reversing a Full Bench of the Allahabad
High Court has finally established the invalidity of
adoptions contravening this rule in all cases to
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WP No. 1115 of 1999 SA No. 555 of 2003

which the general Hindu Law applies in the
absence of a custom to the contrary. On the same
ground, it is unlawful to adopt a brother, a step­
brother or an uncle, whether paternal or
maternal.”

10. The rule that there can be no legal adoption
unless a legal marriage is possible between the
person for whom the adoption is made and the
mother of the boy who is adopted in her maiden
state, is stated to have been accepted by almost all
the High Courts except the Bombay High Court in
Abhiraj Kuer Vs. Debendra Singh (supra). Their
Lordships of the Supreme Court have assumed the
correctness of this rule in the above case but held
the adoption valid on the ground that a marriage
with wife’s sister’s daughter was not invalid. Now
it cannot be questioned that a marriage between
Babulal and his mother whose son Tilokchand is
said to have been adopted for him is impossible.
Such a marriage is unthinkable. In my opinion a
brother would fall within the purview of the said
rule and adoption of a brother in the absence of a
custom to the contrary is invalid. The custom was
pleaded but the lower Court on appreciation of
evidence has found that no such custom has been
established. I have gone through the evidence
about the custom alleged by the appellant. In my
opinion the finding of the learned Judge that the
alleged custom has not been established is
unassailable.”

20. In the matter of Damodar Lal Vs. Lalli Lal and Others {AIR

1985 Rajasthan 55}, the Rajasthan High Court held thus at para­

10:­

“10. In Hindu Law by Mulla, Fifteenth Edition,
1982 by Sunderlal T. Dasai, Part III relating to
persons who may be lawfully taken in adoption,
Sec.480, deals with “who may be adopted”. One
of the rules stated is that he must not be a boy
whose mother the adopting father could not have
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WP No. 1115 of 1999 SA No. 555 of 2003

legally married; but this rule had been restricted
in many recent cases to the daughter’s son, sister’
son, and mother’s sister’s son. This prohibition,
however, does not apply to Shudras. Even as to
the three upper classes, it has been held that an
adoption though prohibited under this rule, may
be valid, if sanctioned by custom. At page 598
under the heading “Relationship of adoptive father
to natural mother”, the aforesaid rule is dealt with
as under:­

“The rule laid down in sub­s. (3) refers to the
relationship of the parties prior to marriage. It is
founded upon the fiction “that the adopting father
has begotten the boy upon his natural mother,
therefore, it is necessary that she should be a
person who might lawfully have been his wife.”
For this reason a man cannot adopt his daughter’s
son, or his sister’s son, or his mother’s sister’s son
for he cannot marry his daughter, his sister, or his
mother’s sister; such an adoption cannot be
validated by the application of the doctrine of
factum valet. If the prohibition referred to above
were to be interpreted literally, there would be
many other relations incapable of being adopted.
But this prohibition has been confined in recent
cases to the specific cases of the daughter’s son,
sister’s son, and mother’s sister’s son, and it has
been held that it does not extend to other
relations.”

21. In view of the above settled legal position, the plaintiff was not

capable of being adopted by Dau Ram and Hirondi Bai. Moreover,

the plaintiff’s adoptive mother Hirondi Bai has herself denied the

fact of adoption in her written statement, therefore, there could

not be any better proof of the fact that the plaintiff was not

adopted by Hirondi Bai. In addition to this evidence, the first

Appellate Court has rightly referred to the fact that in his
19
WP No. 1115 of 1999 SA No. 555 of 2003

registered address filed at the time of filing of the suit, the

plaintiff has himself described him as son of Ram Dayal Brahmin.

It is also to be seen that the plaintiff would never said that after

adoption his relationship with his natural parents and family was

completely severed and he has not succeeded any property from

his natural parents. Neither the name of Pachkod was ever

recorded in the revenue record of the land belonging to Dau Ram,

which could have been natural consequence after the demise of

Dau Ram. The first substantial question of law as to whether

the lower appellate Court was not justified in reversing the

finding that late Pachkod was adopted son of Dau Ram is

answered by holding that the first Appellate Court’s finding is in

accordance with law and that Pachkod was not the adopted son of

Dau Ram.

22. The second substantial question of law framed in this Second

Appeal is whether the lower appellate Court was not justified in

holding that Ram Kumar Tiwari gets title in the land by virtue of

gift deed dated 24.12.1947 as execution of same was not duly

proved in accordance with law? I have already considered the

effect of Ex.­D/5 recognizing which Shri B.M. Naolekar, EAC, with

Revenue Appellate powers in Durg District has allowed Ram

Kumar Tiwari’s name to be recorded in the revenue records on the
20
WP No. 1115 of 1999 SA No. 555 of 2003

basis of said gift deed. This order has attained finality and there

is no contrary evidence on record to the assertion of Ram Kumar

Tiwari that based on this order (Ex.­D/7) he was allowed

compensation in the same proportion at the time of abolition of

Proprietory Rights. If Ram Kumar Tiwari’s name was mutated in

the revenue records and was also allowed compensation, he will

hold the land belonging to Hirondi Bai in the same proportion.

Therefore, the first Appellate Court’s finding that any order in the

ceiling proceeding could not have been passed without

impleadment of Ram Kumar Tiwari is in accordance with law.

Ram Kumar Tiwari was otherwise also entitled to succeed to the

property of Hirondi Bai being her nephew, as it has already been

found that Hirondi Bai was “Badi Maa” of Ram Kumar Tiwari.

23. There is one more aspect of the matter, which would make the

first Appellate Court’s order final, inasmuch as, the first Appellate

Court has held that the order in the ceiling case was made

without following the principles of natural justice, as the same

was passed without noticing Ram Kumar Tiwari, he having share

in the property, has not been assailed by the State of Chhattisgarh

by preferring any separate Second Appeal nor any Cross Appeal

has been filed in the present Second Appeal. Thus, this part of

decree passed by the lower Appellate Court has attained finality
21
WP No. 1115 of 1999 SA No. 555 of 2003

because no substantial question of law has been framed while

admitting the present Second Appeal which would touch upon

the validity of the first Appellate Court’s order on this aspect of

the matter.

24. In view of the above discussion, I hold that the second

substantial question of law again deserves to be answered

against the appellant and in favour of Ram Kumar Tiwari holding

that the first Appellate Court’s order recognizing the gift deed in

view of the certified copy of the order passed by Shri B.M.

Naolekar, having revenue appellate powers, has been decided in

accordance with law.

25. Ex­consequenti, the Second Appeal preferred by Pachkod, now

prosecuted by his legal heirs deserves to be and is hereby

dismissed. Once the Second Appeal is decided in favour of Ram

Kumar Tiwari, the order of mutation in favour of pachkod and his

legal heirs deserves to be and is hereby set aside. The Writ

Petition preferred by Ram Kumar Tiwari is allowed.

Sd/­
Judge
(Prashant Kumar Mishra)

Barve

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