HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 317 / 2013
Kailashchandra S/o Late Shri Radhakishan ji by caste Joshi
Brahmin, aged 53 years, Profession business, resident of Pandeta
Niwas, Mahatma Gandhi Aarogya Sadan Road, Bhilwara.
—-Appellant/plaintiff
Versus
1. Sant Ramtaram Guru Sant Shri Bhagatram ji Ramsnahi,
resident of Ramdwara, Chittorgarh Tehsil District Chittorgarh.
2. Haji Banshir Mohd. S/o Shri Nasruddin Shekh, resident of
Purani Dhan Mandi, Bhilwara.
—-Respondent/defendant
__
For Appellant(s) : Mr. R.R. Nagori, Sr. Advocate assisted by Mr.
Alkesh Agarwal, Mr. S.L. Kumawat Mr.
Akshay.
For Respondent(s) : Mr. Ramit Mehta, Mr. Muktesh Maheshwari,
Mr. Tarun Dudia Mr. Saurabh Maheshwari.
__
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
REPORTABLE
30/05/2017
1. Appellant plaintiff has preferred this appeal against the
judgment and decree dated 08.08.2013 passed by learned Addl.
District Sessions Judge No.2, Bhilwara whereby he dismissed
the suit of plaintiff filed for cancellation of sale-deed as also
seeking injunction and pre-emption.
2. Facts in brief giving rise to this appeal are that plaintiff
Kailashchandra, claiming him to be son of Radha Kishan Joshi,
filed a suit before learned trial Court wherein it was averred by
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him that a residential house located at Mahatma Gandhi Hospital
Road, Bhilwara was purchased by Radha Kishan Joshi out of his
own income. He died on 6.12.2002. Since then, plaintiff is in
possession of the house as its owner. He had to move out
frequently for his business purpose. His mother Smt. Kamla Devi
was introduced to Ramsnehi Sect by Vijay Kumar, who happens to
be son of her brother Radheyshyam Tripathi. Vijay Kumar and
Dinesh Kumar both of them persuaded his mother and could
succeed in getting the said house sold to defendant Sant Ramta
Ram of Ramsnehi Sect through a fictitious sale-deed on
11.07.2008. No consideration amount was paid for the said sale.
The sale-deed was executed after taking Smt. Kamla Devi in
undue influence on account of her faith in the said Sect. No
possession of the said property was handed over to defendant
which remained in possession of plaintiff. It was also alleged that
plaintiff was co-owner and co-sharer of the said house along with
her mother and thus, she alone was not entitled to sale the house.
On these grounds, the said sale-deed is liable to be declared null
and void. Even then, if the Court does not deem it proper to set
aside the sale-deed, it was alternatively prayed that plaintiff is
entitled to be substituted in the said sale-deed in place of
defendant in exercise of his right of pre-emption being co-sharer
of the said property as also being ready and willing to pay sale
consideration shown in the sale-deed as Rs.10,00,000/- and to
restrain the defendant from interfering with peaceful enjoyment
and possession of plaintiff.
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3. Defendant denied the facts mentioned in the plaint. Firstly,
it was denied that plaintiff is son of Shri Radha Kishan. It was
averred that Radha Kishan died without any issue. Plaintiff Kailash
Chandra was natural son of Sukh Ram Joshi and not of Radha
Kishan Joshi. It was also averred that plaintiff never remained in
possession of the disputed property as owner. He is residing at
Surat (Gujarat) along with his family members from last so many
years in connection with his business. It was also averred that
Kamla Devi is not mother of plaintiff. She also did not have any
issue. She died at General Hospital, Chittor. She was residing
with her nephew Dinesh Chand at Adityapuram during her last
days. All the facts mentioned in the plaint regarding sale-deed
having being executed without consideration, fictitiously and just
because of faith of Kamla Devi in Ramsnehi Sect were also denied.
It was also averred that plaintiff has no locus standi to allege that
the sale-deed was fictitious and without consideration. He also
does not have any right of pre-emption on the disputed property.
It has also been averred in the written statement that as Radha
Kishan Joshi and Kamla Devi did not have any issue, they kept 2-3
boys with them in the hope that those boys will serve them in
their old age but all of them left the couple after getting married.
In these circumstances, Radha Kishan Joshi executed will in favour
of his wife Kamla Devi in respect of the disputed property. In due
course of time, Kamla Devi sold this property to defendant vide
sale deed dated 11.07.2008 and handed over possession of the
house to him, however, her domestic articles remained in the said
house as she had become old and unwell. Thereafter, she went to
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her brother’s house at Seti, District Chittor and ultimately died
there in General Hospital on 23.08.2008. It was also stated that
plaintiff is also known as Kailash Prakash, who is one amongst 3-4
sons of Shri Sukhram Sharma, resident of Todaraisingh, District
Tonk. He never stayed with Radha Kishan at Bhilwara in this
disputed property. However, knowing the fact that Radha Kishan
Joshi and Kamla Devi are issue-less, with intention to grab their
property, plaintiff filed a suit for permanent injunction in May,
2008 under a conspiracy to forcibly take possession of the house
and also tried for the same on 30.12.2008 but was resisted. In
light of these facts, it was prayed that the suit be dismissed with
cost.
4. No rejoinder was filed on behalf of the plaintiff. On the basis
of the pleadings, following issues were framed by learned trial
Court :-
1. Whether the plaintiff being co-sharer and
successor of his father Radha Kishan Joshi is in joint
possession of the disputed property with his mother
Smt. Kamla Devi ? … plaintiff.
2. Whether plaintiff is entitled to get the sale-deed
dated 11.07.2008 declared null and void, which was
executed by his mother Kamla Devi in favour of
defendant ? … plaintiff.
3. Whether the plaintiff is entitled to get his name
substituted in the sale-deed dated 11.07.2008 in
place of defendant being co-sharer of the disputed
property as stated in para 10 and 11 of the plaint ?
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4. Whether plaintiff is entitled to get injunction
against defendant on the grounds mentioned in para-
8 of the plaint ? … plaintiff.
5. Whether plaintiff is not the natural son of Late
Shri Radha Kishan and Smt. Kamla Devi but son of
Sukh Ram Joshi ? … defendant.
6. Whether plaintiff never remained in possession
of the disputed property in the capacity of owner ?
… defendant.
7. Whether late Shri Radha Kishan Joshi executed a
will in favour of his wife late Smt. Kamla Devi in
respect of his whole moveable and immoveable
property ? … defendant.
8. Reliefs.
5. During trial, plaintiff got examined five witnesses in all
including himself as PW-1. PW-2 Bundu Khan, PW-3 Suresh
Chandra, PW-4 Jogender Singh and PW-5 Nand Puri were also
examined as plaintiff’s witnesses. As many as 28 documents were
produced on his behalf including his school certificates and other
records showing the name of Shri Radha Kishan as his father.
Defendant got himself examined as DW-1. Two other witnesses
namely DW-2 Amar Singh and DW-3 Kedar Mal were also
examined. 18 documents were exhibited on behalf of defendant
including the will dated 09.01.1998, sale-deed dated 11.07.2008,
rent receipts of the disputed house etc.
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6. After affording opportunity of hearing to both the sides,
learned trial Court finally came to the conclusion that plaintiff has
utterly failed to prove issues No.1, 2 and 3 in his favour. All other
issues were also decided in favour of the defendant and against
the plaintiff. Ultimately, the suit was dismissed by learned trial
Court.
7. Aggrieved by the judgment impugned, this appeal has been
preferred on behalf of appellant plaintiff.
8. Learned counsel for the appellant has assailed the impugned
judgment on many counts. His main contention is that learned
trial Court has utterly failed to appreciate the evidence available
on record regarding adoption of plaintiff by late Shri Radha Kishan
Joshi and thus has wrongly decided this issue. The decision of
learned trial Court on all other issues has been influenced by the
finding that the plaintiff was not adopted son of late Radha Kishan
Joshi. Thus, the findings in respect of other issues are also
perverse and suffer from infirmity. Various other contentions
raised by learned counsel for the appellant will be mentioned and
discussed in later part of the judgment while analyzing the matter
on various relevant points for determination.
9. Per contra, learned counsel for the respondents have
vehemently argued that the judgment impugned is in perfect
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consonance with the pleadings and the evidence. No averment at
all was made in the plaint that plaintiff was an adopted son of late
Shri Radha Kishan Joshi. Neither the factum of adoption has been
proved by the plaintiff. Plaintiff has no locus standi to challenge
the will and sale-dded executed by late Shri Radha Kishan Joshi
and Smt. Kamla Devi respectively. He had never been in
possession of the disputed property as co-sharer. Thus, it has
been prayed that the appeal be dismissed.
10. In the light of the arguments advanced and the material
available on record, points for determination as required to be
framed as per the provisions contained under Order 41 Rule 31
CPC are as follows :-
1. Whether the plaintiff/appellant Kailash Chandra,
being son of late Shri Radha Kishan Joshi, is co-heir
and co-sharer along with his mother late Smt. Kamla
Devi in the disputed property, and was thus entitled to
be substituted in the sale-deed dated 11.07.2008 in
place of respondent/defendant in exercise of his right
of pre-emption in the disputed property.
2. Whether appellant plaintiff is entitled to get the
sale-deed dated 11.07.2008 Ex.A/7declared null and
void, which was executed by Kamla Devi in favour of
defendant/respondent Ramta Ram.
3. Whether late Shri Radha Kishan executed will
Ex.A/4 on 09.01.1998 in favour of his wife late Smt.
Kamla Devi in respect of the disputed property.
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4. Whether the appellant remained in possession of
the disputed property and is, therefore, entitled to
obtain injunction against the defendant/respondent,
restraining him from interfering with his possession.
11. On perusal of record, it is evident that the above point No.1
comprises of issues No.1, 3 and 5 framed by learned trial Court.
Point No.2 as stated above is analogous to issue No.2 framed by
learned trial Court. Point No.3 is identical and analogous to issue
No.7 framed by learned trial Court and point No.4 comprises of
issues No.4 and 6 framed by learned trial Court. So, the
discussion in respect of these points for determination will take
place on the basis of the evidence discussed by learned trial Court
in the relevant issues.
12. POINT NO.1 : In this respect, the first and foremost point
to be considered is whether the plaintiff/appellant is entitled to the
reliefs claimed by him in the plaint in the capacity of co-heir and
co-sharer of the disputed property, being son of late Shri Radha
Kishan.
13. On perusal of the plaint, it is evidently clear that plaintiff has
claimed himself to be son of late Shri Radha Kishan and his wife
Smt. Kamla Devi. This fact was denied by defendant in the
written statement stating that Radha Kishan and Kamla Devi had
no issue and they died issue-less. Plaintiff Kailash Chandra was
stated to be natural son of Sukh Ram Joshi. It is undisputed that
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no rejoinder was filed on behalf of the plaintiff in respect of the
facts mentioned in the written statement. Note to this fact was
taken by learned trial Court also in the judgment impugned.
During arguments, learned counsel for the appellant has
submitted that non-filing of the rejoinder does not amount to
admission of the facts stated in the written statement. He has
relied on the judgment rendered in Ishwar Lal Anr. Vs. Ashok
Anr., reported in 1998 (2) RLW 730 in this regard. In my
considered opinion, on the basis of the principle laid down in the
above referred judgment, it can at the most be held that simply
non-filing of the rejoinder will not tantamount to the admission of
this fact on behalf of the appellant that late Shri Radha Kishan and
Smt. Kamla Devi died issue-less and also that the plaintiff was
natural son of Sukh Ram. But this does not help the appellant
much, as he is still required to stand on his own legs to prove the
case put forth by him. He has stated in the plaint that late Radha
Kishan and late Smt. Kamla Devi were his father and mother. It is
to be analyzed by this Court on the basis of the pleadings and the
evidence adduced in this regard by plaintiff whether he had been
able to prove the fact as stated in the plaint.
14. Second fold of argument advanced by learned counsel for
the appellant is that as per definition given in Section 3 (57) of the
General Clauses Act “son” includes “adopted son”. So, it was not
incumbent upon the plaintiff to specifically mention that he was
adopted son of Radha Kishan and Kamla Devi. His submission is
that since plaintiff has set up the case by adducing evidence that
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he was adopted by late Radha Kishan and Kamla Devi, non-
mentioning of this fact in the plaint specifically cannot be taken to
adversely affect his case.
15. Per contra, learned counsel for the respondents has argued
that since the fact of adoption of plaintiff by Radha Kishan and
Kamla Devi has not been pleaded in the plaint, the evidence
adduced in this regard by him is of no avail. In this regard, he
has referred to judgment in Bondar Singh Ors. Vs. Nihal
Singh Ors., reported in 2003 (2) WLC (SC) Civil 333
wherein it was laid down that in absence of a specific plea the
defendant cannot be allowed to build up a case of sub-tenancy.
Had the defendant taken such a plea, it would have found place as
an issue in the suit, but it was observed that there was no such
issue on the point.
16. In reply to this fold of argument, learned counsel for the
appellant has submitted that even if there has been no specific
issue but where the parties come to trial with the knowledge on a
particular question, the rule of variance between pleadings and
proof has no application. In this regard, he has placed reliance on
the following judgments :
1.Nagubhai Ammal Vs. B. Shama Rao, reported in
AIR 1956 SC 593 ;
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2. Union of India Vs. M/s. Motilal Padampat
Sugar Mills Co. (P) Ltd., reported in AIR 1969 SC
630 and;
3. P. Purushottam Reddy Vs. M/s Pratap Steels
Ltd., reported in AIR 2002 SC 771.
17. It was held by three Judges Bench of Hon’ble Supreme Court
in Nagubai Ammal’s case (supra) as follows :
“Although no specific plea that the sale in favour of the
defendants was affected by the doctrine of lis pendens was
raised in pleading of the plaintiff and no specific issue was
directed to that question, the defendants went to trial with
full knowledge that the question of lis pendens was in
issue, had ample opportunity to adduce their evidence
thereon, and fully availed themselves of the same, Held
that, in the circumstances, the absence of a specific
pleadings on the question was mere irregularity, which
resulted in no prejudice to them.”
18. In other judgments cited above, Nagubai Ammal’s case was
followed.
19. In light of the judgment referred above, I am of the opinion
that even if a specific plea has not been mentioned in the plaint
that the plaintiff was adopted by Radha Kishan and Kamla Devi as
their son yet both the sides have adduced evidence in this regard,
which is available on record. Hence, the irregularity of not
specifically mentioning the plea of adoption can be ignored.
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20. Next point of argument advanced by learned counsel for the
appellant is that learned trial Court has erred in not attaching
adequate weightage to the oral evidence adduced by PW-2 Bundu
Khan, PW-3 Suresh Chandra, PW-4 Jogender Singh and PW-5
Nand Puri on the point of adoption. It has also brushed aside
lightly the documentary evidence adduced by plaintiff wherein the
name of Shri Radha Kishan has been shown as the father’s name
of plaintiff. Learned counsel has also placed reliance on the
following judgments in this regard :
1. Nandkishore Vs. Brijbehari, reported in 1954
RLW 563 and ;
2. Roshan Lal Vs. Samar Nath, reported in AIR
1937 Lahore 626.
21. In Nandkishore’s case (supra), it was held as under :-
“Consequently, in cases of old adoption a
presumption in favour of the validity of adoption may be
gathered from the status of the adopted son in the
adopting family and its recognition by the members of the
family for a number of years. Where S. the adopted son
lived at Jhalawar (the place of his adoptive father) from
his childhood and onwards and was taken to be the son of
M, the adoptive father, and in his suits and other
proceedings he adopted the parentage of M. and was
taken in the service of the Jhalawar State as being the son
of M. and he himself did not care to prefer a claim to the
property in dispute but he kept silent and encouraged his
daughter and son-in-law to fight out the case challenging
his own adoption, it was held that such a conduct goes to
show that S. could not himself dare to revoke his own
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adoption and in the circumstances his adoption must be
deemed to have been established.”
22. Likewise in Roshan Lal’s case (supra), it was observed as
under :-
“When a person has for nearly half a century enjoyed the
status of an adopted son and has been treated as such all
his life and at this distance of time it is not possible to get
witnesses who were actually present at the time and could
depose to the performance of the ceremony, in such
circumstances, in the absence of anything to indicate the
contrary, it must be presumed that all the necessary
ceremonies were duly and regularly performed at the time
of his adoption.”
23. On the contrary, learned counsel for the respondents has
argued that the documents produced on behalf of the appellant
are of initial years, mainly pertaining to the period of his
education. It has come on record that being issue-less Radhey
Kishan kept 2-3 boys with him at different intervals with the
object that they will take care of Radha Kishan and his wife in
their old age but none of them continued to stay with old couple
and in due course of time, they left Radha Kishan and his wife. It
has been argued that likewise plaintiff Kailash Chandra was also
kept and brought up by Radha Kishan during his young age but no
ceremony of adoption ever took place. The argument has been
advanced that in such circumstance, simply mentioning the name
of Radha Kishan as father’s name does not prove the factum of
adoption. It has also been argued that evidence given by PW-2,
PW-3, PW-4 and PW-5 is neither reliable nor sufficient to prove the
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factum of adoption. None of the family members have been
examined to prove that the adoption ceremony took place ever. It
has also been argued that plaintiff himself has admitted in the
cross-examination that Mama Radhey Shaym and Mami were
present at the time of adoption ceremony. But none of them has
been examined as a witness despite being alive. It has also been
argued that the conduct of plaintiff during the later years clearly
shows that he was never adopted as a son by Radha Kishan.
Plaintiff used to stay at Surat in Gujarat along with his family
where his sons were doing business. This fact has been admitted
by plaintiff himself and other witnesses examined on his behalf. It
goes to show that plaintiff was not an adopted son. Following
judgments have also been relied upon by learned counsel for the
respondents in this regard :
1. Lakshman Singh Kothari Vs. Smt. Rup
Kanwar, reported in AIR 1961 SC 1378 ;
2. Raghavamma Anr. Vs. A. Chenchamma
Anr., reported in AIR 1964 SC 136.
24. It was held in Raghavamma’s case (supra) that “it is well
settled that a person who seeks to displace the natural succession
to property by alleging an adoption must discharge the burden
that lies upon him by proof of the factum of adoption and its
validity.”
25. Having given thoughtful consideration to the rival
contentions and having gone through the documentary as well as
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ocular evidence adduced by both the sides in this regard, I am of
the considered view that learned trial Court has properly dealt
with the evidence available on record and has arrived at the
correct conclusion after proper analysis. Insofar as the
documentary evidence adduced by plaintiff is concerned, it simply
shows that in the initial year of childhood or young age, name of
Radha Kishan has been mentioned as father’s name in the
documents pertaining to plaintiff. These documents do not prove
that the ceremony of adoption ever took place in which plaintiff
was adopted as a son by Radha Kishan and Smt. Kamla Devi and
was given in adoption by his natural parents that is Sukh Ram and
his wife. Neither any adoption deed nor any photographs of the
adoption ceremony have been proved. It is worth mentioning in
this regard that plaintiff has admitted during cross examination
that in the marriage invitation cards pertaining to Vijay and
Mukesh Ex.A/5 and Ex.A/6 respectively, name of Radha Kishan
has been mentioned as their father’s name. But at the same time,
he has stated that this name has been wrongly written as their
father’s name. It is, thus, clear by his own admission that simply
mentioning of name as father does not prove the fact that Radha
Kishan was in fact their father. More over, it has been admitted by
him that in ration card Ex.A/2, which pertains to late Radha
Kishan, his name does not appear. Likewise, in document Ex.A/1,
name of plaintiff’s father has appeared as Sukh Ram Sharma.
Thus, simply on the basis of name of Radha Kishan appearing in
the documents as father’s name, it cannot be treated as a
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conclusive proof that plaintiff was adopted by Radha Kishan and
his wife.
26. There is ample and reliable evidence available on record that
2-3 boys were kept with him at different point of time by Radha
Kishan with the object that they would serve them in the old age
but later on, they left the old couple. This fact has been admitted
by plaintiff himself during his cross-examination that Radha
Kishan got all the arrangements done in respect of marriage of
Vijay and Mukesh. He also managed to establish business for
Vijay, despite that he did not give his name to them as their
father. In light of these facts, it cannot be presumed that Radha
Kishan was adopted father of plaintiff Kailash Chandra.
27. In Roshan Lal’s case (supra) relied upon by learned counsel
for the appellant on this point, it was held that after a long gap of
time it is not possible to get the witnesses who were actually
present at the time of performance of adoption ceremony and so,
it can be presumed that necessary ceremonies were duly
performed. But in the case in hand the witnesses were available
and have been examined as PW-2 to PW-5 but they are not family
members of any of the families who were either taking Kailash
Chandra in adoption or was giving him in adoption. On the
contrary Mama Radhey Shyam and his wife who were said to be
present at the time of ceremony and were also alive at the time
trial took place were not examined. This leads the Court to take
adverse presumption against any such ceremony to have taken
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place. Further, oral evidence given by PW-2 to PW-5 regarding
adoption ceremony does not inspire confidence. PW-2 Bundu
Khan has stated that he did not go to the place of ceremony but
witnessed it from ‘chabutari’ of his own house situated just
opposite it. He also admitted that at that time, he was of tender
age and thus cannot tell the year of adoption. PW-3 Suresh
Chandra appears to be an interested witness having regular loan
transactions with plaintiff Kailash Chandra. He has failed to
depose about the month, year, samwat or even weather in which
adoption took place. PW-4 Jogendra Singh claims to have seen
adoption ceremony in 1964 while staying in Radha Kishan’s house
as tenant since 1963. But he has admitted in the cross
examination that he did not have any rent receipt. He also admits
that the present house was constructed in the year 1987 and he
used to stay in some other house existing behind. These contrary
statements create suspicion about his veracity. PW-5 Nandpuri
has also not been able to depose as to in which part of the house
the adoption ceremony actually took place. Taking the whole oral
evidence into consideration, no trustworthy and reliable account of
any such ceremony of adoption is established.
28. In Nand Kishore’s case (supra), relied upon by learned
counsel for the appellant, the facts were different from the case in
hand. In the case referred, the adopted son was recognized by
the members of family for a number of years, who lived with his
adopted father at Jhalawar from his childhood and onwards. But
in the matter in hand, it is an admitted case that plaintiff did not
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continue to stay with Radha Kishan and his wife. He himself had
admitted that he shifted to Surat along with his family in
connection with the business run by his sons. He has stated that
he used to visit Radha Kishan at Bhilwara off and on. This cannot
be taken to be conduct of adopted son suggesting the adoption, as
laid down in Nand Kishore’s case (supra). Thus, in my considered
opinion, this judgment does not support the case of appellant.
29. This is also an important aspect to note that it is an admitted
case of all the plaintiff’s witnesses that plaintiff was not available
in Bhilwara when Radha Kishan died. Plaintiff himself has
admitted that funeral ceremony of Radha Kishan was conducted
by Radhey Shyam, Vijay Prakash and Dinesh as he was not
present in Bhilwara on the death of Radha Kishan. PW-3 Suresh
Chand has stated that plaintiff came on the same day from
Gujarat when death of Radha Kishan took place. PW-5 Nand Puri
has stated that plaintiff came 2 – 3 days after the death of Radha
Kishan. Thus, there is variance on the point of time when plaintiff
came to Bhilwara after death of Radha Kishan, which creates
doubt about the reliability of the witnesses. But anyhow, the fact
remains that the plaintiff was not available when his allegedly
adopted father Radha Kishan died. Similarly, this fact is also
evidently clear by the admissions made by plaintiff’s witnesses
that even at the time of death of his adoptive mother Kamla Devi,
Radha Kishan was again not present with her. It is established by
evidence that death of Kamla Devi took place in General Hospital,
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Chittor when Kamla Devi was residing in the house of his brother
during her last days.
30. In light of the discussions made above, this Court is of the
firm opinion that no sufficient and reliable evidence has been
produced by the plaintiff regarding the adoption ceremony in
which he was adopted by Radha Kishan and his wife Kamla Devi
as their son. Simply mentioning the name of Radha Kishan as
father of plaintiff in certain documents cannot be considered
sufficient evidence to establish the factum of adoption of plaintiff.
Does it sound reliable that plaintiff was adopted son of Radha
Kishan and Kamla Devi in face of the fact that he did not prefer to
stay with the old couple and chose to shift to Surat along with his
family ? Can it be relied that plaintiff was adopted son of Radha
Kishan and Kamla Devi in face of the fact that he was not available
with any of them at the moment they breathed their last ? In my
considered opinion, this cannot be a conduct of adopted son on
the basis of which this Court can presume that he was ever
adopted by them, despite the absence of proof regarding adoption
ceremony.
31. At this juncture, this is also worth to note that the plaintiff
has not even dared to specifically mention in the plaint that he
was adopted by Radha Kishan and his wife. No date, time, place
and other relevant details of the adoption ceremony have been
mentioned in the plaint. On the contrary, he has represented
himself to be natural son putting learned counsel appearing for
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him under compulsion to take aid of the definition given in Section
3 (57) of the General Clauses Act that “son” includes “adopted
son”. Taking the facts and circumstances in totality, the conclusion
drawn by learned trial Court in this regard appears to be correct
and in consonance with the evidence available on record.
32. The plaintiff’s claim on the property in dispute on account of
being co-heir and co-sharer was solely set up on the ground that
he was an adopted son of late Radha Kishan and Kamla Devi. He
was alleging to have right of preemption in regard to the disputed
property and accordingly to be substituted in the sale-deed dated
11.07.2008. But in light of the discussions made above, plaintiff
has utterly failed to establish that he was ever adopted by Radha
Kishan and Kamla Devi, so his claim in the disputed property in
the capacity of co-heir and co-sharer falls flat on the ground.
Resultantly, he cannot be held entitled to any right of pre-emption
and to be substituted in the sale-deed dated 11.07.2008 in place
of respondent defendant. So, issues No.1, 3 and 5 decided by
learned trial Court appear to be correct and no infirmity is found
therein. The point No.1 framed by this Court for determination is
accordingly decided in favour of respondent defendant and against
the appellant plaintiff.
33. POINT NO.2 : Learned counsel for the appellant has
assailed the sale-deed dated 11.07.2008 Ex.29 and has prayed to
get it declared null and void on many counts. It has been argued
that firstly, plaintiff was co-owner and co-sharer in the disputed
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property along with his mother Kamla Devi. So, Kamla Devi alone
was not entitled to execute any sale-deed in favour of defendant
Ramta Ram. Secondly, defendant, who is said to be a saint does
not have any financial resources to pay the sale consideration and,
therefore, no sale consideration was paid by him to Kamla Devi.
Thirdly, Kamla Devi was unduly influenced being a follower and
having faith in Ramsnehi Sect and taking advantage of this, sale-
deed was executed by her. Fourthly, possession of the property in
dispute was not handed over, which is an essential ingredient to
effect the sale. Fifthly, no receipt has been produced for
Rs.10,00,000/-, which is said to have been paid through cheque.
Sixthly, no reference has been made in the sale-deed about the
will, which was allegedly executed by Radha Kishan in favour of
Kamla Devi by which she came in title of the said property. Lastly,
no attesting witness of the sale-deed was examined. Learned
counsel for the appellant vehemently argued that in light of these
grounds, the sale-deed is liable to be declared null and void.
34. Per contra, learned counsel for the respondents have raised
the basic issue that appellant plaintiff has got no locus standi to
allege that the sale-deed was null and void because of the fact
that he is not co-sharer and co-owner of the said property. It has
also been argued that Sections 12 and 13 of the Hindu Adoption
and Maintenance Act, 1946 also pose question to the stand taken
by the appellant plaintiff.
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35. On this point, learned counsel for the appellant has relied
upon the following judgments :-
1. Mst. Kharbuja Kuer Vs. Jangbahadur Rai
Ors., reported in AIR 1963 SC 1203 ;
2. Alifan Bibi Ors. Vs. Amina Bibi Ors.,
reported in 1996 (2) CCC 9 (Orissa) and;
3. Ashok Kumar Anr. Vs. Gaon Sabha, Ratauli
Ors., reported in AIR 1981 Allahabad 222.
36. On going through the judgments referred, it comes out that
in these cases seller being ‘pardanashin’ and illiterate lady, it was
required to ascertain that whether her mental act and
involvement was there or not besides her physical act while
signing the sale document. It was laid down that the
understanding of such a lady about the contents of the documents
is also required to be proved to uphold the validity of the sale-
deed. In my view, these judgments do not come to support the
arguments advanced in absence of the proof that Smt. Kamla Devi
was an illiterate and ‘pardanashin’ lady. It has nowhere been
averred in the pleadings or established by way of evidence that
Kamla Devi was an illiterate and ‘pardanashin’ lady.
37. Learned counsel appearing for respondents have relied upon
the following judgments on this aspect :
1. Dina ji Ors. Vs. Daddi Ors., reported in
AIR 1990 SC 1153 wherein it was held that “Proviso
(C) of S. 12 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 or
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[CFA-317/2013]her before the adoption. It is clear that in the present
case, the widow who was the limited 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 death as is clear from
the Scheme of S. 12 proviso (C).”
2. Chiranjilal Srilal Goenka (dead) by LRs Vs.
Jasjit Singh Ors., reported in AIR 2001 SC 266
wherein it was held that “Legislature has codified and
crystallised the situation prevailing prior to the
enactment of the Act that there was no implied
contract on the part of the adoptive father or mother
in consideration of the gift of his son by a natural
father or mother that he or she would not dispose of
property by transfer or by Will. However, in case of
specific agreement to the contrary between the
parties, the power to dispose of the property would be
subject to the said agreement.”
3. Sorawar Singh (through LRs) Vs. Kan Mal
(through LRs), reported in AIR 2003 Rajasthan
107 wherein it was held in para 44 as under :-
“44. Having given out thoughtful consideration on
contentions raised before me and closely reading the
deed of adoption, I find that the adoption deed does
not anywhere deals with disposing power of the
adoptive mother. It does not restrict in any manner
the disposing power of the adoptive mother. Mere
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recognition of a adopted son as owner of the property,
does not lead to any inference that this was
agreement to the contrary so as to denude the holder
from her disposing power of the property of which she
is not lawfully divested. It was at best recognition of
Sarovar Singh as son of her late husband Samandar
Singh and perhaps ventilating the conventional belief
entertained by many a Hindus particularly in rural
areas even now that an adoption results in divesting
the female holder of land from adoptive father on
such adoption on doctrine that adoption relates back
to the point of time immediately before the death of
adoptive father, whereas under law, though the
deceased husband of the female adopting a child may
be recognised as adoptive father of such adopted
child, he does not divest the adoptive mother of her
property which vest in her absolutely, whether as her
stridhan or acquired as an heir of her husband or from
any other relative.”
38. In light of the legal principles enunciated in the cases
referred above, it is clear that for the sake of arguments, even if it
is assumed for a while that plaintiff was adopted by Radha Kishan
and Kamla Devi, it does not create any embargo on the power of
Kamla Devi of disposing of the property in absence of any
agreement to the contrary. In the facts and circumstances of the
case in hand, firstly, it has not been proved by the appellant
plaintiff that he was ever adopted and secondly, even for the
argument’s sake, adoption is presumed, in light of the above
referred judgments, Kamla Devi was entitled to execute the sale-
deed in favour of defendant Ramta Ram. Thus, the ground that
the plaintiff was co-owner and co-sharer of the property being
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adopted son and hence Kamla Devi was not entitled to sell the
property alone is not found legally correct.
39. So far as other grounds to challenge the sale-deed are
concerned, once the plaintiff appellant is not found to be co-owner
– co-sharer of the property, he is denuded from any authority to
challenge the sale-deed on other grounds. So, issue No.2 decided
by learned trial Court is found to be correct. Accordingly, the
point for determination framed by this Court is also found proved
in favour of defendant respondents and against the appellant
plaintiff.
40. POINT NO.3 : Learned counsel for the appellant has raised
objections regarding the will executed by Radha Kishan in favour
of his wife on many grounds showing the suspicious circumstances
in which the will has been executed. It has been argued that no
attesting witness has testified the will. Date has been corrected
by way of applying whitener at one place and the date has been
left blank at another place. No reference of this will was made in
the said sale-deed executed by Kamla Devi on the basis of this
will. All these points could have required detailed examination in
the light of the judgments referred by learned counsel for the
appellant, if the appellant plaintiff had established his case as co-
sharer – co-owner of the property in dispute. In absence of this
fact having been proved, he looses the locus standi to challenge
the will executed by sole owner of the property – Radha Kishan in
favour of his wife Kamla Devi. It is worth mentioning here that no
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objection has been raised by plaintiff in the affidavit sworn-in by
him. Even during cross examination, he has admitted signatures
at mark ‘A to B’ to be of Radha Kishan. He has also shown his
ignorance to the suggestion that Radha Kishan executed this will
in favour of Kamla Devi as plaintiff did not serve and take care of
him. In view of this, the conclusion arrived at by learned trial
Court in respect of Issue No.7 does not require any interference to
be made therein. Accordingly, point No.3 framed by this Court is
found proved in favour of the respondent defendant.
41. POINT NO.4 : In light of the discussions made above, it is
evidently established that the plaintiff appellant was not having
any title over the property in dispute as co-sharer – co-heir. It
has also been established that he was residing with his family in
Surat and not at Bhilwara where the property is situated. Plaintiff
himself has admitted in his cross-examination that he was
arrested on the charge of breach of peace and he was not
permitted to enter into the disputed property from 15.08.2009 to
17.08.2009. Though he has denied the suggestion that the locks
put by defendant Ramta Ram on the property in dispute were
broken open by him, but this denial does not appeal to logic in
view of the FIR Ex/A/17 lodged against him and the charge-sheet
Ex.A/18 having been filed against him after investigation. DW-1
Ramta Ram has stated that on 17.08.2009 also, plaintiff made a
forcible entry in the house in dispute for which FIR Ex.A/16 was
lodged against him. In the light of these facts, it appears that the
plaintiff appellant was not in continuous and legal possession over
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the property in dispute, though he tried to make forcible entry
therein on certain occasions. It has also been found that he was
not having any legal title, right or interest in the property in the
capacity of co-sharer being an adopted son.
42. In view of these facts, learned trial Court has rightly held
that plaintiff appellant was not entitled for any injunction order
against defendant, who is said to have purchased the property by
way of sale-deed. Thus, upholding the findings of learned trial
Court, this point is also found proved in favour of the respondent
defendant and against the appellant plaintiff.
43. In view of whatever stated and discussed above, all the
points for determination framed by this Court have been found
proved in favour of respondent defendant and against plaintiff
appellant. Resultantly, the appeal fails and is dismissed
accordingly, while upholding the judgment and decree dated
08.08.2013 passed by learned trial Court.
(DEEPAK MAHESHWARI), J.
Arun/PS
