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Kajal Kumar Goswami vs Taramani Debya on 30 July, 2019

[1]

IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 660 of 2015
1. Kajal Kumar Goswami
2. Binoy Kumar Goswami
3. Basanti Goswami…………………… Appellants
Versus
1. Taramani Debya
2. Godabari Goswami …………… Respondents
…….
Coram: Hon’ble Mr. Justice Ananda Sen
……
For the Appellants : Mr. Kaushik Sarkhel, Advocate
Ms. Bandana Sinha, Advocate
For the Respondents : —-
……
ORDER
C.A.V. On 23/07/2019 Delivered On. 30/07/2019

4/30.07.2019 This appeal under Section 100 of the Code of Civil Procedure, is

directed against the judgment dated 16th October, 2015, passed by the
District Judge-II, Jamtara in Title Appeal No. 29 of 2015, by which he
dismissed the appeal preferred by the defendants-appellants and upheld
the judgment and decree dated 29.04.2015 (decree signed on 12.05.2015),
passed by the Civil Judge-I, Jamtara in Title suit No. 16 of 1989.

2. The appellants were the defendants and appellants before the trial
court and the first appellate court respectively.

3. The plaintiff-respondents brought a suit for declaration of right,
title, interest and confirmation of possession and in the alternative recovery
of possession in respect of the property left by Nilkantha Goswami. They
further prayed that the deed of adoption, allegedly executed by Nilkantha
Goswami adopting defendant no. 1 namely, Kajal Kumar Goswami bearing
Adoption deed no. 21 dated 24.01.1986, be declared as null and void and
be cancelled. The plaintiffs submitted that plaintiff no. 2 is the legally
married wife of Nilkantha Goswami and plaintiff no. 1 is their son.

4. It is the case of the plaintiffs that defendant no. 1 claimed that
Nilkantha Goswami has adopted him, but the said adoption is bad in law
and by virtue of the said adoption, defendant no. 1 cannot inherit any
property of Nilkantha Goswami. The lands involved in this suit belong to
one Gauri Devi. Said Gauri Devi has a daughter namely, Michhali Bala,
who was married to Dhajadhari Goswami. After the death of Gauri Devi the
property devolved upon her daughter and after the death of her daughter
Michhali Bala, Nilkantha Goswami, the husband of Michhali Bala inherit
the same. From his first wife Nilkantha had one daughter and one son but
they predeceased. After the death of wife, son and daughter, Nilkantha
married with this plaintiff no. 2 and out of the said wedlock, plaintiff no. 1
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was born. When plaintiff no. 2 conceived and was at the advance stage, she
was taken to the house of her mother as there was no other family member
in the house of Nilkantha. There the plaintiff no. 1 was born. Nilkantha
used to help them by money and used to visit his matrimonial home but
slowly, stopped visiting and started neglecting them. Plaintiff no. 2 thus
started living with her mother. On receipt of the information that Nilkantha
Goswami has died, the plaintiffs went to the village of Nilkantha Goswami
and while they intended to possess the land, defendant no. 2 objected and
was later on found that the Jamabandi was transferred in the name of
Kajal Kumar Goswami, the minor son of defendant no. 2 on the ground
that the minor boy was adopted by Nilkantha. The plaintiffs stated that
they were not at all aware of the said adoption, which is illegal. On such
background, the suit was filed.

5. The defendants opposed the claim and disputed the fact that
plaintiff no. 2 was married to Nilkantha. Their claim is that plaintiff no. 2 is
married with one Pandu Goswami and she is legally married wife of Pandu
Goswami. The case of the defendants is that Nilkantha was married only
once and it is an admitted fact that both children, born out of the said
wedlock, died and after the death of the wife, Nilkantha never married.
Surprisingly, the defendants admit that Taramani Debya, i.e. plaintiff no. 2
used to reside with Nilkantha but without marriage and they were in live in
relationship. It is the further case of the defendants that on coming to
know about the said live in relationship, the mother of plaintiff no. 2 took
her alongwith her and she never came to the village of Nilkantha. She was
later on married to Pandu Goswami. So far as adoption deed is concerned,
defendants stated that the same is valid and all the ceremonies of adoption
had taken place and thus, the deed cannot be declared invalid.

6. On the pleadings of the parties, the trial court framed six issues.
Issue nos. (iv) and (v) is of utmost important, which reads as follows:-

“(i) to (iii)…..

(iv) Whether the plaintiff No. 2 is the widow of Nilkantha
Goswami and Plaintiff No. 1 is the son of Nilkantha
Goswami.

(v) Whether the deed of adoption No. 21 dated 24.01.1986 is
illegal, void, unenforceable in law and is fit to be cancelled.”

7. Before the trial court, eight witnesses were examined on behalf of
the plaintiffs and several documents were exhibited.

8. On behalf of the defendants twelve witnesses were examined and
some documents were exhibited including the deed of adoption.

9. After hearing the parties the trial Court, decreed the suit in favour
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of the plaintiffs-respondents holding that Taramani Debya, i.e. plaintiff no.
2 is the wife of Nilkantha and plaintiff no. 1 is the son of Nilkantha and the
adoption deed dated 21.04.1986 of Kajal Kumar Goswami by Nilkantha
Goswami is illegal, void and inoperative and does not confer any right upon
him.

10. Being aggrieved by the said judgment, title appeal no. 29 of 2015
was filed. The first appellate court independently considered the points,
which were raised and discussed the evidence on the issue and has
dismissed the appeal and has held that Taramani Debya, i.e. plaintiff no. 2
is the widow of Nilkantha and plaintiff no. 1 is the son of Nilkantha and the
adoption deed is bad.

11. Against concurrent finding of facts, the appellants have moved
this Court by filing this second appeal under Section 100 of the Code of
Civil Procedure.

12. Mr. Kaushik Sarkhel, learned counsel appearing for the appellants
submits that both the courts below failed to take into consideration that
Taramani is the wife of Pandu Goswami and not of Nilkantha and thus,
both the courts below have committed error in arriving at the finding. He
submits that both the courts below have wrongly held that plaintiff no. 1 is
the son of Nilkantha and thus decreed the suit and dismissed the appeal.
He further submits that it is evident from the statement of the witnesses
which clearly suggests that plaintiffs never came to the village of Nilkantha
and thus, there exists no question of seeking consent at the time of
adoption. He further submits that the witnesses have also stated that
Taramani was having a live in relationship with Nilkantha but they were
not married. He further submits that in absence of the valid marriage,
neither the suit could have been decreed nor the adoption deed could have
been annulled. He further submits that the first appellate court only on the
ground that there was some illicit relationship between Taramani and
Nilkantha, has decreed the suit and held that Taramani to be the wife of
Nilkantha, which is absolutely bad. He relies upon a judgment passed by
the Hon’ble Supreme Court in the case of “Bachhaj Nahar- versus- Nilima Mandal
Another, reported in (2008) 17 SCC 491.” He further submits that according to
him, the substantial question of law, in this case would be as follows:-

“Whether the learned Court below erred in law by giving a
suo motu finding that Taramani (Plaintiff) was married to
Pandu Goswami for the second time as this fact was neither
pleaded by the plaintiff or by the defendant and even no
evidence was produced on this aspect by either of the
parties.”

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13. After hearing the counsel for the appellants and on going through
the records, I find that the question before the trial Court and the appellate
Court is:-

“(i) Whether the plaintiff no. 1 is the son and plaintiff no. 2 is
the wife of Nilkantha Goswami and

(ii) Whether the adoption deed executed by Nilkantha
Goswami in favour of Kajal Kumar Goswami is valid or
legal.”

14. Both the aforesaid points have been decided in favour of the
plaintiffs. Whether plaintiff no. 1 is the son or plaintiff no. 2 is the wife of
Nilkantha is a pure question of fact. Both the courts below concurrently
found after going through the evidence that plaintiff no. 1 is the son and
plaintiff no. 2 is the wife of Nilkantha Goswami. Both the courts discussed
the evidence of the witnesses independently and came to the aforesaid
finding and I find that there is no perversity in the same. The proposed
substantial question of law, framed by the appellants, has got no relevance
in this case. Whether Taramani for the second time married with Pandu
Goswami or not is also of no relevance. Thus, even if any finding has been
given to that effect will have no bearing in this case, more so, when specific
finding has been given by both the courts below that Taramani is the wife
and plaintiff no. 1 is the son of Nilkantha. This finding is based on
evidence. This Court under Section 100 of the Code of Civil Procedure,
cannot set aside the finding of facts arrived at by both the courts below.

15. On the adoption deed, I find that this issue depends on the earlier
issue. The person adopted is a male child. The Courts have already held
that plaintiff no. 1 is the son of Nilkantha. As the concurrent finding of fact
is there then it is to be seen whether Nilkantha could have adopted
defendant no. 1. Admittedly, both the parties are Hindu. Adoption of a
Hindu is governed by Hindu Adoption and SectionMaintenance Act, 1956. Section
7 of the said Act provides that any male of sound mind, who is not a minor,
has the capacity to take a son or daughter in adoption. There is a proviso
to Section 7, which provides that if his (person adopting) wife is living, he
shall not adopt except with the consent of his wife unless the wife has
completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a Court of competent jurisdiction to be of unsound
mind.

16. Section 11 of the said Act prescribes other conditions. Section
11(i) provides that if the adoption is of a son, the adoptive father or mother
by whom the adoption is made, must not have a Hindu son or son’s son or
a son’s son’s son whether by legitimately or by adoption.

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17. When the aforesaid law is applied to this case, I find that at the
time of adoption of defendant no. 1, Nilkantha had a son, i.e. plaintiff no.

1. Be it noted that both the courts below have given this concurrent finding
that plaintiff no. 1 is the son of Nilkantha. In presence of a son, as per law,
another son cannot be adopted.

18. It is the case of the plaintiff that plaintiff no. 2 was alive and her
consent was not taken at the time of adoption. This fact is admitted that
there is no consent. To this the defendant firstly, denied the relationship of
husband and wife between plaintiff no. 2 and Nilkantha. This denial has
been rejected by both the courts below. The second plea, taken by the
appellant, is that the wife never came to the house of Nilkantha so there is
no question of taking consent. This cannot be a ground for not taking
consent. The consent is waived only on the conditions provided in the
proviso of Section 7 of the said Act, i.e. the wife has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a
Court of competent jurisdiction to be of unsound mind. Only on happening
of these three conditions, the consent of the wife is not necessary. Except
these three conditions, whatever be the situation, consent of the wife is
necessary for a male Hindu before taking adoption. Residence of wife at a
different place is not a condition for waiving the said condition.

19. Thus, I find that the deed of adoption is against the provision of
Sections 7 11 of the Hindu Adoption and SectionMaintenance Act, 1956 and is
not a valid document. Both the courts below have concurrently held that
the document is bad and have rejected the contention of the appellants.
There is no illegality in the decision.

20. Thus, in view of the concurrent finding of facts and well
established provision of law, I find no merit in this appeal. The judgments
of both the courts below, being concurrent finding of facts need no
interference. Accordingly, this second appeal is dismissed.

(Ananda Sen, J)

Mukund/-cp.2

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