Madhya Pradesh High Court
Smt. Chandrani Bai vs Pradeep Kumar on 12 November, 1990
Equivalent citations: AIR1991MP286, AIR 1991 MADHYA PRADESH 286, (1991) 2 HINDULR 519, (1991) JAB LJ 153, (1991) MATLR 234
JUDGMENT R.D. Shukla, J.
1. This is plaintiff's appeal against the judgment and decree dated 30-3-1984, passed by the District Judge, Seoni, in Civil Appeal No. 47-A of 1983 (arising out of the judgment and decree dated 3-10-1983, passed by the Civil Judge (Class-1), Seoni, in Civil Suit No. 3-A of 1981), whereby the plaintiffs suit for possession of a room of the house situated in Lakhnadon (District Seoni), has been dismissed.
2. Brief history of the case is that the plaintiff Smt. Chandranibai is the widow of one Hukumchand Jain, resident of Bazar Mohalla of Lakhnadon (District Seoni). He died on 2-7-1979. Hukumchand owned and possessed huge moveable and immovable property. It was inherited by the plaintiff.
3. The plaintiff's case is that the defendant Pradeep Kumar is known to her and he had been helping her. He made a request to give him the suit 'kotha' for opening a shop. The plaintiff permitted him to possess the 'kotha' of her house situated in Lakhnadon (District Seoni) and as shown in red colour in the map attached to the plaint.
It is further alleged that the licence for occupation of 'kotha' was given to the defendant on the condition that he will vacate the same as and when required by the plaintiff. A notice terminating the licence was issued to the defendant. Since he failed to vacate the suit property, the suit for possession of the 'kotha' was filed against the defendant.
4. The defendant, on the other hand, denied the claim of the plaintiff and pleaded that he had been adopted by the plaintiff on 9-1-1980 in the presence of friends and relatives. A ceremony of giving and taking was performed. It is further alleged that the plaintiff is of weak mind and is under the influence of her brother. The plaintiffs brother Dayachand fraudulently got his son Anil Kumar adopted by the plaintiff and a registered adoption deed was got executed in pursuance thereof.
5. The trial Court decreed the suit holding that the adoption has not been proved and that 'kotha' in dispute was given to the defendant on licence which stands terminated by a notice dated 12-8-1981.
6. On appeal by the defendant, the learned first appellate Court accepted the contention of the defendant and held that the adoption had been proved. It was further held that the defendant continued to be the adopted son of the plaintiff and, therefore, has right over the property. The story of the plaintiff was disbelieved and, accordingly, the suit was dismissed. Hence, this second appeal.
7. It has been contended by the learned counsel for the appellant that, in the absence of a registered document, adoption cannot be taken to be proved and that the finding of the learned first appellate Court is based on improper appreciation of evidence; and that the fact of permissive possession has wrongly not been accepted by the first appellate Court. It has further been contended that in spite of adoption, no co-ownership has been created in favour of the defendant.
8. The following substantial questions of law have been framed while admitting this appeal :--
"(1) Whether from the material on record, defendant is proved to have been adopted by the plaintiff on 9-1-1980?
(2) Whether, even if the defendant was adopted, his adoption was not legal as he was aged more than 15 years on the date of alleged adoption and there was no pleading and proof of a custom for adoption of a boy aged more than 15 years?
(3) Whether, even if defendant's adoption is upheld, he could not become co-owner of the suit premises with the plaintiff?
(4) Whether the lower appellate Court was legally justified in setting aside the findings of the trial Court in the matter of adoption and acquisition of right by the defendant in the properties of the plaintiff including the suit premises?"
9. The questions Nos. (1), (2) and (4) are being taken up together as all the three are inter-related and off-shoot of the factum of adoption.
The burden of proof of adoption lies on the defendant. He has examined himself as DW 1, DW 2 Mulayamchand, DW 3 Chhotelal, DW 4 Kewalchand and DW 5 Gyanchand Jain in support of his contention.
The plaintiff has examined herself as PW 1 in rebuttal of the adoption and further examined PW 2 Tarendra Nath, PW 3 Mathura Prasad and PW4 Dayachand, to prove another adoption, i.e., of Anil Kumar son of Dayachand (PW 4).
10. The learned first appellate Court has extensively examined the evidence of both the parties with respect to the fact of adoption of defendant Pradeep Kumar. The trial Court has rejected the evidence of the defendant on flimsy grounds and, therefore, on appreciation of evidence, the first appellate Court has come to a conclusion that the fact of adoption has been proved.
11. It has been argued by the learned counsel for the appellant that the finding of fact of the trial Court ought not to have been disturbed and has relied on the case reported in Madhusudan Das v. Narayani Bai, AIR 1983 SC 114. The following observations of their Lordships are very relevant for this case:--
"..........The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate Court is entitled to interfere with the finding of fact."
As observed above, the trial Court has rejected the evidence of the defendant on flimsy grounds and, therefore, the first appellate Court was justified in reversing the finding of fact of the trial Court. The learned counsel for the appellant has tried to demonstrate that in the absence of a registered document in favour of the defendant, the fact of adoption ought not to have been accepted. No doubt, it is true that absence of a registered document creates a suspicious circumstance but that is not sufficient to reject the same when cogent and reliable evidence is adduced by the defendant. In Firm Madhodass v. Appaji Raoji, AIR 1939 Nagpur 221, the following observations have been made :--
"No second appeal has any chance of success where the only ground is that the lower appellate Court has omitted to mention this or that piece of evidence. The Legislature rightly or wrongly has decided that the first appellate Court is to be trusted and it behoves first Appellate Judges to bear in mind the fact that their findings of fact are conclusive and that they therefore, have agreat responsibility and should be especially careful in such cases. If they are not, it may be a matter for administrative discipline but a second appellate Court cannot put the matter right in second appeal."
It is, thus, an established principle of law that the finding of fact is not to be disturbed by the second appellate Court unless material piece of evidence has been discarded or irrelevant evidence has been accepted or there has been a misreading of evidence resulting in perverse finding. It is not the case here. Observation of the first appellate Court with respect to adoption is fully supportable and, therefore, I find nothing to disturb the finding of the fact of adoption. It is, therefore, held that the fact of adoption of Pradeep Kumar by the plaintiff on 9-1-1980, has rightly been accepted by the first appellate Court.
12. Counsel for the appellant has further submitted that Pradeep Kumar was more than 15 years of age at the time of alleged adoption and, therefore, adoption would not be legal and competent. Section 10(iv) of the Hindu Adoptions and Maintenance Act, provides that no person shall be capable of being taken in adoption if he has completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. The plaintiff herself has produced a document (Ex.P-1) showing adoption of Anil Kumar son of Dayachand (her brother's son). There is a recital in the document that Anil Kumar has completed the age of 15 years. Further recital in this document is that Anil Kumar is unmarried and is capable of being adopted according to the customs and traditions of her caste. Thus, from the very assertion of the plaintiff, it appears that there had been a custom in the family which permits that a person of more than 15 years of age, can be adopted.
13. Now, the last and the most important question arising in the case is as to whether adoption creates a right of co-ownership in favour of the defendant, or that the property vested in the plaintiff as widow of Hukumchand, stands divested in favour of the defendant to the extent of half share.
14. Section 12(b) and (c) of the Hindu Adoptions and Maintenance Act, 1956, is reproduced below for the sake of convenience--
"12.....................
(a)......................
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to (he 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."
It is an admitted fact that Hukumchand died on 2-7-1979, i.e., after coming into the force of Hindu Succession Act of 1956. The plaintiff was the sole heir of Hukumchand and, therefore, inherited the property owned and possessed by Hukumchand. Mere adoption of Pradeep Kumar will not divest him of the property inherited by her from her husband. In Kesharbai v. State, AIR 1981 Bom 115, the following observation has been made :--
"By reason for Section 14 which converts the limited estate of the widow into full ownership, in the case of joint family property, the son adopted subsequent to the commencement of the Act by the widow would not take interest in her property and would not have any right of partition in respect of the property in the widow's hand, irrespective of the fact that it was joint family property before the commencement of the Act."
A full ownership conferred on a Hindu female under Section 14(1) is not defeasible by the adoption made by her to her deceased husband after the Act came into force. (Please see Punithavalli Ammal v. Ramalingam, AIR 1970 SC 1730). The case of the plaintiff here stands on a better footing. She has inherited the property of her husband as class-I heir and, therefore, entitled to full ownership over the property of her husband; and, as such, because of the subsequent adoption, she will not be divested of her right. The observations of their Lordships of the Supreme Court in the case reported in Dinaji v. Daddi, 1990 MPLJ 1, that adoption deed not being registered, it would not have the effect of divesting the adoptive mother of the property of which she had become the absolute owner, fully apply in this case also.
15. It has been admitted by the defendant in Para 22 of his statement that he was permitted by the plaintiff to open a shop in the suit 'kotha' and, therefore, the possession of the defendant would be deemed to be permissive. As observed above, burden lies on the defendant to prove his independent right of possession over the 'kotha'. His licence stands revoked by the notice referred above. '
16. The fact of second adoption of Anil Kumar is not relevant here. However, once the fact of adoption of Pradeep Kumar is accepted, the second adoption of Anil Kumar would automatically become void and illegal. Despite that, the defendant cannot hold the property of the plaintiff as of right.
17. It has been urged by the learned counsel for the respondent that the perpetual and irrevocable licence has been created in favour of the defendant because of adoption. I do not agree with this contention, as it wouid be defeating the provisions of Section 12(c) of the Hindu Adoption and Maintenance Act, 1956.
18. Learned counsel for the respondent has then submitted that the creation of licence is a question of fact and, therefore, it cannot be disturbed in second appellate stage. On perusal of the judgment of the first appellate Court, 1 find that in para 53 of the judgment, the learned appeliate Court has accepted Pradeep Kumar to be the co-owner of the property of Hukumchand which has been held by the plaintiff. This finding of the learned appellate Court is against the legal provision and this Court would, therefore, be perfectly justified in interfering with such a finding which is against the law.
19. It has further been contended by the learned counsel for the respondent that the 'kotha' was permanently alienated in favour of the defendant because of adoption and the right of the plaintiff extinguishes to that extent. In the absence of any registered document regarding the creation of right and interest in the immovable property, this contention cannot be accepted. It is, therefore, held that the possession of the defendant was permissive as a licensee which standsrevoked by the notice referred to above and, therefore, plaintiff is entitled to get back the possession.
20. Learned counsel for the respondent has then urged that if the defendant has opted the fact of adoption and has become the son of late Hukumchand and, therefore, the suit 'Kotha' should be allowed to remain in possession as his son. Since the defendant has no right to hold the property as a consequence of adoption, and neither the right of ownership nor co-ownership has been created in favour of the defendant, he cannot be allowed to remain in possession of the property against the wishes of the plaintiff, who has got full ownership over the property.
21. I, therefore, hold that after coming into force of the Hindu Succession Act, 1956, and Hindu Adoption and Maintenance Act, 1956, a widow has got absolute right over the property left by her husband. She has further right of adoption, but the adoptee shall not divest the property vested in the adopter and neither right of co-ownership nor co-heirship is created in the absence of any valid transfer in favour of the adoptee. The adoptee may be entitled to inherit the property if he or she dies intestate, but no vested right in the property is created during the lifetime of adopter.
22. The appeal, therefore, succeeds. The judgment and decree of the first appellate Court arc reversed and that of the trial Court are restored. The defendant shall deliver possession of the suit 'Kotha', as shown in the plaint map, within three months from today. Under the facts and circumstances of the case, the parties shall bear their own costs. Counsel's fee Rs. 300/-, if certified.