Rajasthan High Court - Jodhpur
Kailashchandra vs Sant Ramtaram Guru Sant Shri Bhagtaram on 30 May, 2017
Equivalent citations: AIR 2017 (NOC) 1060 (RAJ.)
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 (2 of 27) [CFA-317/2013] 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.
(3 of 27) [CFA-317/2013]
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 (4 of 27) [CFA-317/2013] 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 ?
(5 of 27) [CFA-317/2013] ... plaintiff.
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. (6 of 27) [CFA-317/2013]
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 (7 of 27) [CFA-317/2013] 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.
(8 of 27) [CFA-317/2013]
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 (9 of 27) [CFA-317/2013] 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 (10 of 27) [CFA-317/2013] 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 ;
(11 of 27) [CFA-317/2013]
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.
(12 of 27) [CFA-317/2013]
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 (13 of 27) [CFA-317/2013] 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 (14 of 27) [CFA-317/2013] 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 (15 of 27) [CFA-317/2013] 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 (16 of 27) [CFA-317/2013] 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 (17 of 27) [CFA-317/2013] 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 (18 of 27) [CFA-317/2013] 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, (19 of 27) [CFA-317/2013] 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 (20 of 27) [CFA-317/2013] 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 (21 of 27) [CFA-317/2013] 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.
(22 of 27) [CFA-317/2013]
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 (23 of 27) [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 (24 of 27) [CFA-317/2013] 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 (25 of 27) [CFA-317/2013] 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 (26 of 27) [CFA-317/2013] 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 (27 of 27) [CFA-317/2013] 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