Rajasthan High Court - Jodhpur
Smt.Shyama vs Prithvi Singh & Ors on 9 October, 2015
Author: P.K.Lohra
Bench: P.K.Lohra
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:JUDGMENT:
S.B.CIVIL FIRST APPEAL NO.314/2009
Smt.Shyama
Vs
Prithvi Singh & Ors.
Date of Judgment :: 9th October 2015
PRESENT
HON'BLE MR.JUSTICE P.K.LOHRA
Mr.Mahesh Thanvi for the appellant
Mr.S.M.Parihar with Mr.Vinay Shrivastava for respondent No.1
Dr.Sachin Acharya for respondent Nos.4 & 5.
Reportable BY THE COURT:
Unsuccessful in her pursuit for cancellation of adoption deed in favour of the first respondent and partition of property, a biological daughter of late Shivram Tak, the appellant-plaintiff has preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC').
The facts apposite for the purpose of this appeal are that appellant-plaintiff laid a civil suit for partition of the immoveable property, injunction and for declaration of adoption deed dated 16.06.1992 as nullity. By the said adoption deed, late Shivram Tak and his wife Shanti Devi adopted first respondent as their son. At the threshold, the suit was filed on 21.12.1998 wherein Smt.Shanti Devi, mother of the appellant was also arrayed as defendant and the first respondent herein in this appeal Prithvi Singh was arrayed as defendant No.2.
In the plaint, the appellant has averred that Smt.Shanti Devi is wife of late Shivram Tak and respondent Prithvi Singh is brother of Smt.Shanti Devi. The entire property owned by late Shivram Tak for 2 which partition is sought was mentioned in the plaint and description of the property in vernacular as made in the plaint reads as under:-
"कष भष :-
खसर नम र 07 रक 14 घ, रनड खसर नम र 08 रक 10 घ, रनड खसर नम र 111 रक 3 घ , न रन ड खसर नम र 110/1 रक 52 घ न रन ड अचल सपष :- (1) ज धपर शहर कत " षनमषलषख कन आय हय ह':- (अ) ण) र र ) पर क न षजसक प)*स षनम पक र स ह':- (1) उतर " :- ल ढ स ह क/ हवल । (2) दषकण " :- ष र ई ह र ज क स6 न (3) पर " :- रलव ल इन (4) पष9 " :- आ सडक। ( ) भखण) ) -2 प वट -2 र ), ज धपर " आय हआ ह' षजसक प)*स षनम पक र ह' :- (1) उतर " :- व द न क गल (2) दषकण " :- हररय ढ ण ठ कर क/ हवल । (3) पर " :- च षलस फ?ट क/ स)क (4) पष9 " :- षनम ) ठ कर स ह क/ हवल । (स) च*प सन र ) पर भवन व दक न" ज सवग@य षशवर ज न पष व द सखय द कन पर खर द क/, षजसक प)*स षनम पक र स ह' :- (1) उतर " :- गल 10 फ?ट क/ आग क न। (2) दषकण " :- च*प सन र ) (3) पर " :- आ स)क। (4) पष9 " :- भण) र स ह क पल ट।"
The appellant made a specific averment in the plaint that the entire property was purchased by late Shivram Tak at villages Boranada and Narnadi out of the income of the joint family and as such the appellant plaintiff and her mother are only two legal representatives to inherit the same. For other land property also, it is urged in the plaint that the same was purchased by late Shivram Tak out of income of joint family and, therefore, the appellant and her 3 mother are owners of the said property after his death. In substance, the appellant has emphasized that late Shivram Tak is survived by only two legal heirs and, therefore, both of them are entitled for equal share in the property.
Then switching on to dilating on some other facts, the appellant has pleaded that after the death of late Shivram Tak, the appellant, her mother and respondent Prithvi Singh mutually agreed to partition the entire property to avoid future cause of acrimony or litigation. The modalities of oral partition was also highlighted in the plaint with the specific assertion that as Smt.Shanti Devi and respondent Prithvi Singh are living together, both of them shall enjoy the said property and Prithvi Singh shall continue to serve Smt.Shanti Devi till she is surviving as she had already attained 88 years of age.
After narrating all these facts, the appellant-plaintiff straight away diverted the pleadings to question the registered adoption deed dated 16.06.1992. In order to assail adoption deed, the appellant has averred in the plaint that the said adoption deed was executed by late Shivram Tak on certain emotional considerations being impulsive and later on, he realised as per the legal advice that wife's brother cannot be adopted by an individual. As per the version of the appellant, adoption of brother-in-law looser is legally prohibited. Besides the ground of aforesaid embargo for adoption, the appellant has also set out a case that adoption as such is not in accordance with law inasmuch as at the time of execution of adoption deed, the respondent was major, married and having his own family. In that background, the appellant has sought a declaration that adoption deed dated 16.06.1992 be declared as null and void and a decree for 4 perpetual injunction be issued in her favour. For the property, description of which is incorporation supra, the appellant plaintiff has prayed for partition of the same by metes and bounds between the rival parties.
On behalf of first defendant, mother of appellant late Smt.Shanti Devi, written statement was filed. In her statement, Smt.Shanti Devi categorically denied execution of adoption deed by late Shivram Tak for disputing the status of the respondent Prithvi singh as her adoptive son.
The respondent - Prithvi Singh who was arrayed as defendant No.2 in the suit contested the suit by filing his detailed written statement. In the written statement, first respondent has asserted his status as adopted son of late Shivram Tak while refuting all the averments contained in the plaint in this behalf. While referring to the agricultural land situated at village Boranada and Narnadi, the first respondent has pleaded in the written statement that said land were purchased by late Shivram. The facts with respect to the property referred to in clause (b) of the plaint are not disputed. As regards, property mentioned in clause (c), the first respondent has stated in the written statement that the said property was purchased by late Shivram in the name of his wife Smt.Shanti Devi. The first respondent has joined issue with the appellant on the agricultural land by asserting that the said land was purchased by late Shivram out of the income jointly earned by late Shivram and the respondent as father and son and, therefore, after death of late Shivram, the first respondent and Smt.Shanti Devi are authorised to use the said agricultural land and appellant cannot claim any right vis-a-vis the aforesaid land. The first respondent has submitted in the written 5 statement that appellant got married in the year 1983 and since then she is living with her in-laws family and as such she cannot stake her claim for the property owned by late Shivram Tak. Projecting a very embellished version about the status of late Shivram Tak, as a contractor, the respondent has submitted in the written statement that he was a very big contractor who has undertaken work of many complicated and big projects of the government. The property situated at Chopasni Road as per the version of the first respondent was purchased by late Shivram in the name of his wife Smt.Shanti Devi. The facts pertaining to the property of late Shivram situated in Ram Mohalla where Om Prakash is residing are not disputed. In substance, the respondent has pleaded that after death of Shivram, he as well as Smt.Shanti Devi are entitled for the share in the property owned by late Shivram Tak.
Reiterating his status as son of late Shivram, the first respondent has submitted in the written statement that entire property was purchased by late Shivram Tak from his personal earnings and he was also rendering him valuable assistance in his business/profession as son. The first respondent has emphatically denied the claim of the appellant for partition of the property by refuting all the averments contained in the plaint. While countering allegations of the plaint about his status as adoptive son of late Shivram Tak, the first respondent has submitted in the written statement that he was living with late Shivram since his childhood as his adoptive son and both late Shivram Tak and his wife Smt.Shanti Devi always treated him as their son. In order to highlight the circumstances which led late Shivram to adopt the first respondent as his son, it is pleaded in the written statement that Smt.Shanti 6 Devi was his second wife and after many years of second marriage, when no issue was born to late Shivram Tak, he asked his father-in- law and mother-in-law to give the respondent in their adoption and thereupon biological father of the first respondent gave him in their adoption when he was hardly three years old. The respondent has also pleaded that since then he was living with late Shivram and he was brought up by him and also taken care about his studies. About late Shivram Tak, the first respondent has submitted in the written statement that he was very generous person and has donated huge sum for the social cause including construction of schools, hospitals etc. For substantiating factum of adoption, the first respondent has pleaded that in the year 1960 late Shivram Tak constructed the building of "Tak Shivram Nathji Rajkiya Madhyamik Pathshala" which was inaugurated on 26.08.1960 by the then Dy. Minister for Education, Rajasthan, Shri Poonam Chand Bishnoi and Speaker of Vidhan Sabha Shri Ram Niwas Mirdha and on the same day, late Shivram Tak adopted him as his son in presence of all the guests including some of the influential members of the community. Therefore, as per the version of the first respondent his valid adoption was carried out on 26.08.1960 itself when he was hardly 10-11 years old and even a dinner was also organized by late Shivram Tak on that occasion.
While referring to the pleading questioning the registered adoption deed dated 16.06.1992, the first respondent has averred in the written statement that requisite deed was executed by late Shivram out of his person volition and not impulsively or on emotional consideration. It is further submitted in the written statement that the requisite documentation was nothing but 7 reiteration of the adoption which was made way back in the year 1960. The first respondent has also submitted in the written statement that adoption deed was also signed by Smt.Shanti Devi voluntarily without any coercion or duress. Seriously disputing the positive assertion of the appellant that a brother-in-law looser cannot be adopted by an individual, first respondent has submitted that there is no legal embargo for such adoption. The respondent has also submitted in the written statement that he never raised any issue regarding the property of late Shivram Tak. Castigating the husband and father-in-law of the appellant, the first respondent has submitted that she is litigating under their influence as both of them have misled her to grab the property of late Shivram Tak. In substance, the first respondent has pleaded all the facts to prove a valid adoption in his favour by narrating some of the facts including the fact that his marriage was solemnized by late Shivram Tak. The respondent has also pleaded that late Shivram Tak executed a Will during his life time on 17.06.1992 wherein he has declared three legal heirs i.e., appellant, his wife Smt.Shanti Devi and first respondent and also distributed his entire property amongst his all the three legal heirs. As per the version of the first respondent, Shri Ashwini Kumar Bhatt and Dr.B.R.Vyas appended their signatures on the said Will as attesting witnesses.
The first respondent has set out a specific case in his written statement that said Will is in possession of the appellant but she has deliberately not mentioned the same in her plaint nor placed it on record. The first respondent has also attributed greed on the part of the appellant for grabbing property of late Shivram Tak and asserted that this litigation is an apt example of her unending greed 8 for the property. To counter the averments made in the plaint that suit has been filed for maintaining cordial and congenial relationship between the parties, the first respondent has submitted in the written statement that this litigation has in fact resulted in serious acrimony between family members and has vitiated a cordial atmosphere. The first respondent has staked his claim in the entire property as a co- sharer and submitted that appellant at her whims and fancy cannot deprive him from his legitimate right to claim his share in the property. The valuation of the suit is also disputed by the first respondent with a positive assertion that court fee paid by her is inadequate. The right of the appellant to question a registered adoption deed is also seriously challenged in the written statement by the respondent. Asserting that suit filed by the appellant is barred by limitation, the first respondent craved for dismissal of the suit. That apart, certain other technical objections about verification of the pleadings are also incorporated in the written statement with a prayer to non-suit the appellant.
The appellant thereafter submitted proposed subsequent pleadings alongwith application under Order VIII Rule 9 CPC to refute some of the averments contained in the written statement and also reiterated the facts averred in the plaint. As a matter of fact, in the proposed rejoinder, the appellant made an attempt to project an embellished version of the averments contained in the plaint with full emphasis for cancellation of the adoption deed. In that background, the learned Trial Court while considering her prayer under Order VIII Rule 9 read with Section 151 CPC by its order dated 09.01.2004 accepted her additional pleadings only with respect to para nos.3,4 and 5 of the proposed rejoinder and rest of the pleadings was not 9 allowed to be taken on record. In this view of the matter, in terms of the order dated 09.01.2004, the appellant submitted her rejoinder which was taken on record.
The learned Trial Court on the basis of pleadings of the rival parties framed following issues for determination:-
"6- पकक र न क उपयCक अषभवचनE क आध र पर नय य लय द र
षनम Hफक षवव दक षवरषच फकय गय :
1. पJर -2 व दपत " वरण समपष य H क षशवर क/ सयक
पररव र क/ हJ?
2. कय पJर -5 व दपत " वरण नस र व दग समपष पर
अपन अश व फदन प व स Hकन प6क करव कर कबज
प प करन क/ अषधक र हJ?
3. कय पकक र न क धय षनषप फद ग दन फदन Hक
16.6.92 शनय एव षनषपभ व हJ?
4. कय पJर -4 उजर ज द षलषख क6न पष व द स.2 "
वरण नस र व द ख ररज फकय ज न य गय हJ?
5. कय व द क/ षव यवस कष भष ह न क क रण इस
नय य लय क कत षधक र नहS हJ?
6. अन ?
अष ररक षवव दक
1. आय व फदन द र ग दन षनषपभ व घ ष करन
स ध पस द व ज षहर ष य द हर ह न स क ष ल चलन क नहS
हJ?
2. आय व दकरण क अभ व " व फदन क द व चलन य गय
नहS हJ?"
During the pendency of suit, the first defendant Smt.Shanti Devi passed away and, therefore, at the request of the appellant, her name was deleted from the array of defendants.
For substantiating her case, the appellant herself appeared in the witness box and also examined one more witness PW-2 Om Prakash. With a view to authenticate his defence, the first respondent himself appeared in the witness box as DW-1 and also examined DW-2 Thanpat Singh and DW-3 Dr.B.R.Vyas. DW-3 Dr.B.R.Vyas was examined as attesting witness of registered adoption deed.10
The learned Trial Court after hearing the rival parties and considering available material at the threshold examined the crucial issue i.e. issue No.3 pertaining to validity of adoption deed. After considering the matter in its entirety in conjunction with the evidence, the learned Trial Court decided the said issue against the appellant and in favour of first respondent. Relying on the findings and conclusions on issue No.3, the learned Trial Court decided issue No.1 and 2 simultaneously and by treating the appellant and the first respondent as surviving legal heirs of late Shivram Tak, partitioned the entire suit property with half and half share each for both by metes and bounds.
Switching on issue No.4 which was settled on the basis of additional plea of the first respondent and so also issue No.5 were decided against the first respondent for want of any evidence tendered on his behalf. The additional issue No.1 pertaining to limitation on overall analysis is decided by the learned Trial Court against the appellant and in favour of the first respondent. The additional issue No.2 which was settled on the strength of pleadings of the first respondent is decided against the first respondent. In totality, the suit filed by the appellant is partly decreed inasmuch as the suit qua relief of cancellation of adoption deed is dismissed but it was decreed for partition with apportionment of equal shares for both by metes and bounds and as a consequence thereof, the learned Trial Court passed preliminary decree of partition.
The appeal was admitted on 28.05.2009 and subsequent thereto on 03.07.2009, the impugned preliminary decree was stayed. Later on, the Court passed restraining order against the appellant on 04.11.2009 not to alienate the property in question. 11
An attempt was made by the appellant seeking modification of the interim order dated 03.07.2009 and thereupon the Court passed the folowing order on 03.05.2011:-
"Heard.
The respondent has filed application being IA No.14306/2009 under Section 151 C.P.C. seeking modification of exparte order dtd.3.7.2009 by which the coordinate bench of this Court stayed the effect and operation of the judgment and decree dtd.31.3.2009. The suit was partly decreed in favour of the plaintiff-appellant. However, to the extent of cancellation of adoption-deed dtd.16.6.1992, the suit was rejected. Hence this appeal has been filed by the plaintiff.
The respondents have prayed that exparte interim order deserves to be vacated/modified as the plaintiff- appellant under the garb of this order has filed suit for eviction against the tenants of the properties and some of the properties, namely, agricultural land has been sold by the plaintiff without bringing this fact to the knowledge of the Court.
Reply to the said application has been filed by the learned counsel for the appellant Mr.J.R.Beniwal and he has submitted that the appellant had right to dispose of the property in question as there was no restraint order against them and transfer if any made after 21.2.2007 is subject to doctrine of lis pendens under Section 52 of the Transfer of Property Act.
Having heard the learned counsel, this Court is of the opinion that transfer if any made during the pendency of present appeal shall be subject to final decision of this first appeal. As far as other challenges to alienation or gift deed, eviction matters etc. are concerned, for that the respondents / defendants are at liberty to take legal recourse by separate proceedings.
The application being IA No.14306/2009 is accordingly disposed of."
It appears that modification of interim order became a cause of grievance for the respondent and that prompted him to file Special Leave Petition before the Hon'ble Apex Court. Hon'ble Apex Court vide its order dated 07.07.2011 passed following order:-
"Issue notice.
Until further orders, the parties are directed to maintain status quo, as of today, with regard to the suit properties."
Before the Hon'ble Apex Court, endavour was made by respondent Nos.4 & 5 for being impleaded as parties but their prayer was declined and SLP was disposed of on 25.10.2013 by 12 following order:-
"Heard learned counsel for the parties.
We direct that the status quo order granted by this Court at the time of issuance of notice on 7.7.2011 shall continue during the pendency of the proceedings in the High Court.
With the above observation, the special leave petition is disposed of.
The application for impleadment as party respondent is dismissed."
Although the prayer of respondent Nos.4 & 5 for their impleadment as party respondents in Special Leave to Appeal (Civil) No.15876/2011 preferred by the first respondent proved abortive but thereafter at their instance an application under Order I Rule 10 read with Order XXII Rule 10 CPC is filed before this Court for their impleadment as party respondents. In the application, it is, inter alia, averred by the respondent Nos.4 & 5 that they are necessary and proper party being bona fide and subsequent purchasers of agricultural land measuring 20 bighas and 9 biswas of Khasra No.110 1/1 and Khasra No.111 village Narnadi Upper Tehsil Jhanwar Tehsil Luni District Jodhpur from the appellant Smt.Shyama. It is also submitted in the application that appellant being daughter of late Shri Shivram Tak has sold the said land which was part of her share. Subsequent mutation of land in question in their favour is also cited as the reason for impleadment as party respondent. Conversion of agricultural land to industrial plot in terms of Section 90-B of Rajasthan Land Revenue Act, 1956 and re- allotment of the same then by a registered lease deed by Jodhpur Development Authority on 11.08.2008 and on 27.07.2010 are also mentioned as some of the facts significant and germane to the matter strengthening their case for impleadment as party respondent.
13
The application submitted on behalf of respondent Nos.4 & 5 is not opposed by the appellant for obvious reason as she was predecessor-in-title. However, first respondent joined the issue with the respondent Nos.4 & 5 and submitted reply to the application and opposed the prayer made therein. In the reply, the first respondent has also invoked Section 52 of the Transfer of Property Act, 1882 and submitted that transfer of agricultural land during pendency of the suit without permission of the Court is void. Moreover, it is also averred that the so-called title of the appellant Smt.Shyama was also under cloud inasmuch as the testamentary instrument executed by Smt.Shanti Devi in her favour has not conferred any title on her to transfer the land during the life time of the testator herself Smt.Shanti Devi. In that background, all other subsequent events including conversion of agricultural land into industrial land under Section 90-B of the Rajasthan Land Revenue Act, 1956 are also categorized as insignificant so as to confer any title on the respondent Nos.4 & 5.
The application of the respondent Nos.4 & 5 (IA No.758/2015) came up for consideration before the Court on 24.02.2015 and after hearing the rival parties, the said application is allowed and both respondent Nos.4 & 5 were imlpleaded as party respondents. The order dated 24.02.2015 reads as under:-
"The matter comes up on application (IA No.758/2015) filed on behalf of applicants, Ms. Megha Bhandari and Smt. Shakuntala Bhandari, under Order 1 Rule 10 read with Order 22 Rule 10 and Section 151 CPC seeking their impleadment as party-respondents in the present first appeal filed by the plaintiff/appellant, Smt. Shyama W/o Sh. Deepak Singh Gehlot against the respondent No.1/defendant, Prithvi Singh S/o Heer Singh.
Dr. Sachin Acharya, learned counsel appearing on behalf of applicants submits that they have purchased the portion of the agricultural land from the appellant/plaintiff, therefore, they have interest in the present lis and sought their impleadment in the present present appeal.
Mr. Mahesh Thanvi, learned counsel for the appellant/plaintiff does not object to the same. 14 Mr. S.M. Parihar, learned counsel appearing for the respondent No.1/defendant, however, submits that the present suit has been filed for cancellation of the registered adoption-deed in favour of Prithvi Singh, having been adopted by late Sh. Shivram Tak, therefore, the application (IA No.758/2015) for impleadment need not be allowed. He also brought to the notice of the Court that against the stay order granted to the plaintiff/appellant on 03.05.2011, the respondent No.1/defendant had filed an Special Leave to Appeal (Civil) No.15876/2011, which was, however, disposed of by the Hon'ble Supreme Court on 25.10.2013 directing that status quo granted by the Hon'ble Supreme Court at the time of issuance of notices on 17.07.2011 shall continue during the pendency of the present first appeal before High Court. However, the application filed by the present applicants for impleadment before the Hon'ble Supreme Court was dismissed by the Hon'ble Supreme Court. The copy of the said order dated 25.01.2013 is taken on record.
Dr. Sachin Acharya, learned counsel for the applicants submits that the stay order of Hon'ble Supreme court would not affect the present applicants, since the Hon'ble Supreme Court had only directed the status quo to be maintained during the pendency of the present first appeal but since the applicants had purchased a small portion of the agricultural land in question from the appellant/plaintiff on 16.10.2004 and 02.05.2005 much prior to grant of status quo order on 17.07.2011, therefore, the present applicants deserve to be impleaded as party respondents in the present first appeal for safeguarding their interest in the present litigation.
Having regard to the submissions made by the learned counsel for the parties, this Court is of the opinion that the applicants have stepped into the shoes of the appellant/plaintiff, Smt. Shyama, to the extent of the land purchased by them from the plaintiff irrespective of the claim of Mr. Prithvi Singh, against whom the present suit for cancellation of his adoption-deed in the present first appeal by the appellant/plaintiff is pending, and the plaintiff/appellant, Smt. Shyma, may get her share in the property, even if she does not succed in this appeal, much more than the portion of the agricultural land transferred by her to these applicants under the registered sale instruments on 16.10.2004 and 02.05.2005 and, therefore, the interest of the present applicants deserves to be safeguarded by impleading them as party-respondent in the present first appeal of the plaintiff as they have an interest created in their favour by the appellant/plaintiff and they appear to be necessary and proper parties to be impleaded in this appeal.
Accordingly, the application (IA No.758/2015) for impleadment under Order 1 Rule 10 of the Code of Civil Procedure is allowed. The applicants, Ms. Megha Bhandari & Smt. Shakuntala Bhandari, are allowed to be arrayed as party-respondents. Amended cause title be filed by the learned counsel for the appellant within a period of two weeks, which upon filing, be taken on record and be placed at appropriate place in the case file.
Put up the appeal itself for hearing on 19.03.2015, as prayed."15
The appellant while laying the instant appeal before this Court also submitted an application under Order XLI Rule 27 read with Section 151 CPC for taking additional evidence on record. Alongwith the application, a Will dated 11.10.2010 and gift deed dated 21.02.2007 executed by Smt.Shanti Devi in favour of the appellant are also enclosed and a prayer is made for taking them on record. In the application, it is, inter alia, averred that the Will executed by late Smt.Shanti Devi in favour of the appellant is duly registered with the Sub-Registrar, Jodhpur and by the said Will, she has transferred some of the properties to the appellant which was her self acquired. As regards gift deed it is submitted that the same pertains to the property situated at Chopasni Road which was also self acquired property of Smt.Shanti Devi and as such being registered instrument, the same is liable to be taken on record.
For belated presentation of both these documents at the appellate stage, the appellant has averred in the application that although at her behest endavour was made to apprise the learned Trial Court about these documents but the same could not be produced before the learned Trial Court due to her unawareness about the legal proceedings and the possible implication of these documents on the lis involved in the matter. A plea is also sought to be raised that appellant is a low literate lady and, therefore, she had no knowledge as to what steps are to be taken for placing these documents on record. The appellant has also pleaded that she came to know about the relevance and importance of the documents when she contacted her counsel and that being so these documents are filed with the application for craving leave of the Court to take them on record. The relevance and significance of the document is 16 also sought to be projected in the application by the appellant by urging that both these documents are required to be taken on record to decide the controversy involved in the matter and by examining these documents, the Appellate Court can very conveniently go to the root of the matter to decide the lis involved in the matter.
The application is opposed by the first respondent tooth and nail by submitting reply to the same. In the preliminary objection, it is submitted that the appellant had knowledge about both these documents but she has deliberately not produced them before the learned Trial Court when the proceedings were going on by concealing these documents. Therefore, at this belated stage, these documents are not liable to be taken on record. It is also submitted by the first respondent that respondent Nos.4 & 5 alongwith their application under Order I Rule 10 read with Order XXII Rule 10 CPC annexed certain sale deeds which were executed by the appellant in their favour on the basis of alleged registered partition deed, which though not placed on record but even if it exists is void being de hors the law. The first respondent has also casted aspersion on the appellant by submitting that the so-called documents which were got executed by late Smt.Shanti Devi in her favour were under duress and undue influence inasmuch as Smt.Shanti Devi had no knowledge about execution of all these documents. To fortify this assertion, the respondent has pleaded that the registered partition deed was brought into existence on 11.11.1999 and on the strength of the same, the appellant has transferred the agricultural land by a registered instrument to respondent Nos.4 & 5 on 16.10.2004 despite pendency of the civil suit filed by her. In substance, the first respondent has stated with full emphasis that appellant has 17 concealed all these documents from him as well as learned Trial Court. By making all these allegations in the reply, the first respondent has questioned the credentials of the appellant, who according to the respondent, has no respect for the courts of law. It is also submitted in the reply that the appellant has approached the learned Trial Court as well as this Court with tainted hearts and has deliberately concealed these documents from the learned Trial Court despite having knowledge about the same and as such these documents are not liable to be taken on record in the form of additional evidence. Some of the objections are also raised about the reliability and authenticity of documents by submitting that late Smt.Shanti Devi never executed these documents consciously but rather under duress and coercion. The first respondent has also pleaded that no plausible reasons are forthcoming from the application for producing additional evidence at the appellate stage within the four corners of Rule 27 of Order XLI CPC and, therefore, application merits rejection. The academic status of the petitioner is also seriously disputed and it is further averred that the documents in question were executed in presence of her husband who is a Software Engineer, therefore, per se, it is unbelievable that she was unaware about the existence of these documents when trial of the suit was going on.
In totality, the first respondent has specifically pleaded that both these documents were intentionally not brought to the notice of the learned Trial Court and, therefore, it is not permissible under the law to take these documents on record at the appellate stage. The respondent has submitted that the whole endavour of the appellant for seeking permission to produce additional evidence is to fulfil the 18 lacuna in her case with the sole object of seeking de novo trial which is not permissible under the law. The relevancy of the documents is also seriously questioned in the reply by stating that these documents are not at all relevant for the disposal of the appeal.
Before examining the impugned judgment on merits, it would be appropriate to first consider the application of the appellant for taking additional evidence on record under Order XLI Rule 27 CPC.
Mr.Mahesh Thanvi, learned counsel for the appellant submits that the additional evidence sought to produced by the appellant is very much relevant for the adjudication of the lis involved in the matter and, therefore, both these documents are liable to be taken on record by invoking Order XLI Rule 27 CPC. Mr.Thanvi submits that Will of her self acquired property executed by late Smt.Shanti Devi in favour of the appellant relates back to the year 2000 and after her death in May 2008, the appellant has made endavour to place it on record at the earliest possible opportunity, therefore, delay, which has occasioned is, bona fide and the Will is liable to be taken on record at the appellate stage. Learned counsel would contend that other document gift deed dated 21.10.2007 by late Smt.Shanti Devi in favour of appellant is of her self acquired property and, therefore, the said document is also very much relevant and is liable to be taken on record at the appellate stage. Mr.Thanvi while elaborating his submissions has urged that appellant despite her due diligence has not been able to place these documents on record and further she was ignorant about these documents. Learned counsel, therefore, submits that she has made endeavour to place these documents on record at the earliest by laying requisite application alongwith memo of appeal and, therefore, 19 a liberal and pragmatic approach of the Court is desirable in the matter for taking additional evidence on record. Lastly, learned counsel submits that the additional evidence sought to be placed on record by the appellant is significant and relevant to enable the Court to pronounce the judgment and the documents in question are also necessary for advancement of substantial cause of justice. In support of his contention, learned counsel for the appellant has placed reliance on the following legal precedents:-
(1) State of Rajasthan Vs. T.N.Sahani & Ors., (2001) 10 SCC 619 (2) Billa Jagan Mohan Reddy & Anr. Vs. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659 (3) Jai Mangal Oraon Vs. Mira Nayak (Smt) & Ors., (2000) 5 SCC 141 (4) Shyam Gopal Bindal & Ors. Vs. Land Acquisition Officer & Anr., (2010) 2 SCC 316 (5) Shiv Ratan Gupta Vs. Smt.Kamla Devi & Ors., 2014(1) WLN 251 (Raj.) (6) Union of India Vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 In State of Rajasthan (supra), Hon'ble Apex Court while considering the provisions of Order XLI Rule 27 CPC has held that the said application is required to be decided alongwith appeal and if the Court considers that the documents are necessary to pronounce the judgment in the appeal in a more satisfactory manner, the same may be allowed or otherwise the same would have to be dismissed at that stage only.
In Billa Jagan Mohan Reddy (supra), in the peculiar facts of the case, Hon'ble Apex Court opined that Appellate Court can receive additional evidence if it considers to be needed in the interest of justice. The Court held,-
"4........ These documents were not in the possession or custody of the appellants, but they have obtained certified 20 copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law."
In Jai Mangal Oraon (supra), Hon'ble Apex Court opined that when subsequent events are relevant, germane and vitally important in effectively deciding the issues involved, they ought to be taken into consideration even at appellate stage without considering rigour of Order XLI Rule 27 in abstract sense. Hon'ble Apex Court held,-
"12. We have carefully considered the submissions of the learned counsel appearing on either side. The details relating to some of the subsequent developments brought on record in the shape of the relevant orders passed by the competent authorities disclose a disturbing picture bordering on gross misuse and abuse of process of court involving serious criminal offences too. It is rather surprising that at a place where he had to face a factual inquiry the appellant seems to have gone underground to avoid the arms of law taking its course but continue to fight in absentia in this Court. We do not propose to indict the appellant for all such misdeeds ourselves since, law in due course will take care of the situation, as it deserves. Such vital facts now coming to light, which are not only grave and serious but also go to the root of the matter, undermining the very basis of his claims and even locus standi or right to agitate before courts in relation to the property in question, cannot be totally ignored to permit perpetuation of grave injustice and abuse of process of court. Those facts themselves constitute, in our view, sufficient ground to dismiss these appeals. It is by now well settled that even subsequent developments or 21 facts and turn of events coming into existence but found really relevant, genuine and vitally important in effectively deciding the issues raised and necessary to do real, effective and substantial justice or prevent miscarriage of justice not only can but ought to be taken into consideration by courts even at the appellate stage. Apparently, developing cold feet on this account only an alternate submission has been made that in any event the first respondents being non-tribals cannot be allowed to hold or retain the property and it has necessarily to be allotted to any other tribal only by the Deputy Commissioner. Though we propose to deal with the other issues raised, having regard to the important nature of the issues raised, these appeals, in our view, have to fail even on the basis of the subsequent developments noticed, which dis-entitle the appellant to claim or assert any rights in the lands in question. Even though this is an additional ground taken at this stage as it is serious one which dis-entitles the appellant to seek any relief on the ground that he is adopted son of Sukhi Oraon, (Sukhi Oraon was son of deceased-tenant Nanda Oraon), we have considered the same. The said contention is based upon judicial orders passed by the competent courts ordinary as well as special constituted by the statute with powers to adjudicate disputed question of fact and no effective reply denying the existence of those orders was filed by the appellant all these years."
In Shyam Gopal Bindal (supra), Hon'ble Apex Court granted indulgence to the plaintiff to produce documents at the appellate stage which were the basis of his claim made in the civil suit as necessary for just decision of the case. The Court held,-
"11. It further appears that none of the issues have been decided by any of the courts below, on merits. All decisions have proceeded on the basis that the plaintiff/appellants have failed to produce evidence in support of their claim. The application was not examined keeping in view the principles laid down in Order 41 Rule 27 of the Civil Procedure Code. The documents sought to be produced are judicial orders declaring the ownership rights of the appellants, that have a crucial bearing on the merits of the claim put forward by the appellants. It was pleaded by the appellants that original plaintiff having died during the pendency of the civil suit the documents could not be brought on record as they were not aware of the orders. A prayer was duly made before the appellate court which was repeated before the High Court for remanding the matter with an opportunity to adduce the additional evidence. In the facts and circumstances of this case, we are of the opinion that the Appellate Court as also the High Court erred in law in not accepting the application for additional evidence and not remanding the matter back to the trial court."22
In Union of India (supra), Hon'ble Apex Court discussed the powers of the Appellate Court under Order XLI Rule 27 threadbare and observed that in the matter of allowing additional evidence, the Appellate Court can exercise its discretion to allow production of in exceptional circumstances. The Court also passed the word of caution that such power should be exercised judicially and with circumspection only where any of the pre-requisite condition provided under Rule 27 exists. Hon'ble Apex Court has given latitude to the Appellate Court for allowing production of additional evidence at the appellate stage if the additional evidence is found to have important bearing on the main issue or found to be necessary to remove any lacunae in evidence and in clearing any doubt for pronouncing judgment and required in the interest of justice.
Per contra, learned counsel for the first respondent Mr.S.M.Parihar with Mr.Vinay Shrivastava submits that the application under Order XLI Rule 27 of the appellant is absolute vague, cryptic and unspecific and, therefore, the same is not tenable within the four corners of clause (a) and (aa) of Rule 27(1) of Order XLI CPC. He, therefore, submits that such application cannot be allowed for mere askance without proper pleading. Learned counsel would contend that the additional evidence sought to be produced at the appellate stage was very much available with the appellant- plaintiff through out the trial and, therefore, in want of any explanation much less plausible explanation for not producing these documents before the learned Trial Court , it is not desirable for this Court to exercise discretion in favour of the appellant. Learned counsel would contend that the application is conspicuously silent and bereft of material particulars as to how and in what manner 23 these documents are necessary for adjudication of the appeal, which itself is sufficient to non-suite the appellant. Learned counsel for the respondent has also referred to ground (f) and (g) of the memo of appeal wherein there is a reference of the registered Will of late Smt.Shanti Devi in favour of the appellant, but, according to the learned counsel, during her evidence before the learned Trial Court which continued from the year 2005 to 2008, she has not whispered a word about the execution of the Will or Gift Deed which itself is sufficient to conclude that documents were in her knowledge but intentionally they were not produced before the learned Trial Court and, therefore, no indulgence can be granted to the appellant at the appellate stage. Elaborating his submission in this behalf, learned counsel has urged that the appellant has not approached this Court with clean hands and, therefore, no indulgence be granted to her under Order XLI Rule 27 CPC. In support of his contention, learned counsel for the respondent has placed reliance on following precedents:-
(1) Government of Karnataka & Anr. Vs. K.C. Subramanya & Ors., (2014) 2 Civil Court Cases 232(SC) (2) Dharmendra Vs. Shankarlal & Ors., 2010(4) RLW 3530 (Raj.) (3) Union of India Vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 In Government of Karnataka (supra), Hon'ble Apex Court while considering the provisions of Order XLI Rule 27 CPC for taking additional evidence at the appellate stage observed that additional evidence can be allowed only when evidence sought to be produced could not be produced at the stage of the trial inspite of exercise of due diligence and that evidence could not be produced as it was not within the knowledge of the party. The Court held that,- 24
"6. On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.
7. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will.
8. In the instant matter, the appellants are a public authority and has sought to produce a road map which, it is unbelievable, was not within the knowledge of the appellants indicating a road to the disputed land. Therefore, the rejection of the application of the appellants to rely on the said map has rightly not been entertained at the stage of first appeal. The impugned order thus do not suffer from legal infirmity so as to interfere with the same."
Learned Single Judge of this Court in Dharmendra (supra) declined to take additional evidence on record under Order XLI Rule 27 at the appellate stage when such evidence was not admitted by the Trial Court. The Court held,-
"19. The reliance placed by the learned counsel for the petitioner on the case Lachhman Singh (Deceased) Through LRs (Supra) is highly misplaced. In the case of Lachhman Singh (Deceased) Through LRs (Supra), the entire issue was whether the suit filed was within the period of limitation or not ? Since the suit was for redemption of the mortgage of 1913 and the suit was filed on 30.12.1970, therefore, the deed of mortgage was absolutely essential for calculating the period of limitation. It is in these peculiar facts and circumstances of the case that the Hon'ble Supreme Court had observed that "the High Court has erred in rejecting the application under Order 41 Rule 27 CPC". In fact, a bare perusal of para 18 of the report clearly reveals that the Hon'ble Supreme Court had observed that "we are of the opinion that keeping in view the peculiar facts and circumstance of this case, the respondent should be permitted to adduce the evidence". Hence, the Hon'ble Supreme Court did not lay down a universal principle that in every case an application under Order 41 Rule 27 CPC is filed, it should be allowed ipso facto by the appellate court.
20. In the case of Muncipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay & Ors. [AIR 1965 SC 1008], the Hon'ble Supreme Court has observed that though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 25 Rule 27 CPC, the requirement of the said court must to be limited to those cases where it found to be necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where, even without such evidence, it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. This observation of the Hon'ble Supreme Court has been approved and relied upon by the Apex Court in the case of Mahendra Kumar Parshottam Bai Desai (Dead) by LRs (Supra). It has also been the consistent view of the Hon'ble Supreme Court as reflected in catena of cases that power under Order 41 Rule 27 CPC cannot be invoked by a party so as to fill in the lacunae left by the party during the trial. In the present case, since the petitioner had ample opportunities to submit the copy of the registry, he cannot invoke the power to fill in the gaps left by him in the trial."
In Union of India (supra), on which learned counsel for the appellant has also placed reliance, Hon'ble Apex Court discussed the powers of the Appellate Court under Order XLI Rule 27 with clarity and precision and held,-
"36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwaralal and Syed Abdul Khader v. Rami Reddy).
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohamed Iqbal and Mohamed Ali and Co.)
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said 26 court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. [Vide Lala Pancham.]
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam).
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment."
I have bestowed my consideration to the arguments advanced by the rival parties and also examined the application under Order XLI Rule 27 CPC as well as its reply by the respondent in conjunction with the lis involved in the matter.
The legislature in its wisdom has conferred power on the Appellate Court permitting the parties to an appeal for production of additional evidence whether oral or documentary at the appellate stage. However, such power of the Appellate Court is subject to the restrictions and is to be exercised within four corners of Rule 27 of Order XLI CPC. The provisions as such have not been engrafted in 27 the code so as to patch up the weak points in the case and to fill up the omission in the court of appeal - it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction conferred on the Appellate Court to let in fresh evidence is restricted with the solemn object to enable the Appellate Court to pronounce judgment in the appeal.
Therefore, in that background, the first and foremost consideration for the Appellate Court to permit any party to the litigation craving leave of the Court for production of additional evidence is to be examine the averments made in the application. In that background, if the averments of the application are scrutinized then, it would ipso facto reveal that the same is bereft of any material particular so as to satisfy the requirements envisaged under Rule 27 of Order XLI CPC. On the face of it, the averments of the application are not inspiring confidence so as to exercise the discretion conferred on this Court under the aforesaid provisions. Although the application submitted by the appellant is conspicuously silent about the requirements of Order XLI Rule 27 CPC but the learned counsel for the appellant has made sincere endeavour to canvas his arguments with full emphasis and has also attempted to clarify the averments by projecting an embellished version. This sort of situation has persuaded this Court to examine the application of the appellant on merits.
Upon recapitulation of the factual backdrop of the case, it clearly emerges out that in the suit, the appellant-plaintiff prayed for relief of partition of the property and cancellation of regisetered adoption deed in favour of first respondent with perpetual injunction. The description of the entire property which was subject matter of 28 the suit is mentioned in the plaint with clarity and precision. In the original plaint, mother of the appellant Smt.Shanti Devi was first defendant but unfortunately she passed away during the pendency of the suit and her name was deleted from the array of defendants at the request of the appellant. After deletion of Smt.Shanti Devi from the array of defendants, the lis obviously survived between the appellant and the first respondent -Prithvi Singh. There is absolutely no quarrel in the factual position that appellant is biological daughter of late Shivram Tak and Smt.Shanti Devi and status of the first respondent is their adoptive son which the appellant has disowned and has made endeavour for cancellation of the registered instrument for adoption deed. From the record of the case, it is amply clear that Smt.Shanti Devi submitted her written statement and participated in the proceedings of the suit uptil her death. Interestingly, the additional evidence i.e. Will executed by Smt.Shanti Devi in favour of the appellant did not find mention in the written statement of Smt.Shanti Devi though the said Will was anterior to the written statement submitted by her.
Well it is true that Smt.Shanti Devi has disowned the adoption deed in favour of first respondent but instead of pleading a vital fact that she has executed a testamentary instrument in favour of appellant, she has referred some partition deed. After examining the entire record of the case, it is crystal clear that no such partition deed is available on record. Therefore, prima facie, it appears unbelievable that even the testator herself was unaware about the execution of Will in favour of appellant.
There is yet another aspect of the matter that the alleged testamentary instrument was executed by Smt.Shanti Devi during 29 the pendency of suit which is duly registered was not within the knowledge of the appellant. Even the recitals in the registered Will are also suggestive of the fact that the said Will came into offing due to some developments within the family or the internal bickerings. This fact is clearly reflected from the recitals in the Will inasmuch as it postulates cancellation of earlier registered Will by Smt.Shanti Devi in favour of first respondent Prithvi Singh. On the registered Will, photograph of the appellant is also affixed and the receipt issued by the Sub-Registrar, Jodhpur also bears the date of 12.10.2000. After death of Smt.Shanti Devi, proceedings in the suit continued for almost ten months and at that time, evidence of the appellant was going on. From the record also, it is crystal clear that cross- examination of the appellant was completed on 08.12.2008 and thereafter one more witness Om Prakash was examined. During this period, the appellant was well within her right to produce the additional evidence which she is now desirous to produce before this Court. There appears to be no plausible reason for non-production of the additional evidence/documents before the learned Trial Court when evidence of the appellant was going on and trial of the suit was in vogue.
Now switching on to the other document which is sought to be produced by the appellant as additional evidence, suffice it to observe that the same is a gift deed executed by Smt.Shanti Devi in her favour donating some of the immoveable property allegedly owned by her. The gift deed is a bilateral document which is signed by both doner and donee and as donee is signed by the appellant herself. By virtue of Section 17 of the Indian Registration Act, a gift deed is compulsorily registerable document and, therefore, presence 30 of the appellant as donee at the time of execution and registration of the gift deed cannot be ruled out. It is per se unbelievable that appellant was ignorant about the execution of gift deed in her favour. Transfer of a property by a gift deed comes into effect from the date of its execution conferring title on the donee of the said property. In these circumstances, if the gift deed is examined, then it would ipso facto reveal that the same was executed by late Smt.Shanti Devi on 21.02.2007 which ought to have been placed on record before the learned Trial Court by the appellant during pendency of the suit. Pleading ignorance about execution of gift deed in her favour by the appellant is ex facie a version of the appellant which cannot be countenanced on the principles of prudency. As such belated presentation of gift deed at the appellate stage without any cogent and convincing reasons within the meaning of Rule 27 of Order XLI CPC cannot be accepted inasmuch as it is a clear case of total negligence and apathy on the part of the appellant.
The additional evidence sought to be produced which are Will and Gift Deed purported to be executed by Smt.Shanti Devi for her self acquired property, on the face of it, appears to be quite alluring but not of substance inasmuch as the said property is also subject- matter of the suit for partition laid by appellant wherein originally Smt.Shanti Devi was also a defendant. In the considered opinion of the Court, the endeavour of the appellant appears to divide the property in three parts during life time of Smt.Shanti Devi so that eventually she (appellant) may get total two-third share in the property but when the proceedings in the suit prolonged and there was no possibility of the decision of the suit in near future during life 31 time of Smt.Shanti Devi, the alleged Will and Gift Deed came into offing by sheer manipulation clandestinely.
The law on the point is no more fluid that under Order XLI Rule 27, power of the Appellate Court is not loathed so as to take additional evidence on record but then, the said power cannot be exercised for filling lacunae or gaps in the evidence. In totality, the appellant has miserably failed to make out a case to allow her to produce additional evidence at the appellate stage within the four corners of sub-rule (1) of Rule 27 of Order XLI CPC.
Upon cumulative reading of the ratio decidendi of the legal precedents on which the rival parties have placed heavy reliance, discretion conferred on the Appellate Court for taking additional evidence on record is to be exercised in exceptional circumstances and the same should be exercised judicially and with circumspection only where any of the pre-requisite condition provided under Rule 27 exists. The observations made in the judgments of Hon'ble Apex Court in this behalf are clear and unequivocal. Moreover, looking to the nature of the suit and the evidence tendered by the rival parties which facilitated the impugned judgment unhesitantly, in my view, the additional evidence sought to be produced by the appellant is not at all necessary for the purpose of pronouncement of judgment in this appeal. It is needless to observe here that there is no material placed on record by the appellant to show that she was unable to produce any evidence before the learned court below despite exercise of due diligence.
That being the situation, the application under Order XLI Rule 27 CPC does not find favour from this Court and the same is hereby rejected.
32
Now, the impugned judgment requires judicial scrutiny on merits.
Learned counsel for the appellant Mr.Mahesh Thanvi has strenuously urged that adoption deed is de hors the mandatory provisions of Section 6 & 7 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the Act of 1956'). Mr.Thanvi submits that a bare perusal of the adoption deed makes it crystal clear that there is no proper ceremony of giving the first respondent in adoption by his biological parents. Elaborating his submission, Mr.Thanvi has urged that at the time of execution of adoption deed, biological mother of Prithvi Singh was alive but there is no recital in the adoption deed showing her consent to give first respondent in adoption to late Shivram Tak and Smt.Shanti Devi. Learned counsel would contend that adoption is also contrary to Clause (iii) of Section 10 of the Act of 1956 inasmuch as at the time of adoption, first respondent was not only major but he was married also. As per learned counsel, marital status of the first respondent has rendered the adoption vulnerable and the same ought to have been declared as null and void by the learned court below. Learned counsel Mr.Thanvi further submits that at the time of execution of adoption deed, late Shivram Tak was seriously ill suffering from paralysis and, therefore, he was physically and mentally unfit to execute the instrument of adoption. Learned counsel has also urged that even Smt.Shanti Devi in her written statement has completely disowned and repudiated the execution of adoption deed which is sufficient to nullify the adoption and by not doing so, the learned court below has committed serious error of law and fact. Learned counsel for the appellant submits that recitals contained in the adoption deed nowhere indicate that it is an 33 instrument whereby adoptive parents have simply made acknowledgement of the earlier adoption of the first respondent. He, therefore, submits that in the facts and circumstances of the instant case, presumption vis-a-vis a registered document envisaged under Section 16 of the Act of 1956 is clearly rebuttable and the said aspect has not been addressed by the learned court below while deciding issue No.3. Referring to the averments made in the plaint, learned counsel for the appellant would contend that first respondent was brother-in-law looser (wife's brother) of late Shivram Tak and, therefore, on the face of it, such adoption is legally impermissible. Learned counsel has also referred to Section 9 of the Act of 1956 by submitting that Explanation to said Section makes it amply clear that mother and father does not include adoptive mother and father and, therefore, in want of proper giving in adoption and taking in adoption, the same is illegal and void ab-initio to be declared as such. Taking a dig at the testimony of the attesting witness Dr.B.R.Vyas, DW-3, learned counsel for the appellant has urged that his statements are insufficient to prove proper execution of adoption deed and so also to presume mental stability of late Shivram Tak to execute an adoption deed when he was ill.
Assailing the finding of learned Trial Court on additional issue No.1 relating to limitation, learned counsel for the appellant submits that learned court below has misconstrued the point in issue while applying relevant article of limitation without appreciating the nature of the suit which was for twin reliefs namely, partition as well as for cancellation of adoption deed. Learned counsel has laid emphasis on Article 110 of the Limitation Act, 1963 (for short 'the Limitation Act') and urged that limitation prescribed therein ought to have been 34 pressed into service by the learned court below looking to the reliefs prayed for in the suit and by not doing so, the learned Trial Court has seriously erred in deciding additional issue No.1 against the appellant. Lastly, learned counel has urged that as the impugned judgment on issue No.3 and additional issue No.1 is contrary to law and facts, the impugned preliminary decree for partition of the property is not sustainable. In support of the contentions, learned counsel for the appellant has placed reliance on following judgments:-
(1) Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram & Ors., 1999(2) Apex Court Journal 598 (SC) (2) Prahallad Mishra & Anr. Vs. Benga Dibya & Ors., 1993 Civil Court Cases 442 (Orissa) (3) Smt.Sukho alias Phool Wati (Died) through LRs. Vs. Bijender & Anr., 2010(3) Civil Court Cases 345 (P&H) (4) Ram Jagat Vs. Smt.Kanchandei & Anr., AIR 1984 Allahabad 44 (5) Ram Chandra & Anr. Vs. Banwari Lal, 2014 (Suppl.) Civil Court Cases 540 ( Rajasthan) (6) Sadasiba Ratha & Ors. Vs. Bimala Dibya & Ors., AIR 1982 Orissa 129 (7) Harnek Singh Vs. Pritam Singh & Ors., (2013) 4 SCC 458 (8) Laxmibai Vs. Bhagwantbuva, (2013) 4 SCC 97 (9) Ghisalal Vs. Dhapubai, (2011) 2 SCC 298 (10) Kashibai & Anr. Vs. Parwatibai & Ors., (1995) 6 SCC 213 (11) Lakshman Singh Kothari Vs. Smt.Rup Kanwar, AIR 1961 SC 1378 E.converso, learned counsel for the first respondent Mr.S.M.Parihar with Mr.Vinay Shrivastava submits that the grounds set out in the plaint for cancellation of registered adoption deed are absolutely vague, cryptic and unspecific which are falling sort of 35 requisite grounds for cancellation of registered instrument of adoption deed. Learned counsel would contend that the appellant has made an affirmative attempt to improve her case in her evidence to challenge the legality and validity of the adoption deed, but a cumulative reading of the entire text of the plaint and her affidavit which she has tendered in evidence makes it amply clear that challenge to the registered instrument of adoption deed is founded on superfluous and non-est grounds which are rightly turned down by the learned Trial Court. Learned counsel has urged that no specific ground is set out in the plaint to challenge the adoption deed on the anvil of Sections 6,7 & 10 of the Act of 1956 and, therefore, any evidence tendered by the appellant which is in variance with the pleading is unworthy of any credit. Placing heavy reliance on the principle of consonance and conformity in pleadings and proof, learned counsel submits that any evidence tendered by the appellant contrary to the pleading is of no avail and consequence and the learned Trial Court has therefore rightly construed the evidence of the appellant in deciding issue No.3 against her.
Mr.Parihar, learned counsel for the respondent has vehemently argued that Section 16 of the Act of 1956 postulates a presumption as to validity of a registered document relating to adoption and, therefore, to dislodge this presumption, burden was on the appellant to tender a cogent and authentic evidence which has not been tendered in the instant case. He, therefore, submits that learned Trial Court has not committed any error much less an error of law in deciding issue No.3 against her. Countering the vociferous contention of the learned counsel for the appellant, Mr.Parihar submits that so-called embargo for adoption envisaged under clause 36
(iii) and (iv) of Section 10 of the Act of 1956 is having no relevance in the instant case inasmuch as adoption of the first respondent by late Shivram Tak relates back to the year 1960 and the deed of adoption (Ex.26) is simply acknowledgement and ratification of the adoption of the respondent. With these submissions, learned counsel submits that arguments of the appellant on the anvil of Sections 6 & 7 of the Act of 1956 are not tenable. Mr.Parihar has also argued that if averments contained in the plaint are harmoniously construed, then it clearly emerges out that appellant-plaintiff has virtually accepted the status of the first respondent as adopted son of late Shivram Tak. Elaborating his submissions in this behalf, learned counsel has laid emphasis on paragraphs 5 & 6 of the plaint with specific reference to paragraph 7 of the plaint wherein there is a candid admission by the appellant about execution of adoption deed by late Shivram Tak but under certain impulsions and on emotional considerations. Learned counsel for the respondent has also argued that there is no additional pleading on behalf of the appellant so far as paragraph-7 of the plaint is concerned as additional pleading was allowed to the appellant only with respect to paragraphs 3 to 5 of the written statement and, therefore, on the strength of averments contained in paragraph-7 of the plaint, no case for cancellation of adoption deed is made out which has rightly been turned down by learned Trial Court. Defending the impugned judgment, learned counsel for the respondent has contended that suit filed by the appellant was barred by limitation inasmuch as registered adoption deed dated 16.06.1992 is challenged by the appellant after more than six years and even after death of Shri Shivram Tak challenge is laid after expiry of period of limitation 37 under Article 57 of the Limitation Act. Learned counsel, therefore, submits that additional issue No.1 has rightly been decided by the learned Trial Court by treating the suit to the extent of cancellation of adoption deed as barred by limitation warranting no interference. While reiterating his submissions that appellant was fully abreast about execution of adoption deed by late Shivram Tak, learned counsel for the respondent would contend that even from her deposition during cross-examination, the suit is barred by limitation inasmuch as she has made a statement on oath that immediately after death of her father late Shivram Tak, she has announced that this adoption deed is void and the same is liable to declared as such. Placing heavy reliance on the statement on oath of the appellant, learned counsel for the respondent submits that there is no infirmity much less legal infirmity in the impugned judgment so far as finding of additional issue No.1 is concerned. Learned counsel for the respondent has urged that merely because twin reliefs were claimed by the appellant i.e. for partition and cancellation of adoption deed, period of limitation prescribed by the statute cannot be extended vis-a-vis the relief for cancellation of adoption deed. While joining the issue with the appellant on her contention about repudiation of registered adoption deed by late Smt.Shanti Devi, learned counsel would urge that her mere assertion in the written statement cannot be relied on as she has not appeared in the witness box to prove the same. Lastly, learned counsel submits that learned Trial Court has rightly passed the preliminary decree for partition with 50% share of the entire property between the appellant and the first respondent to be partitioned by metes and bounds and as such the said preliminary decree warrants no inteference. For 38 substantiating his arguments, learned counsel for the respondent has placed reliance on following legal precedents:-
(1) M/s J.P.Builders & Anr. Vs. A.Ramdas & Anr., 2011 (1) CCC 846 SC (2) Kalyan Singh Chouhan Vs. C.P.Joshi, 2011(2) CCC 001 (SC) (3) Rangammal Vs. Kuppuswami, 2011 (3) CCC 446 (SC) (4) Chimajirao Kanhojirao Shirke & Anr. Vs. Oriental Fire & General Insurance Co. Ltd., (2000) 6 SCC 622 (5) Veerabhadrayya R.Hiremath Vs. Irayya A.F.Basayya Hiremath, 2006 (3) CCC 655 (Karnataka) (6) Baru Vs. Tej Pal & Ors., AIR 1998 Allahabad 230 (7) Mst.Gulkandi & Ors. Vs. Prahlad & Anr., AIR 1968 Rajasthan 51 (8) Amar Singh Vs. Tej Ram & Anr., AIR 1982 P&H 282 (9) Vidhyadhar Vs. Mankikrao & Anr., 1999(2) CCC 91 (SC) (10) Ishwar Bhai C.Patel Vs. Harihar Behera & Anr., 1999(2) CCC 1 (SC) (11) Mst.Deu & Ors. vs. Laxmi Narayan & Ors., (1998) 8 SCC 701 (12) Kamaljit Singh Vs. Sarabjit Singh, 2014(Suppl.) CCC 607 (SC) (13) V.Chandrasekaran & Anr. Vs. The Administrative Officer & Ors., 2013(1) CCC 075 (SC) (14) Guruswamy Nadar Vs. P.Lakshmi Ammal, 2008 (3) RLW 2363 (SC) Learned counsel for the respondent Nos.4 & 5 Dr.Sachin Acharya submits that both respondents are bona fide purchasers and, therefore, their right deserves to be protected in the light of the observations made by this Court while passing the order dated 24.02.2015. Dr.Acharya has also urged that the averments contained in paragraphs 1,4 and 6 of the application submitted on behalf of the respondents in conjunction with other paragraphs of the application makes it amply clear that the agricultural land purchased 39 by these respondents from the appellant is less than 50% of the agricultural land which is subject matter of partition suit, therefore, rights of the respondents are liable to be protected while drawing final decree. Learned counsel has also urged that respondents have incurred huge amount for purchasing the land and also made endeavour to convert the same into industrial land, therefore, they are well within their rights to crave leave of the Court to protect their rights. In support of his arguments, learned counsel Dr.Acharya has placed reliance on a decision of Hon'ble Apex Court in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors Private Limited & Ors., 2013(5) SCC 397.
Joining issue with respondent Nos.4 & 5, Mr.Parihar, learned counsel for the first respondent submits that any transfer made by the appellant of an agricultural land which is subject matter of suit for partition in favour of respondent Nos.4 and 5 is hit by Section 52 of the Transfer of Property Act, 1882 and as such any further proceedings including transfer and conversion of land is subject to outcome of this appeal. Mr.Parihar has also urged that the revenue suit at the behest of the respondent for partition of the agricultural land instituted after passing of the impugned judgment and decree is still pending consideration before the Assistant Collector, Jodhpur. Therefore, according to Mr.Parihar, contention of the respondents to safeguard their rights is wholly untenable. Taking a dig on the conduct of the appellant in transferring the agricultural land during pendency of the suit, learned counsel Mr.Parihar would contend that her conduct is highly re-apprehensible in complicating the issue while concealing all these material facts in the registered instrument of sale in favour of the respondent Nos.4 & 5.
40
I have given my anxious consideration to the arguments advanced at Bar.
The suit filed by the appellant-plaintiff is essentially for the relief of partition of property, cancellation of adoption deed and perpetual injunction but first and foremost question is legality and validity of the registered adoption deed having ramification on the final outcome of the appeal. Therefore, it is imperative for this Court to first examine the relief of cancellation of adoption deed which is declined to the appellant by the impugned judgment. While arguing the appeal also, learned counsel for the appellant has essentially canvassed his arguments to assail finding of learned Trial Court on issue No.3 and additional issue No.1. In order to examine the finding of the learned Trial Court on issue No.3, point for determination can be formulated infra:-
"Whether registered adoption deed dated 16.06.1992 on appreciation of evidence and ameliorating the other relevant circumstances satisfies the requirement of a valid adoption within the four corners of the Act of 1956?"
For thrashing out this issue in legal perspective, averments of the plaint in this behalf are of utmost significance denoting the very foundation and edifice of the challenge. A glance at the plaint clearly and unequivocally reveals that appellant has admitted execution of adoption deed by late Shivram Tak on 16.06.1992 but for the objection that the same was executed with impulsion and on certain emotional considerations. To lay challenge to the same, a specific ground is set out in the pleading that there is a legal embargo for adoption of brother-in-law looser (wife's brother). There is yet another aspect of the matter that as per the version of the appellant, 41 the adoption deed was executed by late Shivram Tak to avoid any future property dispute and while foreseeing any future acrimony between the parties. A omnibus plea is also sought to be raised that adoption deed is not in accordance with law and, therefore, it is required to be declared as void and ineffective. Some of the facts are also incorporated in the pleading to denote martial status of the first respondent for assailing the adoption deed. Interestingly, for seeking cancellation of adoption deed, the appellant-plaintiff has stressed on a ground that cancellation of adoption deed would facilitate cordial and congenial relations within the family. In totality, besides these facts, no other averment was made in the plaint for challenging the adoption deed. Suffice it to observe that first respondent has refuted all these averments in his written statement and pleaded with material particulars that he is living with late Shivram Tak since his childhood when he was three years old and his adoption by late Shivram Tak with the consent of his wife was completed on 26.08.1960. It is further averred in the written statement that execution of the registered instrument on 16.06.1992 was mere acknowledgement of his earlier adoption and it was a ratification of the adoption made almost three decades back. The first respondent has also narrated detailed facts to demonstrate his relationship with late Shivram Tak and his wife by asserting that both of them looked after him as their son and acknowledged his said status on many occasions. Although the appellant made attempt to counter the said averments made in the written statement of first respondent by filing additional pleading but her effort foiled inasmuch as she was permitted to file rejoinder only with respect to the averments made in paragraphs 3 to 5 of the written statement. 42 That being the position, the pleading of the appellant to challenge the adoption deed dated 16.06.1992 remained confined to paragraph-7 of the plaint only. At this juncture, it may be worthwhile to notice that in the original plaint, Smt.Shanti Devi, mother of the appellant was also arrayed as defendant and a decree for partition was sought amongst all the three namely, appellant, Smt.Shanti Devi and first respondent. Being parties to the litigation, Smt.Shanti Devi also submitted her written statement wherein she has also completely denied the execution of adoption deed by late Shivram Tak. If the written statement of Smt.Shanti Devi is examined with birds eye view then it would ipso facto reveal that she has not only refuted the averments of the execution of adoption deed but has rather projected a very embellished version to categorise the same as forged and spurious document. This sort of pleading by Smt.Shanti Devi is nothing but a blatant attempt to improve the case set out by the appellant-plaintiff in her plaint. It goes without saying that basic rule of evidence is incumbit probatio qui dicit, non quit negat - the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable or proof.
Therefore, being an aggrieved party, the burden was on the appellant to prove that adoption is null and void and anything pleaded in the written statement by the defendant cannot render any assistance to the appellant. One more redeeming fact is that although Smt.Shanti Devi has completely repudiated the execution of the adoption deed and even categorised the same as a forged document but said pleading is of no significance inasmuch as she has not appeared in the witness box. Any pleading in want of proof 43 deserves no credence whatsoever. The suit as such was filed in the year 1998 and Smt.Shanti Devi survived almost for a decade during pendency of the suit inasmuch as she passed away on 07.05.2008 but in the interregnum as the plaintiff's evidence was not completed, there was no occasion for the learned Trial Court to record her statement. Be that as it may, the fact remains that the averments made by her in the written statement remained unsubstantiated and eventually she was deleted from the array of defendants by order dated 16.10.2008. In this view of the matter, it is obviously not desirable to take cognizance of the averments contained in the written statement of Smt.Shanti Devi and these averments cannot come to the aid or rescue of the appellant.
Now switching on to the evidence of the appellant, if her examination-in-chief is examined in the form of affidavit, then it would ipso facto reveal that affidavit is not in consonance and in conformity with the pleadings. By adopting the pleading of Smt.Shanti Devi, the appellant has projected her improved version to assail the adoption deed. In fact, the affidavit of the appellant is in the form of a complete somersault to the averments made in the plaint. It is in that background, the credibility of the statement of the appellant during her examination-in-chief is under serious cloud and questionable. This sort of position has emerged out for the reason that the appellant is pitted against a registered instrument of adoption deed for which there is statutory presumption about its validity under Section 16 of the Act of 1956. By virtue of the mandate of Section 16 of the Act of 1956, a heavy burden was on the appellant to prove that adoption has not been made in compliance with the provisions of the Act of 1956. Order VI Rule 2 mandates that 44 a plaintiff is required to plead all the material facts to formulate a cause of action and a party may not be permitted to lead evidence in contradistinction to what has been pleaded. During her cross- examination, the appellant has admitted the fact that during her childhood she was given affection by respondent Prithvi Singh and he used to look after her. The assertion of the appellant during her cross-examination that how and in what manner she has signed the affidavit in the form of the examination-in-chief is quite sceptical inasmuch as she has candidly admitted that papers were brought before her by Kanaramji and thereafter she has signed the same. To impeach the testimony of the appellant in the process of cross- examination, the counsel for the respondent has elicited her admission on some of the facts which were not pleaded in the plaint. The appellant has also admitted during her cross-examination that she has handed over all relevant papers to her lawyer at the time of filing of the suit. While admitting the fact that both the attesting witnesses of the adoption deed are known to her, she has denied execution of adoption deed in her presence and in presence of her mother. That apart, the other witness of the appellant PW-2 Om Prakash in his affidavit has completely denied the execution of adoption deed which is apparently an improved version vis-a-vis the testimony of the appellant and the same is also in contradistinction to the pleadings. The witness, during his cross-examinatin, has very candidly admitted that he is recording his statements at the instance of the appellant and on her asking to do so. PW-2 Om Prakash although stated during his cross-examination that adoption deed is false, fabricated and spurious document but has conceded that he cannot spell out the grounds for his such assertion. The witness 45 further states that adoption deed was not executed in his presence and he has also not signed the document. A cumulative reading of the statement of PW-2 makes it amply clear that he is a pro-active witness who made an affirmative attempt to project embellished version of the testimony of the appellant. In substance, the statements of PW-2 are parrot like and do not inspire confidence. Moreover, on many crucial aspects touching the issue of validity of adoption deed, he has projected a very hazy picture sufficient to discard his testimony as reliable and trustworthy. It may be clarified that trustworthiness and reliability of the witness is examined by the court on the touchstone of Section 16 of the Act of 1956. Contrary to the witness of the appellant, if evidence of the first respondent is scrutinized critically, then there remained no room of doubt that the appellant has not succeeded in impeaching his testimony during cross-examination. In his cross-examination, the first respondent has reiterated the version which he has put forth in the written statement. If the statement of first respondent (DW-1) are examined during cross-examination, then it would ipso facto reveal that no material question was put to him concerning the validity or legality of the adoption deed. The entire cross-examination hovers around his father's name in the testimonials and some other record somuch so there is no cross-examination regarding the positive version of the respondent that he was adopted by late Shivram Tak in the year 1960 and subsequent documentation i.e. execution of adoption deed dated 16.06.1992 is simply an acknowledgement and ratification of his adoption earlier. Besides that, the respondent has also tendered evidence of DW-2 Thanpat Singh and DW-3 Dr.B.R.Vyas. DW-2 Thanpat Singh has also concurred with the 46 version of the first respondent so far as adoption is concerned. The testimony of DW-3 Dr.B.R.Vyas who was one of the attesting witness of the adoption deed is of great significance. In his deposition, Dr.B.R.Vyas has stated that adoption deed was executed by late Shivram Tak with his wife out of free will and his own volition. The witness has also stated that besides him, late Shri Ashwini Kumar Bhatt also appended his signatures on the adoption deed as attesting witness. The witness has also shown his proximity with late Shivram Tak and his close relationship with him for the last more than 2½ decades. The witness during his cross- examination has also deposed that at the time of execution of adoption deed, late Shivram Tak was in good health but for some difficulty in his speech. It is also stated by the witness that complete text of the adoption deed was read out to him by late Shri Ashwini Kumar Bhatt. This being the position, the testimony of DW-3 the attesting witness certainly carries weight and it cannot be said that learned Trial Court has committed any material irregularity or illegality in relying on the testimony of DW-3 Dr.B.R.Vyas. At this stage, some of the recitals contained in the adoption deed (Ex.26) are also relevant. The relevant excerpts of Ex.26 showing acknowledgement and ratification of earlier adoption of first respondent by late Shivram Tak are as under:-
"चफक प6 पकक र दतकगह षप श ट क षशवर पत सवग@य श नत6ज क/ श द आज स कर ६० व C पवC श ष श न दव क स 6 हई 6 एव श द ह न क द कर २० व C क क ई सन न नहS रह उनहEन अपन ससर श ह रज पत श गडज क पत षच० पथव ससह क अपन प स रख एव पतव सह फदय । षच० प6व ससह ३ व C क/ आय स ह प6 पक क स 6 रह आय हJ एव उसक/ श द , षवव ह, प लन-प ण प6 पकक र न ह फकय हJ।
यह फक षच० प6व ससह क स 6 रखन क प9 ] कर १० व C क/ आय क दतकगह श षशवर ट क न ज ष ररव ज फ?क स र रस अनस र षच० प6व ससह क अपन दतकपत (ख ल) षलय । षच० प6व ससह क स 6 रखन क प9 कर १२-१३ व C द प6 पक क एक पत क जन हआ परन क ई पत क जन नहS हआ।"
47In view of the recitals in the adoption deed (Ex.26) and for want of cogent and convincing evidence, to assail its validity on the touchstone of Sections 6, 7 & 10 of the Act of 1956, I am afraid, the appellant has miserably failed to dislodge the presumption about validity of a registered adoption deed as mandated by Section 16 of the Act of 1956. The appellant without laying any foundation in the plaint has vociferously canvassed the requirement envisaged under Sections 6,7, 10 and 11 of the Act of 1956 to castigate the adoption deed (Ex.26) which on the face of it cannot be countenanced. While divorcing ceremonies even if these grounds are scrutinized on the touchstone of legal provisions in conjunction with evidence and materials available on record, irresistible conclusion of this Court is that the appellant has miserably failed to discharge its burden. As observed supra, presumption as to registered document relating to adoption as envisaged under Section 16 of the Act of 1956 cannot be done away on the strength of evidence tendered by the appellant.
Admission is the best evidence which can be relied upon by the opposite party. In the context of the subject-matter of the present appeal, if the averments of the plaint are properly construed, then it would ipso facto reveal that besides admitting the execution of adoption deed by late Shivram Tak on 16.06.1992 in paragraph-7 of the plaint, the averments of paragraphs 5 & 6 of the plaint are also relevant wherein the appellant has stated with clarity and precision that Joint Hindu Family property of late Shivram Tak was partitioned amongst the appellant, Smt.Shanti Devi and the first respondent. The partition of the property of late Shivram Tak in favour of first respondent pre-supposes that appellant has 48 acknowledged him as legal heir of late Shivram Tak. Otherwise, a brother-in-law looser cannot be a legal air as per the Hindu Succession Act. Therefore, this admission of the appellant is also vital and is sufficient to prove the factum of adoption. On this proposition that admission is the best evidence, reliance can be profitably made to a decision of Hon'ble Apex court in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi & Ors., AIR 1960 100 wherein while examining the value of admission, the Apex Court held as under:-
"11. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and, his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive 'of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated."
In Chairman, Bihar Rajya Vidyut Board (supra), Hon'ble Apex Court while considering the fact that deed of adption is not signed by any person giving the child in adoption, declined to draw the presumption under Section 16 of the Act of 1956 precisely for the reason that adoption deed is not registered. Herein, in the instant case, adoption deed is a registered instrument, therefore, this verdict cannot render any assistance to the appellant.
In Ram Chandra (supra), this Court has declined to draw a presumption about validity of the adoption deed for absence of essential ingredients as envisaged by Section 16 of the Act of 1956 while considering a very vital fact that natural mother of the adoptee- 49 plaintiff though was alive but has not appeared in the witness box to prove the factum of adoption. Herein, in the instant case, there is nothing on record to show that mother of adoptee was alive and she has not appeared in the witness-box. Moreover, the other evidence fortifying the adoption of the first respondent earlier and there is no evidence to counter the same by the adoptive parents, has tilted the balance favouring the cause of the first respondent to draw presumption about validity of the adoption by virtue of Section 16 of the Act of 1956. It may not be out of place to observe here that there is a candid admission by the appellant-plaintiff about the adoption and, therefore, this judgment too cannot render any assistance to the cause of the appellant.
In Harnek Singh (supra), Hon'ble Apex Court while consideirng concurrent finding of the courts below that adoption was not proved, confirmed the same by observing that the findings are not perverse. In that case, even the factum of adoption is denied by the adoptive father and, therefore, by taking into account some of the clauses of Section 10 & 11 of the Act of 1956, the Court found that adoption has not been proved by upholding the concurrent finding. On facts, the ratio decidendi of this case too cannot extend any help to the cause of the appellant.
In Laxmibai (supra), Hon'ble Apex Court while considering a registered adoption deed declined to dislodge the presumption about its validity under Section 16 of the Act of 1956 on mere technicalities that adoption deed is signed by natural parents as witnesses and not as executing parties. While discussing the manner of appreciation of evidence, in such matters, the Court observed that it is not the number of witnesses but quality of their 50 evidence which is important. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. In the instant case, the factum of earlier adoption of the first respondent and existence of a registered instrument of adoption deed coupled with admission of the appellant about adoption is sufficient to conclude that appellant has failed to discharge her burden to prove invalidity of the adoption deed. As such, the law laid down by Hon'ble Apex Court can very well be pressed into service to favour the cause of the first respondent and upholding the finding of the learned Trial Court on issue No.3.
In Ghisalal (supra), Hon'ble Apex Court while considering the fact that there was no valid consent of the wife for adoption, declined to treat the adoption as a valid adoption. The Court has also considered the fact that mere presence of the wife at the time of ceremony of adoption is not sufficient to validate the adoption. If the ratio decidendi of this verdict is examined in the factual backdrop of the case, then it would ipso facto reveal that registered adoption deed is signed by both the adoptive parents and although adoptive mother has denied the factum of adoption in her written statement but has not substantiated the same as she has not appeared in the witness-box. Therefore, her mere denial in the written statement is insufficient to dislodge the presumption about validity of a registered adoption deed under Section 16 of the Act of 1956.
In Lakshman Singh Kothari (supra) Hon'ble Apex Court has no occasion to consider the rigour of Section 16 of the Act of 1956 and, therefore, in that background, the Court has found that in absence of ceremony of giving and taking, it is not possible to infer that adoption had taken place in this case. At the outset, in the facts 51 and circumstances of the instant case, this judgment cannot render any assistance to the appellant more particularly when there is a sufficient evidence on record to show earlier adoption of the first respondent and further existence of a registered instrument of adoption.
In Kashibai (supra), the facts are altogether different inasmuch as in that case, adoption was made of second wife's son sans consent of living wife. Therefore, in that situation, Hon'ble Apex Court found that the same cannot be construed as a valid adoption.
The legal precedents on which learned counsel for the first respondent has placed reliance in this behalf are not required to be discussed threadbare but for the judgments on Order VI Rule 2 CPC. It is settled position of law that the basic principle of pleading and proof namely evidence beyond pleading cannot be looked into can very well be pressed into service in the instant case to support the case of the first respondent. As observed supra, the pleading of the appellant to assail the validity of adoption is absolutely vague, cryptic and unspecific and the appellant made an affirmative attempt to improve her version during evidence. That being so, the evidence which is beyond pleading is unworthy of any credit and cannot be relied upon and the Court also feel inclined to subscribe the same view. The judgments in M/s J.P.Builders and Kalyan Singh Chouhan on which learned counsel for the first respondent has placed reliance can very well be relied upon in this behalf. So far as burden of proof is concerned, as mandated by Section 101 of the Indian Evidence Act, 1872, it obviously rested on the appellant who has laid the suit for cancellation of adoption deed. Judgment in Rangammal (supra) of Hon'ble Apex Court is very much significant 52 in this behalf on which learned counsel for the first respondent has placed reliance.
Therefore, in the considered opinon of the Court, finding and conclusions recorded by the learned Trial Court on issue No.3 cannot be categorised as infirm or perverse and the said finding requires no interference. Consequently, the point for determination deserves answer in negative vis-a-vis the appellant and the appreciation of evidence and after ameliorating of all the facts and circumstances of the case, there remains no shadow of doubt about the validity of registered adoption deed (Ex.26).
The second point for determination relates to the law of limitation. To thrash out the question of limitation which is determined by the learned Trial Court while deciding additional issue No.1 against the appellant, the point for determination may be formulated as under:-
"Whether the suit filed by appellant for cancellation of adoption deed dated 16.06.1992 is barred by limitation?"
In order to analysis the issue relating to limitation on the touchstone of relevant provisions of the Limitation Act which are Articles 57 & 58 of the Act of 1963, let us examine the facts pleaded in the plaint.
The factum of execution of registered adoption deed dated 16.06.1992 is mentioned by the appellant-plaintiff with clarity and precision in paragraph-7 of the plaint. A cumulative reading of the entire plaint makes it amply clear that appellant had knowledge about execution of the adoption deed from the date of its execution. Curiously, in the entire plaint, there is no whisper by the appellant that as to when she came to know about execution of adoption deed 53 by late Shivram Tak and, therefore, it is rather impossible to infer that she came to know about the execution of adoption deed on any subsequent date. Even paragraph 11 of the plaint where cause of action is sought to be disclosed, there is no mention about the fact as to when the appellant came to know about the execution of adoption deed. In this view of the matter, laying the suit for cancellation of a registered adoption deed after a lapse of more than six years i.e. in December 1998 makes the suit barred by limitation. The relevant Article of the limitation governing the province of cancellation of adoption deed is Article 57 which envisage period of limitation as three years and under the caption "Time from which period begins to run" - "When the alleged adoption becomes known to the plaintiff."
As regards other declarations, the period of limitation is three years under Article 58 of the Act of 1963 and the said period is to be reckoned from the date right to sue first accrues. Therefore, from the averments contained in the plaint itself, the suit is barred by limitation. Assuming it that the appellant had no knowledge about the execution of adoption deed on the crucial date i.e. 16.06.1992 then too, the candid admission of the appellant during her cross- examination that immediately after death of her father, late Shivram Tak which admittedly occurred on 29.11.1994, she has repudiated the adoption deed by declaring that the same is liable to be declared as null and void. The relevant part of the deposition of the appellant in vernacular is reproduced as under:-
" र षप ज क सवगCव स क प9 ] ह र द ह न कह फदय 6 फक ह "
ग द नहS रखन इसषलए ग दन ख ररज करव य ज व"।"
There is yet another admission of the appellant about
execution of adoption deed on 16.06.1992 during her cross-
54
examination. The relevant part reads as under:-
"फदन क 16.6.92 क ग दन " क अगल फदन र षप ज न क ई दस वज षनषप फद फकय ह झ प नहS। झ यह ज नक र नहS हJ फक फदन क 17.6.92 क र सवग@य षप ज न वस य न षनषप फद कर झ, र ज एव पथव ससह क नE क अलग-अलग समपषत द द ह ।"
That being so even if limitation is to be construed from the date of death of late Shivram Tak i.e. 29.11.1994 the suit has been filed after expiry of more than four years which is admittedly beyond the prescribed period of limitation i.e. three years as envisaged under Article 57 of the Limitation Act.
Section 3 of the Limitation Act mandates that court is required to examine the prescribed period of limitation for institution of a suit, appeal and application even though limitation has not been set up as a defence. It further mandates that if the suit instituted, appeal preferred and application made after prescribed period, the same is liable to be dismissed by the Court.
The statute of limitation is founded on public policy. It seeks to bury all acts of the past, which have been agitated unexplainably and by lapse of time have become stale. According to Halsbury's Laws of England, Vol. 28, P. 266:
"605. Policy of the Limitation Acts- The Courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
In Popat & Kotecha Property V/s. State Bank of India Staff Association [(2005) 7 SCC 510], Hon'ble Apex Court has thoroughly discussed the law of limitation and its objects by observing that:
"Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their 35 remedy promptly. The object of providing a legal remedy is to repair the damage 55 caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy (1999 (1) Civil Court Cases 12 (S.C.) : 1999 (1) Apex Court Journal 52 (S.C.) :
1998 (7) SCC 123)."
The argument of learned counsel for the appellant that Article 57 is not applicable as relief of partition is claimed, suffice it to observe that for the purpose of limitation, the relief of cancellation of adoption deed is required to be segregated. Moreover, in the instant case, the entire evidence tendered by the appellant is loaded against the validity of the adoption deed and that has rendered the relief of partition merely an ancillary relief. Even before this Court, attempt is made at the behest of the appellant to impeach the finding of learned Trial Court on issue No.3 and additional issue No.1. Therefore, in my considered opinion, the learned court below has rightly invoked Article 57 of the Limitation Act for non-suiting the appellant on the ground of limitation and the decision of Orissa High Court in Sadasiba Ratha (supra) cannot render any assistance to the cause of action of the appellant. In the final outcome, I do not find any justifiable reason for tinkering with findings and conclusions of the learned Trial Court on additional issue No.1 and the same is just and proper being in accordance with law and facts of the case. The conclusion aforesaid has obviously facilitated answer of the point for determination in favour of the first respondent and against the appellant.
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Now after outcome of the two points for determination against the appellant, the third point for determination encompassing issue Nos.1 and 2 which has facilitated passing of the preliminary decree for partition of the suit property in equal shares between the appellant and the first respondent has remained a ritual only. The point for determination in this behalf is formulated as infra:-
"Whether the property for which partition is sought by the appellant is required to be divided by metes and bounds with a separate and distinct share of the appellant?"
The learned Trial Court upon consideration of finding on issue No.3 and additional issue No.1 has decided issue Nos.1 and 2 simultaneously and partitioned the suit property with equal shares amongst both the legal heirs of late Shivram Tak namely, appellant and the first respondent. While deciding issue Nos.1 and 2, learned Trial Court has decided one-half share for both parties with the stipulation that property be divided by metes and bounds. This sort of situation arose because of death of the third legal heir of late Shivram Tak, his wife Smt.Shanti Devi during the pendency of the suit. In my considered opinion, taking into account the fact that they were only surviving legal heirs of late Shivram Tak, the learned Trial Court has rightly passed the preliminary decree of partition by determining one-half share for the each legal heir. Therefore, finding on issue No.1 and 2 requires no interference in this appeal and the point for determination is accordingly decided by upholding the finding on these two issues.
Though essentially the lis involved in the matter was for cancellation of adoption deed and partition of the property but due to subsequent events, which occasioned on account of transfer of part 57 of agricultural land by the appellant to respondent Nos.4 & 5, yet another issue has cropped up requiring determination by this Court. In view of order dated 24.02.2015 passed on their application under Order I Rule 10 read with Order XXII Rule 10 CPC, it has become imperative for this Court to examine their afflictions also. By the said order, both of them were allowed to be impleaded as party respondent and to safeguard their interest, following point for determination can be formulated:-
"Whether respondent Nos.4 and 5 are bona fide purchasers of the agricultural land and, therefore, any so-called interest created in their favour on account of transfer of the agricultural land by appellant is to be safeguarded?"
The principal submission of the respondent Nos.4 & 5 to safeguard their alleged interest is essentially founded on a positive assertion that they are bona fide purchasers and after purchase of land they have also made endeavour to get the land converted for industrial purpose. That apart, their contention is also that the alleged sale transaction by the appellant was before passing of the status quo order by this Court in this behalf. There is yet another contention of these respondents that agricultural land purchased by them is less than 50% of the total agricultural land which is subject- matter of suit and, therefore, they are well within their rights to agitate their cause at the time of drawing of the final decree for partition. All these arguments are seriously opposed by counsel for the first respondent mainly by placing heavy reliance on Section 52 of the Transfer of Property Act, 1882. Section 52 of the Transfer of Property Act, 1882 reads as under:-58
"52. Transfer of property pending suit relating thereto.-- During the 1[pendency] in any Court having authority 2[3 [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 1[the Central Government] 2[* * *] of 3[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
4[Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
A cumulative reading of the aforesaid provision and on its harmonious construction, there remains no quarrel that intention of the legislature is not to declare a pendente lite transfer by a party to the suit as void or illegal. As a matter of fact, it simply mandates that pendente lite purchaser is bound by the decision in the pending litigation. If ultimately, title of the pendente lite transfer is upheld in regard to the transferred property, the transferee's title will not be affected. Reliance in this behalf can be profitably made to a decision of Hon'ble Apex Court in T.G.Ashok Kumar Vs. Govindammal, (2010) 14 SCC 370 and Thomson Press (India) Ltd. (supra) on which learned counsel has placed reliance. There is one more redeeming fact clearly and unequivocally emerges out from the recitals contained in the registered sale deeds executed by the appellant in favour of respondent Nos.4 & 5, namely the fact that while executing these sale deeds, the appellant has not disclosed a vital information about pendency of this litigation. Suffice it to observe in this behalf that such conduct of the appellant in common 59 parlance cannot be countenanced but then it can very well be inferred that these respondents are bona fide purchaser and they have paid consideration to the appellant for the land in question. This being the position, without making any adjudication on the issue, as the same is not subject-matter of this appeal, it can very well be observed that respondent Nos.4 & 5 shall be at liberty to raise their grievance before the learned Trial Court at the time of drawing of the final decree of partition between the parties so as to reap the fruits of the sale deed executed in their favour by the appellant. At this stage, this Court is refrained from issuing any direction to the learned Trial Court to draw a final decree by metes and bounds in a particular manner to the advantage of these respondents. It is needless to observe that learned Trial Court while drawing final decree shall also take into account the total area of the land which is a subject-matter of sale transactions. The point for determination is, therefore, decided accordingly.
The upshot of above discussion is that in view of findings on all the three points for determination against the appellant, there is no merit in this appeal and the same is, accordingly, dismissed.
Costs are made easy.
(P.K.LOHRA),J.
MK