Madhya Pradesh High Court
Uma Prasad vs Smt. Padmawati And Ors. on 20 April, 1999
Equivalent citations: 1999(2)MPLJ502, 1999 A I H C 3494, (1999) 2 MPLJ 502 (2000) 1 RECCIVR 581, (2000) 1 RECCIVR 581
Author: Dipak Misra
Bench: A.K. Mathur, Dipak Misra
JUDGMENT Dipak Misra, J.
1. In this appeal preferred under Section 96 of the Code of Civil Procedure the plaintiff-appellant has called in question the propriety of the judgment and decree dated 30-7-1998 passed by the learned District Judge, Seoni in Civil Suit No. l-A/78 whereby he has dismissed the suit of the plaintiff filed for declaration, partition and separate possession.
2. The plaintiff filed the suit in forma pauperis for declaration, partition and separate possession. The admitted facts of the case are that the deceased Ramrichhpal had four sons namely, Jagan Prasad, Motilal, Suraj Prasad and Harishchand. The Plaintiff is the only son and heir of his deceased father, Jagan Prasad. His uncle Suraj Prasad died as a widower and issueless. His another uncle Motilal expired sometime in the month of February-March, 1971. The defendants Nos. 3 and 4 are the daughters of Motilal. His last uncle Harischand died on 19-1-1974. The defendant No. 1 is the widow of late Harishchand. On 8-12-1974 the defendant No. 1 has adopted defendant No. 2. To appreciate the factual scenario it is apposite to give the family genealogy.
Ramrichhpal |
------------------------------------------------------
| | | |
Jagan Prasad Motilal Suraj Prasad Harishchand
| | (died widower & |
| | issueless) |
| | |
| | |
| | Smt. Padmavati
Uma Prasad | (defendant No. 1)
(Plaintiff) | |
| |
------------------------ |
| | |
Gyarsi Bai Kamla Bai |
(defendant No. 3) (defendant No. 3) |
Nirmal Kumar
(defendant No. 2)
From the above it becomes clear that the defendants Nos. 3 and 4 are daughters of Motilal. The defendant No. 1 on 8-12-1974 adopted defendant No. 2, Nirmal Kumar. It is not disputed that the parties to the suit are Agrawals by caste having Aron as their 'Gotra' and they are governed by Mitakshara School of Hindu Law. It is also an admitted fact that they are originally the residents of village Bhalot of Rajasthan State and they had migrated themselves to the State of M.P. and while so doing they had brought their customs with them. It is to be noted here that initially a Civil Suit No. 110-A/74 was filed in the Court of Civil Judge, Class-II, Seoni, against the defendants Nos. 1 and 2 for permanent injunction restraining the defendant Nos. 1 and 2 from taking the defendant No. 2 in adoption. By the time the order of injunction could be served on the defendants the adoption had taken place, and therefore, the plaintiff had withdrawn the suit with permission to bring a separate suit.
3. According to the plaintiff the Joint Hindu Family consisting of his grandfather, Ramrichhpal; his father, Jagan Prasad; and his uncles, Motilal, Suraj Prasad and Harishchand carried the business of 'Hemp' at Seoni. After the death of his grandfather, Ramrichhpal, the four sons with the capital of Joint Hindu Family started separate business. His deceased uncle Harishchand started 'Kirana' business with the funds of the said Joint Hindu Family, and therefore, the properties purchased by him and as mentioned in Schedules 'A' and 'B' annexed to the plaint belong to the Joint family. It is also put forth in the plaint that he is the sole surviving coparcener of the Joint Hindu Family. It was pleaded by him that the defendant No, 2 was above 15 years of age at the time of adoption, and therefore, the adoption is void being hit by the provisions of Hindu Adoptions and Maintenance Act, 1956. In the alternative it was set forth by the plaintiff that even if the adoption was found to be valid he was entitled to the half share in the suit property.
4. The defendant Nos. 1 and 2 filed their written statement denying the claim of the plaintiff. They disputed that the plaintiff is the sole surviving coparcener of the Joint Hindu Family or is entitled to half of the property mentioned in Schedules A and B annexed to the plaint. Their positive plea before the Court below is that in or about the year 1924-25 Late Ramrichhpal faced a financial crisis and at that juncture the father of the plaintiff, Jagan Prasad had withdrawn himself from the family business with a view to escape from the liability and separated himself and started a new business in the name and style of 'Jagan Prasad and Uma Prasad'. The rest of the family remained joint. As alleged, Late Ramrichhpal has disposed of all the assets belonging to the Joint Hindu Family to discharge the debts. Late Motilal, Suraj Prasad and Harishchand started their business from the borrowed capital and slowly improved their financial position. On the death of Suraj Prasad his share in the Joint Hindu Family business devolved upon his two surviving brothers, namely, Motilal and Harishchand. It is also pleaded by the said defendants that the defendant No. 1 from her own resources purchased some land in village Paunar and installed Rice Milling Factory. This property is self-acquired property. They have denied that Harishchand had owned golden ornaments weighing 200 tolas and silver ornaments weighing 500 Tolas. The positive plea put forth is that the defendant No. 1 owned some gold and silver ornaments of her own as her 'Stri-Dhan'. These two defendants have also put forth that Late Motilal had bequeathed all his property to the deceased Harishchand and late Harishchand had also executed a Will on 14-6-1973 in favour of the defendant No. 1 who is his wife. It is also set forth in the written statement that Agrawals migrated from Rajasthan and Haryana and had settled in Madhya Pradesh and Nagpur and Wardha regions of Maharashtra State. They had brought their ancient and well established customs on usages to take in adoption boys even over 15 years of age. Thus, Agrawals, as claimed by them, brought their customs from their State to their place of stay. In this backdrop it is pleaded that the adoption of P.W. 2 is just and valid. Lastly it was urged by the defendants that the earlier suit i.e. Civil Suit No. 28-A/96 does not operate as res judicata and the plaintiff should value the suit for the purpose of court fees and jurisdiction at Rs. 1,30,000/-. Their further plea is that Late Jagan Prasad the father of the plaintiff had ceased to be a member of Joint Hindu Family almost five decades back, and therefore, at his instance a suit for declaration, partition and separate possession is liable to be dismissed.
5. The defendants Nos. 3 and 4 filed their separate written statements. While disputing the claim of the plaintiff, their further plea is that if the Will executed by their father in favour of their uncle Harishchand for any reason is discarded they would be entitled to l/3rd share in the Joint Hindu Family property.
6. The learned District Judge has framed as many as seven issues. On consideration of the oral and documentary evidence on record the learned trial Judge came to hold that as the plaintiff had amended the plaint and valued the suit at Rs. 1,30,000/- for the purpose of Court-fees and thus he has rightly valued the suit, and, therefore, the issue whether the earlier judgment operates as res judicata or not melts into insignificance. The learned District Judge on scrutiny of the evidence came to hold that the execution of the Will" by Harishchand in favour of defendant No. 1 on 14-6-1973 vide Ex. D-8 is reasonable one having been properly proved, the defendant No. 2 is the adopted son of Suraj Prasad as they have been able to prove the customs and usages, Jagan Prasad had left the Joint Hindu Family to remain separate, and Ramrichhpal had suffered immense loss in his Hemp business in the year 1924-25 and he had no capacity to pay his debts, and therefore, it can be inferred that the Joint Hindu Family was left with no property of its own. The learned Trial Judge took note of the fact that the financial condition of the 'Karta' of the Joint Hindu Family had deteriorated and the non-co-operation of Jagan Prasad during his life-time and each coparcener running his own business with his own funds go a long way to show that there has been disruption of the jointness of the family, and therefore, the claim of the plaintiff for declaration, partition and separate possession was not allowable and accordingly dismissed the suit.
7. We have heard Mr. P. S. Das, learned counsel for the appellant and Mr. B. P. Verma, learned counsel for the defendants. On a perusal of the judgment we find that the learned trial Court has addressed itself to the question whether the decision in Civil Suit 28-A/76 operates as res judicata. A preliminary objection was raised by the defendants that the suit should be valued at Rs. 1,30,000/- for the purpose of Court fees and accordingly the plaintiff had amended the plaint and prayed for permission to sue in forma pauperis which was allowed. In view of this the question of earlier decision operating as res judicata did not arise. The learned trial Judge has, thereafter, dealt with the issue relating to execution of Will dated 14-1-1971 by Motilal bequeathing all his properties in favour of Harishchand and whether Harishchand thereafter executed a Will in favour of defendant No. 1, Padmavati Bai. On a perusal of the evidence it transpires that the Will executed by Motilal has been brought on record as Ex. D-7. The Will has been duly executed as enjoined under law. The scribe of the Will is Gokul Prasad (IDW. 1) who had ascribed the Will at the instance of Motilal who has admitted the correctness of the contents of the Will. On a close scrutiny of the evidence of the said witness and the other attesting witnesses Smt. Kamla Bai (IDW. 15), Smt. Padmavati Bai (IDW. 1) and Gyarsi Bai (IDW). Smt. Kamla Bai (IDW. 15), the daughter of Motilal, it becomes quite clear that Motilal was in a proper state of mind to bequeath the property and there is no reason to believe their testimony. No unnatural, improbable or unfair circumstances are noticed to come to a conclusion that the Will was executed under suspicious circumstances. The next Will is that of Harishchand in favour of Smt. Padmavati Bai. She has stated in categorical terms that she was issueless and her husband had executed the Will Ex. D-8 in her favour. On a proper scrutiny of the evidence the trial Court has arrived at the conclusion that the Will Ex. D-8 was not obtained under compelling circumstances. The scribe, Gokul Prasad, has deposed that he has scribed the Will and Late Harishchand had signed in his presence as also in the presence of the witnesses. The testimony of this witness has gone unchallenged. Considering the totality of circumstances the learned trial Judge has reached the conclusion that Ex. D-8 was voluntarily executed on 14-6-1973 in favour of the defendant No. 1 and we see no reason to unsettle that finding.
8. It is contended by Mr. P. S. Das that the issue of adoption has not been properly dealt with by the learned trial Judge and the defendant No. 2 cannot be regarded as the adopted son of defendant No. 1. The learned trial Judge has referred to the principles relating to the adoption as laid down in the decisions rendered in the case of Lakshman Singh Kothari v. Smt. Sup Kanwar, AIR 1961 SC 1378, and Madhusudan Das v. Narayani Bai and Ors., 1983 MPLJ 313, and thereafter weighed the evidence on record. He has considered the depositions of Smt. Padmavati Bai (IDW. 1), Bansal (IDW.5), Jagan Prasad Agrawal (IDW. 6) and Dalchand Agrawal (IDW. 9) and Gokul Prasad (IDW.7) who had described in detail about the formalities which were complied with during the ceremony of adoption. It is to be noted here that the mother of the defendant No. 2 had executed a deed of adoption Ex. D-11. Ex.D-11 is a registered document and as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956 a presumption is attached to such a deed. The plaintiff has not adduced any evidence to rebut the presumption. The only contention which was raised before the Court below as also here that the defendant No. 2 could not have been taken in adoption by the defendant No. 1 as he had completed 15 years of age. Ordinarily a child is to be adopted before 15 years of age. But an exception has been carved out under clause (iv) of Section 10 of the Act which protects certain customs and usages. If a boy who is more than 15 years of age the adoption can be sustained only on proof of special customs or usages governing the parties. On a perusal of material on record it transpires that parties to the suit are Agrawals by caste, and they are originally residents of village Bhalot in the State of Rajasthan and they are governed by Mitakshara School of Hindu Law. It has been brought in evidence that amongst Agrawals of the district of Haryana and Rajasthan there is ancient and well established custom and usages which permit the adoption of boys over 15 years of age. It has also been brought in evidence that Agrawals who have been migrated to M.P. and Maharashtra had brought this custom with them and they are governed by it. There is ample evidence on record to show that it is a well established custom. Apart from the oral evidence, a documentary evidence Ex. D-38 has also been brought on record to substantiate that there are instances where a boy of more than 15 years of age had been taken in adoption in this community. The learned trial Judge has considered the fact of giving and taking, the deed of execution in support of the adoption and migration of Agrawals from village Bhalot to Rajasthan State. On a perusal of the pleadings it appears that the only ground on which the factum of adoption was called in question is the age of the boy. There is no dispute that the boy was above 15 years of age. The learned trial Judge has held that the adoption was valid as there is custom in support of the same. He has referred to the oral evidence to justify the conclusion that in many families boys more than 20 years of age were being adopted amongst Agrawals. In this context we may profitably refer to the decision rendered in the case of Dhanraj Joharmal v. Soni Bai, AIR 1925 Privy Council 118, wherein it has been held as follows :-
"Among the Agarwallas the qualifying age for adoption extends to 32 years."
In this context, we may usefully refer to the decision rendered in the case of Laxminarayan Fattelal Rathi and Anr. v. State of Maharashtra, 1983 Maharashtra Law Journal 811, wherein it has been held as follows :-
"It is an established principle of law that if a custom has been followed by a particular community the same in essence becomes special usage modifying the ordinary Law of Succession, the only condition being it should be ancient and prevailing custom of the said community. The custom of adoption of a married person or of a person of any age has been accepted in the Marwari community or Maheshwari community as it is called. The said custom having been judicially recognised, it is not necessary to prove such custom by evidence in each case where the question arises. Such custom gets incorporated in the general law of the community and it is only for those who assert the opposite view who have to discharge the burden of disproving the said custom."
In this regard we may profitably refer to the decision rendered in the case of Gangadhar v. Surplus Land Determination Tribunal, AIR 1991 SC 1180, wherein a plaintiff was adopted when he was 22 years of age. Their Lordships taking into consideration that the adoption belongs to Bombay State and approving the view of the High Court that once the custom is judicially recognised, it does not require to be independently proved in subsequent cases.
In view of the aforesaid pronouncement of law and the evidence brought on record it is quite perceptible that there is an established custom in the Agrawals community that an Agrawal can adopt a person beyond 15 years of age.
9. The next issue that arises for consideration is whether the plaintiffs father, Jagan Prasad, was separated from the rest of the family before 50 years and whether the plaintiff is surviving member of coparceners of Ramrichhpal and his son. The other ancillary question that arises for consideration is that whether the properties held by Harishchand were acquired from the nucleus of the Joint Hindu Family properties. The learned trial Judge has considered the evidence of the plaintiff, Uma Prasad, the defendant No. 1 Padmavati Bai (IDW. 1) and the testimony of Smt. Kamla Bai (IDW. 15). The both IDW. 1 and IDW. 15 have categorically stated that they had never seen Jagan Prasad residing with his father and uncles and he was residing in a rented accommodation. It is borne out from evidence that Jagan Prasad was running his business separately, A separate "khata" was maintained in his name Ex.D- 26 and Ex. D-28 have been brought in support of the same. The learned trial Judge on scrutiny of the evidence has come to hold that Motilal and Ramrichhpal were indebted to one Smt. Gopi Bai. One Pt. Keshav Prasad had paid debt to said Gopi on behalf of Motilal and Ramrichhpal and both of them had executed an instalment bond in favour of Pt. Keshav Prasad. The bond was transferred in favour of Omkar Prasad on 4-5-1929 vide Ex. D-22. As it appears vide Ex. D-30 Ramrichhpal and Motilal had sold their double storied house situated at Seoni and the learned trial Judge after referring to this transaction has come to hold that Ramrichhpal was heavily indebted and was unable to pay his debts, and under this circumstance the testimony of the plaintiff, Uma Prasad that his grandfather did not suffer loss in hemp business was unbelievable, the learned trial judge has taken note of the fact that he and his father started living separately from the year 1930-31. From this evidence it is also clear that his father, Jagan Prasad, was doing separate Kirana business. It is in his evidence that he has pledged ornaments with firm Ramrichhpaf and Motilal and his father had executed the document as Ex. D-4. It is well settled in law that if there is money transaction for Joint Hindu Family between one who is lending and other who is borrowing and shown corresponding debts and credits in their books, it goes a long way to indicate that there has been disruption of the Joint Hindu Family. In the obtaining factual matrix the grandfather, Ramrichhpal, was heavily indebted and there was no finance with him to create a Joint Hindu Family nucleus. The materials on record do clearly show that each of the sons has started separate business. At this juncture, we may profitably refer to the decision rendered in the case of G. Narayan Raju v. Chamaraju and Ors., AIR 1968 SC 1276, wherein it has been held as under :-
"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the Joint family is a Joint Family business even if that member is the manager of the Joint Family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the Joint Family property or joint family funds or that the earnings of the business were blended with the joint family estate the business remains free and separate."
Testing on the anvil of the aforesaid pronouncements of law it is crystal clear that until a nucleus of the Joint Hindu Family property is proved or admitted no presumption arises that the whole of the property of Joint Hindu Family was joint. In the case at hand the evidence has been brought on record that Ramrichhpal had virtually become bankrupt in the year 1924-25. The Joint Hindu Family was left with no property. Late Jagan Prasad chose not to be a party and accordingly he had not signed the papers. His attempt was to escape from the liability of the Joint Hindu Family. He separated himself and started an independent business. Thus, there is no proof of formal partition but the circumstances lead to the fact that all the coparceners lived separately and had their separate business. Thus it is clear that at the time of death of Ramrichhpal the Joint Hindu Family had various houses. There is no evidence that when this property had been acquired. On the contrary, there is evidence that the house in which Ramrichhpal lived with his sons was owned by one Chanda Bai who had started business and separate living. In view of the eloquent evidence we have no hesitation in concluding that Jagan Prasad had completely separated from the rest of the family. Because of this finding the learned trial Judge has reached at the conclusion that Harishchand became exclusive owner of the properties which was bequeathed in his favour by Motilal. We do not find any perversity in the conclusion arrived at by the learned trial Court. The reasons given by the learned trial Judge to arrive at his conclusion are quite sound and impe ccable and there is no impasse to give the stamp of approval of this Court.
10. Resultantly, the appeal fails and the same is accordingly dismissed. However in the peculiar facts and circumstances of the case the parties shall bear their own costs of this appeal.