Madhya Pradesh High Court
Bholooram (Bhola) And Ors. vs Ramlal And Ors. on 1 February, 1989
Equivalent citations: AIR1989MP198, AIR 1989 MADHYA PRADESH 198, (1989) JAB LJ 387 (1989) MPLJ 328, (1989) MPLJ 328
JUDGMENT P.C. Pathak, J.
1. This second appeal is by the three defendants against the judgment and decree passed by the Court below in favour of plaintiff/respondent No. 1.
2. The plaintiff filed a suit for declaration that the sale and mortgage-deeds executed by his adoptive father Ganpatsingh defendant No. 1, in favour of other defendants are not binding on him to the extent of his 1/3rd interest, partition of his share and possession together with mesne profits on the ground that on 18-4-1960 according to the caste custom he was given by his natural father Kalaya (PW. 9) and taken by Ganpatsingh in adoption and also executed a registered deed of adoption (Ex.P. 18). Plaintiff and Ganpatsingh also entered into an agreement that if the plaintiff repaid the outstanding dues of Rs. 3000/- he shall not transfer without plaintiff's consent any land belonging to him, which was reduced to writing Ex.P. 15. Ever since then he started living with the adoptive father and mother. Later on Ganpat with intent to deprive the plaintiff of his rights as adopted son in his property executed a usufructuary mortgage in favour of defendants 5 and 6 on 29-10-1967 without any legal necessity in breach of Section 165 of M.P.L.R. Code. He also executed a sale deed on 29-10-1967 which is illegal and in-operative to the extent of his 1/3 in it. The sale deed so also the mortgage deed were without consideration and his 1/3rd interest in the suit property is not affected by those transfers. He prayed for a partition, possession, permanent injunction restraining the defendants not to interfere with his possession and mesne profits from the date of suit till the delivery of possession @ Rs. 5000/- per year.
3. Defendant Ganpatsingh and his wife Ramkooverbai defendant No. 3 denied the factum as also validity of adoption, on the ground that no consent from the two wives, Jatibai defendant No. 2 and Ramkooverbai defendant No. 3 were taken. The plaintiff did not repay loan of Rs. 3000/- or any other amount nor Ganpat entered into any agreement with him undertaking not to transfer any property. The transfers made in favour of defendants 4, 5 and 6 are for consideration. The defendants also raised other objections which are not material for this appeal. Defendant 2 Jatibai did not file her written statement and was proceeded ex parte on 10-5-1968.
4. The learned trial Court dismissed the suit on findings that the plaintiff has not taken in adoption defendant No. 1 had not executed any agreement undertaking not to transfer his property, the plaintiff cleared the loan of Rs. 3000/-. The transfers made by the defendant No. 1 in favour of other defendants are valid and with consideration and are not affected for want of plaintiff's consent. Defendants 4, 5 and 6 are bona fide purchasers in good faith for value.
5. On appeal by the plaintiff, the first appeal Court held that the absence of consent from wife who has deserted her husband for about 20-25 years or had been indifferent towards her husband will not invalidate an adoption which as a fact had taken place. This apart, when the plaintiff went to Jatibai land told her that he was being adopted, she told him that she had no objection and that even though Jatibai was impleaded as defendant No. 2, she never opposed the suit in the trial Court or in the appeal Court, therefore, it could safely be inferred that Jatibai had no objection to the plaintiff's adoption. The appellate Court also held that the absence of signature in the adoption deed of the natural father will not preclude raising of presumption Under Section 16 that the adoption has been made in compliance with the provision of the Act unless rebutted by disproof of the facts. On these findings, the Court below ;held that the plaintiff is the adoptive son of Ganpat and has 1/3rd interest in the suit property. Similarly the other issues were decided in favour of the plaintiff. In the conclusion, the appeal Court set aside the sale-deed and the mortgage deed of the suit property and declared that Ganpat had only 1/3rd interest in it. He could not, therefore, transfer the entire property, but could transfer only his 1/3rd interest in it. In this view of the matter, the plaintiff was held entitled to possession of the entire property. The defendants 4, 5 and 6 if they are so advised may file a suit for partition of 1/3rd interest, which alone are found to have purchased from Ganpat. Plaintiff was also held entitled to get possession of survey No. 94 transferred during the pendency of the suit to Dwarka Prasad. Confirming that the mesne profits could be taken as Rs. 5000/- per year, the plaintiff, the defendants 2 & 3 have 1/3rd share each namely Rs. 1666.66 p. per year and the plaintiff will be entitled to recover mesne profits at this rate from defendants 4 to 6 on payment of fore-fees.
6. The first question for decision is whether the finding of the Court below that the plaintiff was validly adopted is vitiated by any illegality. After the enactment of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act), which came into operation w.e.f. 21-12-1956, radical changes were made in the known laws of adoption prevalent amongst the Hindus. Section 4 of the Act provides that in respect of all mutters provided for in this Act, this Act prevails despite any provision relating thereto in any other Act previously existing or incident of any custom of Hindu law which previously governed such matters. By reason of this section, any custom or usage as part of the Hindu law in force prior to the commencement of the Act has ceased to have effect in regard to any matter for which provision has been made in Chapter II except what has been expressly provided in the Act. See Daniraiji Vrajlalji Junagadh v. Maharaj Shri Chandraprabha, AIR 1975 SC 784. Section 5 provides that no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. Thus an adoption which fails to fulfil the conditions prescribed by the Act is non est in the eye of law. Section 6 provides the requisites of a valid adoption. Section 7 provides that any male Hindu can take in adoption a boy or a girl. If he has a wife at the time he cannot take the adoption except with her consent, and if he has more than one wife, the consent of all the wives is necessary. Non-compliance with the proviso to Section 7 is fatal to validity of the adoption and renders the adoption invalid. Krushna Chandra Sahu v. Pradipta Das, AIR 1982 Orissa 114.
7. The plaintiff pleaded that on 18-4-1960 according to caste custom and necessary ceremonies, the plaintiff was adopted by Ganpat (who) also executed an adoption deed and got the same registered in the plaintiff's favour. Ever since then, the plaintiff lived with Ganpat as his adopted son. Defendant Ganpat and his wife Ramkooverbai filed written statements admitting execution and registration of the adoption deed, but denied that the essential ceremonies of giving and taking of the plaintiff were performed, or that before the adoption, consent of his both the wives Jati and Ramkooverbai were taken; which was a condition precedent under the law. Objection was taken as to the absence of a specific plea about consent of wives. The defendants submitted that neither of the wives of Ganpat gave consent for the alleged adoption.
8. Despite objection raised in the W. S. the plaintiff did not file any re-joinder. Learned counsel for the respondent/plaintiff relying on Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60, submitted that the plea as to adoption in para 2 of the plaint specifies the essentials required to plead an adoption.
9. In Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114; it was held that a very heavy and serious onus rests on person who seeks to displace the natural succession to property by the act of an adoption. The proof of adoption as well as the power to adopt of the adopter requires almost a strict and severe scrutiny. Lal Harihar Pratap Bakhsh Singh v. Thakur Bajrang Bahadur Singh, AIR 1937 PC 242 and Lal Durga Bakhsh Singh v. Rani Brij Raj Kuar, AIR 1938 PC 40.
10. Order 6, Rule 2 provides that every pleading shall contain all material facts which must be proved at the trial by a party to establish the existence of cause of action and get decree. The plaintiff failed to plead specifically that his adoption took place with the consent of both the wives of Ganpat. Learned counsel for plaintiff relying on Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60, submitted that a party relying on an adoption need only plead the bare fact of adoption. It is not necessary to plead that all ceremonies necessary and essential for validity of the adoption were duly performed. The adoption Act made radical changes in the procedure, form and the persons who could be adopted. The decision in Maroti's case (supra) was rendered before the enactment of Adoption Act. After this Act, it is now essential for the plaintiff to state facts material to establish a valid adoption. Consent of wife is a material fact which ought to have been pleaded, at least through re-joinder, after an objection was taken in the written statement as laid down in Mst. Kirpal Kuar v. Bachan Singh, AIR 1958 SC 199. The trial Court framed an issue on the question of consent.
11. The plaintiff in his statement as P.W. 2 in para 2 of his statement stated that Jatibai lived in Ikhangaon. Before the adoption, he went to Jatibai and told her that he was being taken in adoption by Ganpat. Jatibai then replied that she had no objection. Counsel for the defendants raised objection against the recording of the said evidence, but was overruled by the trial Court. In cross-examination para 24, he stated that he had instructed his counsel about the talk with Jatibai, but could not explain as to why that fact was not pleaded in the plaint. Apart from the absence of specific plea, at the time of adoption, the plaintiff was just a young lad of 7 to 9 years and it is most improbable that this boy of tender age would have gone to the village of Jatibai. He claimed that he had a talk with Ganpat and at that time Ramkoover was also present. On an enquiry Ramkoover had replied that she was also agreeable to the proposed adoption by her husband. The proviso to Section 7 of the Adoption Act prohibits any male from adopting any other person except with the consent of his wife. The explanation provides that if a person has more than one wife living at the time of adoption, the consent of all the wives is necessary. This section deals with the capacity of a male Hindu to take in adoption. Apart from the soundness of mind, attainment of majority, the person, should also be armed with the consent with his wife and if he has more than one, the consent of all the wives. Therefore a person of unsound mind or a minor or a person who is not armed with the consent of his wives is disqualified or in other words, has no capacity to take any one in adoption. The absence of consent deprives him of the capacity to take any one in adoption.
12. Learned counsel for the plaintiff/ respondent argued that the lower appeal Court found that Jatibai lives separate from her husband Ganpat for 20-25 years and, therefore, the absence of consent of such a wife is not fatal. The proviso to Section 7 dispenses with the consent of wife when she has renounced the world or has ceased to be a Hindu or has been declared by the Court to be of unsound mind. The three disqualifications contemplated by the proviso, in the opinion of the lower appeal Court, are merely 'illustrative' and the Court can conceive of many other disqualifications by which the wife may be suffering and her consent will not be essential. He posed a question as to what will happen in a case where a wife, without obtaining divorce, is engaged in prostitution or is leading a life of a concubine of some one or has absconded to unknown place. In such cases, how a husband can be deprived of his right to adopt in the absence of consent from such a wife. In my opinion, lower appeal Court was not justified in enlarging the scope of the proviso. A wile, who without obtaining divorce carries on prostitution or is leading a life of concubine of some one or has absconded to unknown place, does not cease to be a wife so as to be disqualified from inheritance nor is she divested of her right in the joint family property. Similarly if a wife has absconded to a unknown place, it cannot be construed as her death in the eye of law unless the requirements of Section 107 of the Evidence Act are fulfilled. So long as, the woman continues to be a wife in the eye of law, her consent is necessary for the validity of an adoption Under Section 7. The Court below was also not right to treat the disqualifications in the proviso to Section 7 as illustrative. On the other hand, it must be held that the dispensing with consent of a wife is restricted to a wife suffering from any one or more of the disqualifications mentioned in it.
13. Learned counsel for the plaintiff further argued that the lower appeal Court relied on the statements of Ganpat (D.W. 1), Ramkunwarbai (D.W. 2) and Ramlal (P.W. 1) and recorded a finding that Jatibai had no objection to the adoption of Ramlal. Therefore it was not essential for her to give express consent by participating during the ceremony of adoption. The finding cannot be assailed in second appeal. The argument cannot be accepted since the approach of the lower appeal Court was on an incorrect interpretation of the proviso to Section 7. Moreover, the Court below equated 'absence of objection' with positive 'consent' required by the section. Ramlal's statement merely shows that Jatibai had 'no objection' to the adoption, which cannot be equated with positive consent.
14. Similarly the reference to the statements of Ganpat and Ramkunwarbai without considering their statements in cross-examination will not preclude this Court from examining the correctness of the finding. The Court below failed to take into consideration that these two defendants in the written statement raised a specific objection that there was no consent to the adoption from Ramkunwarbai or Jatibai. Ganpat stated that at the time of adoption of Ramlal, Jati and Ramkunwarbai both were present in his house and he had obtained consent from Jatibai. In cross-examination, he admitted that Jatibai had been frequently visiting him and the last visit was two years before. In para 34 he admitted to have filed written statement in which he stated as portions A and B. He did not explain the contrary statements in it. Ramkunwarbai admitted in cross-examination that they had left village Lahadgaon after selling away the suit property because of persistent misbehaviour and illtreatment by the plaintiff from 3-4 years before and came to village Ghughra Khedi; where they also purchased agricultural lands. This is also pleaded in para 3 of their written statement that the plaintiff approached them and impressed on them he will see that the property sold is restored to them. He also assured to act as per their wishes. Lastly, just before entering in the Court, Ramlal had instructed her the statement which she had to depose as witness. At the end, she desired that eventually the property should be enjoyed by the plaintiff and she was only interested in bare maintenance.
15. The admissions by Ganpat and Ramkunwarbai in their cross-examinations show that they took a stand contrary to their written statements, on account of fear, thereof and promise by the plaintiff. It was their specific case that the plaintiff by inflicting persistent illtreatment to them had made it impossible for them to continue any longer in Lahadgaon and had no option but to sell away the property and shift to Ghughra Khedi. The constant illtreatment for a period of 4 years must have created phobia in their minds. With that history, the plaintiff again approached them to reconcile his relations and made promises as mentioned above. Therefore, it must be held that Ganpat and Ramkunwarbai, both cannot be relied when they stated that Jatibai was present at the time of adoption or her consent was obtained before the adoption.
16. From the foregoing discussions, it must be held that Ganpat failed to obtain and Jatibai never gave her consent for the alleged adoption of the plaintiff. The adoption must be declared invalid on this count alone. However, I will address myself yet on another aspect; namely the presumption of valid adoption drawn by the Court below from the registration of adoption deed (Ex.P. 18). Section 16 provides certain presumptions to be raised with reference to adoption whenever a registered document is produced before the Court, purporting to record an adoption made and signed by the parties. In order to raise the presumption, the following conditions must be satisfied :--
i. there must be a document;
ii. it must be registered under the law in force;
iii. it must purport to record an adoption which had taken place;
iv. the document must have been signed by both the giver and taker of the child in adoption and not only one of them; and v. it must be produced before the Court.
See Md. Aftabuddin Khan v. Smt. Chandan Bilasini, AIR 1977 Orissa 69. The lower appeal Court found that plaintiff's natural father Kalayan, the giver had not signed the document. However since Kalayan entered in the witness-box as P.W. 9 and stated that he had given the plaintiff in adoption to Ganpat, despite the absence of his signature in Ex.P. 18 it must be held that adoption was in accordance with the requirements" of the Adoption Act and the burden shifted on the defendant to prove that the adoption was contrary to law. Inference against the , defendants was also drawn for non-production of Jatibai as their witness. This approach of the Court below was patently erroneous. The presumption from a registered document of adoption is a rebuttable presumption and both the factum and the validity can be disproved, but the presumption is not to be made unless the essential conditions laid down Under Section 16 are satisfied. It was held in Naresh v. chrajbai, 1979 MPLJ 591, that for raising a presumption of valid adoption from a registered document produced in the Court, it must be proved that it was signed by the persons giving and taking the child in adoption. Therefore, it must be held that no presumption as to the factum of adoption and its validity could be drawn from adoption deed Ex.P. 18 merely because it is a registered instrument.
17. The Court below committed illegality in misplacing the burden on the defendants to disprove the factum of adoption and invalidity in it. He was not justified in drawing inference against them for not examining Jatibai as their witnesses. It is well settled that the primary burden to prove the adoption and its validity rests on the person who seeks to displace the natural succession by alleging his adoption. See Smt. Gopi v. Madanlal, AIR 1970 Raj 190.
18. Learned counsel for the plaintiff further argued that Jatibai was defendant No. 2 in the suit, but she chose to remain ex parte. Order-sheet dt. 18-1-1969 shows that Jatibai participated in the proceedings but she did not challenge in cross-examination the statements of plaintiffs witnesses P.W. 2 to P.W. 9. She also did not enter the witness-box of her own to deny the consent. Therefore, it should be inferred that she consented to adoption. The argument does not carry any weight. Her failure to file written statement or cross-examination the plaintiff's witnesses or enter to witness-box cannot give rise to any inference as to the factum and/or validity of adoption muchless as to her consent.
19. It was next argued by the learned counsel for the plaintiff that the finding of the appeal Court that Jatibai had consented to the adoption was not challenged by Ganpat and Ramkunwarbai by filing appeal before this Court and that the transferees; namely the present appellants who acquired interest in the suit lands subsequent to the date of adoption, cannot challenge adoption at all. It was also suggested that the Court below passed a decree for partition which became final by failure of Ganpat and Ramkunwarbai to file appeal against the decree. The transferees are not the members of the coparcenery and, therefore, they have no right to file the present appeal. Even if they have any right, its scope must be restricted to the challenge as to the transfers in their favour. All these arguments are devoid of any substance. Once it is admitted that the appellants are transferees and were also parties in the Courts below, they have every right to support the transfers in their favour not only by showing that the transfer deeds executed by them were valid and proper but also by showing that those transfers were not beyond his powers. In other words they have a right to show that there was no infraction of their vendor's interest in the suit property by the alleged adoption of the plaintiff. The transferees have a right to assail the adoption on all available grounds. Section 261 of Hindu Law by Mulla exhaustively deals with the rights of a Purchaser of a coparcener's interest. He has a right to sue for partition and possession. He may in such a suit even ask the court to allot his vendor the specific property sold to him. Therefore, it is not correct to say that the transferees have no right to challenge the decree passed against them by the Court below.
20. It was also argued that Ganpat, having executed an agreement in favour of the plaintiff, had no power to dispose of the property. Reliance was placed on Section 13 of the Adoption Act. This Section lays down that unless there is any agreement to the contrary, an adoption does not deprive the adoptive father to dispose of property. However, if there is any agreement to the contrary, that is binding on the adoptive father. In order to attract this section, the plaintiff has first to establish that his adoption was valid and that his adoptive father executed an agreement binding himself not to alienate the property. The adoption is invalid for want of consent of Jatibai and therefore the plaintiff cannot build any argument on the basis of agreement Ex.P. 15. This apart, the plaintiff also failed to prove execution of the agreement. According to Fattu (P.W. 5), Ramlal was aged about 6-7 years; whereas according to his natural father Kalaya (P.W. 9) he has 9-iO years old. Document Ex.P. 15 recites agreement between Ganpat and Ramlal imposing certain conditions on both. The plaintiff was required to pay the debt of Rs. 3000/- to Ganpat's creditor; whereas Ganpat bound himself not to dispose of property without the plaintiff's consent. The law does not conceive of any contract with a minor. It is true that a minor is not disqualified to be a purchaser or a mortgagee. Raghava v. Srinivasa, (1917) ILR 40 Mad 308 : (AIR 1917 Mad 630) (FB). But where the contract imports a covenant by the minor to pay rent or other reciprocal obligation, the contract is void. Pramila Ball Das v. Jogesher, 46 Ind Cas 670 : (AIR 1918 Pat 626), Ramkunwarbai (D.W. 2) stated that Ganpat had entered into an agreement with Ramlal; whereunder Ramlal was to repay the debt of Rs. 3000/- and on such repayment Ganpat would not alienate property. In para 12 of her statement she denied that any agreement was executed by Ganpat. Ganpat also stated that in pursuance of agreement Ramlal was to pay the debt and on such payment, he was not to transfer the property. In para 35, he stated that apart from Ex.P. 18 he did not execute any agreement in plaintiff's favour. Ramlal also states that Ganpat had entered into an agreement with him; namely that he will adopt him in case he repaid loan of Rs. 3000/- to his creditor. Thus the agreement Ex.P. 15 is an outcome of contract between Ganpat and Ramlal a minor. Such a contract is void. Even if document is admissible, in Chhatra Kumari Devi v. Mohan Bikram Shah, AIR 1931 PC 196, it was held that if there was a breach of agreement, the adoptee only had a right to sue his adoptee father for compensation. Therefore, the plaintiff could not sustain his claim against the transferee even on the basis of agreement Ex. P. 15.
21. In view of the foregoing discussions, it is held that the plaintiff failed to establish that he was validly adopted by Ganpat. He also failed to establish that he has any right under Ex.O.15. On these findings alone the appeal deserves to be allowed. The other grounds urged by the appellant need not therefore be examined.
22. The appeal if allowed. The judgment and decree passed by the court below are set aside and instead the judgment and decree dismissing the plaintiff's suit is restored with costs throughout. Counsel's fee Rs. 300/- if certified.