Jharkhand High Court
Kajal Kumar Goswami vs Taramani Debya on 30 July, 2019
Author: Ananda Sen
Bench: Ananda Sen
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 660 of 2015
1. Kajal Kumar Goswami
2. Binoy Kumar Goswami
3. Basanti Goswami........................ Appellants
Versus
1. Taramani Debya
2. Godabari Goswami ............... Respondents
.......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Appellants : Mr. Kaushik Sarkhel, Advocate
Ms. Bandana Sinha, Advocate
For the Respondents : ----
......
ORDER
C.A.V. On 23/07/2019 Delivered On. 30/07/2019 4/30.07.2019 This appeal under Section 100 of the Code of Civil Procedure, is
directed against the judgment dated 16th October, 2015, passed by the District Judge-II, Jamtara in Title Appeal No. 29 of 2015, by which he dismissed the appeal preferred by the defendants-appellants and upheld the judgment and decree dated 29.04.2015 (decree signed on 12.05.2015), passed by the Civil Judge-I, Jamtara in Title suit No. 16 of 1989.
2. The appellants were the defendants and appellants before the trial court and the first appellate court respectively.
3. The plaintiff-respondents brought a suit for declaration of right, title, interest and confirmation of possession and in the alternative recovery of possession in respect of the property left by Nilkantha Goswami. They further prayed that the deed of adoption, allegedly executed by Nilkantha Goswami adopting defendant no. 1 namely, Kajal Kumar Goswami bearing Adoption deed no. 21 dated 24.01.1986, be declared as null and void and be cancelled. The plaintiffs submitted that plaintiff no. 2 is the legally married wife of Nilkantha Goswami and plaintiff no. 1 is their son.
4. It is the case of the plaintiffs that defendant no. 1 claimed that Nilkantha Goswami has adopted him, but the said adoption is bad in law and by virtue of the said adoption, defendant no. 1 cannot inherit any property of Nilkantha Goswami. The lands involved in this suit belong to one Gauri Devi. Said Gauri Devi has a daughter namely, Michhali Bala, who was married to Dhajadhari Goswami. After the death of Gauri Devi the property devolved upon her daughter and after the death of her daughter Michhali Bala, Nilkantha Goswami, the husband of Michhali Bala inherit the same. From his first wife Nilkantha had one daughter and one son but they predeceased. After the death of wife, son and daughter, Nilkantha married with this plaintiff no. 2 and out of the said wedlock, plaintiff no. 1 [2] was born. When plaintiff no. 2 conceived and was at the advance stage, she was taken to the house of her mother as there was no other family member in the house of Nilkantha. There the plaintiff no. 1 was born. Nilkantha used to help them by money and used to visit his matrimonial home but slowly, stopped visiting and started neglecting them. Plaintiff no. 2 thus started living with her mother. On receipt of the information that Nilkantha Goswami has died, the plaintiffs went to the village of Nilkantha Goswami and while they intended to possess the land, defendant no. 2 objected and was later on found that the Jamabandi was transferred in the name of Kajal Kumar Goswami, the minor son of defendant no. 2 on the ground that the minor boy was adopted by Nilkantha. The plaintiffs stated that they were not at all aware of the said adoption, which is illegal. On such background, the suit was filed.
5. The defendants opposed the claim and disputed the fact that plaintiff no. 2 was married to Nilkantha. Their claim is that plaintiff no. 2 is married with one Pandu Goswami and she is legally married wife of Pandu Goswami. The case of the defendants is that Nilkantha was married only once and it is an admitted fact that both children, born out of the said wedlock, died and after the death of the wife, Nilkantha never married. Surprisingly, the defendants admit that Taramani Debya, i.e. plaintiff no. 2 used to reside with Nilkantha but without marriage and they were in live in relationship. It is the further case of the defendants that on coming to know about the said live in relationship, the mother of plaintiff no. 2 took her alongwith her and she never came to the village of Nilkantha. She was later on married to Pandu Goswami. So far as adoption deed is concerned, defendants stated that the same is valid and all the ceremonies of adoption had taken place and thus, the deed cannot be declared invalid.
6. On the pleadings of the parties, the trial court framed six issues. Issue nos. (iv) and (v) is of utmost important, which reads as follows:-
"(i) to (iii).....
(iv) Whether the plaintiff No. 2 is the widow of Nilkantha Goswami and Plaintiff No. 1 is the son of Nilkantha Goswami.
(v) Whether the deed of adoption No. 21 dated 24.01.1986 is illegal, void, unenforceable in law and is fit to be cancelled."
7. Before the trial court, eight witnesses were examined on behalf of the plaintiffs and several documents were exhibited.
8. On behalf of the defendants twelve witnesses were examined and some documents were exhibited including the deed of adoption.
9. After hearing the parties the trial Court, decreed the suit in favour [3] of the plaintiffs-respondents holding that Taramani Debya, i.e. plaintiff no. 2 is the wife of Nilkantha and plaintiff no. 1 is the son of Nilkantha and the adoption deed dated 21.04.1986 of Kajal Kumar Goswami by Nilkantha Goswami is illegal, void and inoperative and does not confer any right upon him.
10. Being aggrieved by the said judgment, title appeal no. 29 of 2015 was filed. The first appellate court independently considered the points, which were raised and discussed the evidence on the issue and has dismissed the appeal and has held that Taramani Debya, i.e. plaintiff no. 2 is the widow of Nilkantha and plaintiff no. 1 is the son of Nilkantha and the adoption deed is bad.
11. Against concurrent finding of facts, the appellants have moved this Court by filing this second appeal under Section 100 of the Code of Civil Procedure.
12. Mr. Kaushik Sarkhel, learned counsel appearing for the appellants submits that both the courts below failed to take into consideration that Taramani is the wife of Pandu Goswami and not of Nilkantha and thus, both the courts below have committed error in arriving at the finding. He submits that both the courts below have wrongly held that plaintiff no. 1 is the son of Nilkantha and thus decreed the suit and dismissed the appeal. He further submits that it is evident from the statement of the witnesses which clearly suggests that plaintiffs never came to the village of Nilkantha and thus, there exists no question of seeking consent at the time of adoption. He further submits that the witnesses have also stated that Taramani was having a live in relationship with Nilkantha but they were not married. He further submits that in absence of the valid marriage, neither the suit could have been decreed nor the adoption deed could have been annulled. He further submits that the first appellate court only on the ground that there was some illicit relationship between Taramani and Nilkantha, has decreed the suit and held that Taramani to be the wife of Nilkantha, which is absolutely bad. He relies upon a judgment passed by the Hon'ble Supreme Court in the case of "Bachhaj Nahar- versus- Nilima Mandal & Another, reported in (2008) 17 SCC 491." He further submits that according to him, the substantial question of law, in this case would be as follows:-
"Whether the learned Court below erred in law by giving a suo motu finding that Taramani (Plaintiff) was married to Pandu Goswami for the second time as this fact was neither pleaded by the plaintiff or by the defendant and even no evidence was produced on this aspect by either of the parties."[4]
13. After hearing the counsel for the appellants and on going through the records, I find that the question before the trial Court and the appellate Court is:-
"(i) Whether the plaintiff no. 1 is the son and plaintiff no. 2 is the wife of Nilkantha Goswami and
(ii) Whether the adoption deed executed by Nilkantha Goswami in favour of Kajal Kumar Goswami is valid or legal."
14. Both the aforesaid points have been decided in favour of the plaintiffs. Whether plaintiff no. 1 is the son or plaintiff no. 2 is the wife of Nilkantha is a pure question of fact. Both the courts below concurrently found after going through the evidence that plaintiff no. 1 is the son and plaintiff no. 2 is the wife of Nilkantha Goswami. Both the courts discussed the evidence of the witnesses independently and came to the aforesaid finding and I find that there is no perversity in the same. The proposed substantial question of law, framed by the appellants, has got no relevance in this case. Whether Taramani for the second time married with Pandu Goswami or not is also of no relevance. Thus, even if any finding has been given to that effect will have no bearing in this case, more so, when specific finding has been given by both the courts below that Taramani is the wife and plaintiff no. 1 is the son of Nilkantha. This finding is based on evidence. This Court under Section 100 of the Code of Civil Procedure, cannot set aside the finding of facts arrived at by both the courts below.
15. On the adoption deed, I find that this issue depends on the earlier issue. The person adopted is a male child. The Courts have already held that plaintiff no. 1 is the son of Nilkantha. As the concurrent finding of fact is there then it is to be seen whether Nilkantha could have adopted defendant no. 1. Admittedly, both the parties are Hindu. Adoption of a Hindu is governed by Hindu Adoption and Maintenance Act, 1956. Section 7 of the said Act provides that any male of sound mind, who is not a minor, has the capacity to take a son or daughter in adoption. There is a proviso to Section 7, which provides that if his (person adopting) wife is living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
16. Section 11 of the said Act prescribes other conditions. Section 11(i) provides that if the adoption is of a son, the adoptive father or mother by whom the adoption is made, must not have a Hindu son or son's son or a son's son's son whether by legitimately or by adoption.
[5]17. When the aforesaid law is applied to this case, I find that at the time of adoption of defendant no. 1, Nilkantha had a son, i.e. plaintiff no.
1. Be it noted that both the courts below have given this concurrent finding that plaintiff no. 1 is the son of Nilkantha. In presence of a son, as per law, another son cannot be adopted.
18. It is the case of the plaintiff that plaintiff no. 2 was alive and her consent was not taken at the time of adoption. This fact is admitted that there is no consent. To this the defendant firstly, denied the relationship of husband and wife between plaintiff no. 2 and Nilkantha. This denial has been rejected by both the courts below. The second plea, taken by the appellant, is that the wife never came to the house of Nilkantha so there is no question of taking consent. This cannot be a ground for not taking consent. The consent is waived only on the conditions provided in the proviso of Section 7 of the said Act, i.e. the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. Only on happening of these three conditions, the consent of the wife is not necessary. Except these three conditions, whatever be the situation, consent of the wife is necessary for a male Hindu before taking adoption. Residence of wife at a different place is not a condition for waiving the said condition.
19. Thus, I find that the deed of adoption is against the provision of Sections 7 & 11 of the Hindu Adoption and Maintenance Act, 1956 and is not a valid document. Both the courts below have concurrently held that the document is bad and have rejected the contention of the appellants. There is no illegality in the decision.
20. Thus, in view of the concurrent finding of facts and well established provision of law, I find no merit in this appeal. The judgments of both the courts below, being concurrent finding of facts need no interference. Accordingly, this second appeal is dismissed.
(Ananda Sen, J) Mukund/-cp.2