Rajasthan High Court - Jaipur
Krishan Lal And Ors. vs Raja Ram And Anr. on 23 May, 1996
Equivalent citations: 1996(3)WLC8, 1996(1)WLN333
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT
M.G. Mukherji, Actg. C.J.
1. This special appeal is directed against a judgment and decree dated 12th February, 1987 passed by a learned Single Judge of our Court in S.B. Civil Regular First Appeal No. 86 of 1976 partly allowing the appeal as filed by the plaintiff Raja Ram thereby partly setting-aside and modifying the judgment and decree dated 5.5.1976 in Civil Original Case No. 9/72 re-numbered as 40 of 1975 as passed by the learned Additional District Judge, Hanumangarh. While the learned trial Judge dismissed the suit as filed by the plaintiff Raja Ram claiming the shave in the property of his adoptive father defendant No. 4 Pola Ram, holding the adoption not valid in law, the learned Single Judge not only held the adoption valid but also held that the sale executed by the defendant No. 4 Pola Ram in favour of the defendants No. 1 Krishan Lal S/o Nathu Ram and No. 2 Raja Ram S/o Nathu Ram was null and void as the joint family property was sold without any legal and family necessity. He also declared that the Will executed by the defendant No. 4 Pola Ram in favour of the defendant No. 3 Nathu Ram S/o Chhoga Ram will not affect the lights of the plaintiff Raja Ram as regards the half portion of the agricultural land described In para 3 of the plaint as also half share in the houses situated at Manaksar and Suratgarh belonging to the plaintiff- Raja Ram and defendant No. 4 Pola Ram jointly.
2. The plaintiff Raja Ram filed a suit on 3.8.1968 for cancellation of the sale-deed dated 11.7.1968 executed by defendant No. 4 Pola Ram in favour of his two nephews Krishna Lai and Raja Ram sons of Nathu Ram and the Will executed in favour of Nathu Ram dated 11.7.1968 by Pola.Ram contending inter-alia that Pola Ram adopted the plaintiff Raja Ram on 1.1.1962 by a registered adoption deed with full ceremony according to law. The defendant No. 4 Pola Ram alleged to be the adoptive father of the plaintiff died during the pendency of the suit. The plaintiff respondent No. 1 Raja Ram alleged that defendant No. 4 Pola Ram owned 21 Bighas of land in Chak No. 36 P.B.N. and 14 Bighas and 4 Biswas of land in Chak No. 37 P.B.N. In Tehsil Suratgarh. in all he owned 35 Bighas and 4 Biswas of land. He also owned one house at Matasar Khuni and one house at Suratgarh. According to the plaintiff, all these properties were co-parcenary properties because it passed in the hands of defendant No. 4 Pola Ram from his father and as the plaintiff was adopted by Pola Ram, it became coparcenary between Pola Ram and the plaintiff. It has been alleged that the entire agricultural land has been sold in favour of the. defendants No. 1 and 2 for a consideration of Rs.75,000/- and a Will was made regarding the houses in favour of Nathu Ram by a registered deed. The plaintiff alleged that as the property was an ancestral property his adoptive father defendant No. 4 Pola Ram could not have executed any Will in favour of defendant No. 3 Nathu Ram and could not have sold his property in favour of defendants No. 1 and 2 without any family necessity and legal necessity. Initially, the plaintiff filed the suit in the forma pauperis, which was resisted by the defendants and after enquiry, it was held that the plaintiff had sufficient means to pay the Court fees. Accordingly, the plaintiff was directed to put in the Court fees and after such payment, the suit was registered in a regular way.
3. A joint written statement was filed on behalf of defendants No. 1 to 3. It was pleaded that Pola Ram never adopted the plaintiff and no customary rites were performed. No adoption deed was executed. The plaintiff never lived with Pola Ram. It .was averred that defendant No. 4 Pola Ram never got the plaintiff Raja Ram married, but he was actually got married by his own natural father Hajari Rain. It was denied that the property in dispute was a coparcenary properly. It was alleged that the plaintiff and Pola Ram 'had never Constituted joint Hindu family and the plaintiff was never a coparcener. It was averred that all the properties belonged to Pola Ram as sole surviving co-parcener. Pola Ram had every right to sell the property on 11.7.1968 to defendants No. 1and 2 and further he had every right to make the Will in favour of defendant No. 3 Nathu Ram. It was further averred that he was all alone and his wife died long ago. He had sold the property for legal necessity to pay the debts and to go on pilgrimage. It was further averred that according to Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956, the plaintiff acquired no right as an adopted son. The property in question was Pola Ram's personal property.
4. The trial Court framed several issues and one of them was to the effect as to whether the plaintiff was the adopted son of Pola Ram. The other issue was as to whether the property in dispute was a co-parcenary property or whether it was a personal property of Pola Ram. There was yet another issue as to whether the Will executed by Pola Ram was invalid and was executed under undue influence. The further issue was as to whether the sale deed was without consideration. The other material issue was whether the property was transferred by Pola Ram for legal necessity provided it was held to be a co-parcenary property. Last but not least, the issue was whether the plaintiff acquired no rights under Section 13 of the Hindu Adoption and Maintenance Act and whether the plaintiff acquired no rights in the property as alleged -in paragraphs 12 and 13 of the written statement.
5. The trial Court dismissed the suit on 5.6.1976. The trial Court decided issue No. 1 as to the question of adoption and held that the adoption was not in accordance with law. As regards the other issue as to whether the property in dispute was a co- parcenary property or it was a personal property of Pola Ram, it was decided in favour of the plaintiff and the trial Court held inter-alia that the property in dispute was an ancestral property of Pola Ram. The other two issues as to whether the Will executed by Pola Ram was invalid and was executed, under undue influence and whether the sale deed was without consideration, the trail Court decided .such issues against the plaintiff declaring interalia that the Will was not invalid and was not executed under undue influence and the sale deed was not without consideration. It was held that the Ex.A-4, the Will was not executed under undue influence and Ex.A-3, the impugned sale deed was for a valid consideration. As regards whether the property was transferred by Pola Ram for legal necessity provided it was so held that it was a co-parcenary property, the trial Court decided the issue against the defendants and it was held that the sale deed Ex.A-3 was for legal necessity. As regards the other penultimate issue as to whether the plaintiff acquired no rights under Section 13 of the Hindu Adoption and Maintenance Act and whether the plaintiff acquired no rights in the property as alleged in paras 12 and 13 of the written statement, it was held inter alia in favour of the defendants that Pola Ram had every right to effect sale of the disputed property. The suit was ultimately dismissed.
6. Against the aforesaid judgment and decree of the learned Additional District Judge, Hanurriangarh, the plaintiff Raja Ram preferred first appeal before this Court and it was partly allowed on 12.2.1987. It was held that the sale executed by defendant No. 4 Pola Ram in favour of defendants No. 1 and 2 was null and void as the joint family property was sold without any legal necessity and family necessity. It was further held that the Will executed by defendant No. 4 Pola Ram in favour of defendant No. 3 Nathu Ram will not affect the rights of the plaintiff Raja Ram as regards the half portion of the agricultural land described in para 3 of the plaint as also half share in the houses situated at Manaksar and Suratgarh belonging to the plaintiff and defendant No. 4 jointly.
7. The present special appeal has been preferred by defendants No. 1 to 3 against the judgment of the First Appellate Court dated 12.2.1987 allowing the appeal partly and declaring the share in respect of half portion of the agricultural land as also half share in the houses situated at Manaksar and Suratgarh belonging to the plaintiff and defendant No. 4 jointly.
8. It was contended on behalf of the appellants that form the testimony of P.W.I Raja Ram, it appeared that Gulab Ram, the father of Pola Ram died before the plaintiff was bom. The plaintiffs contention inter-alia was that the disputed agricultural land and houses which Pola Ram got from has father were his ancestral property and that Pola Ram did not purchase any property in his own life time.. From Ex.2, the revenue record, it appears that on the death of Gulab Ram, the name of Pola Ram was mutated. It was further stated that Gulab Ram had no daughter. P.W. 4Lekh Ram stated that at the time of adoption, Pola Ram was all alone. P.W.5 Sahi Ram stated that Pola Ram's wife died in 1946 i.e. Samvat 2003. From all these testimonies, the learned advocate appearing for the appellants contended interalia that Pola Ram was sole surviving co-parcener when Raja Ram was taken in adoption on 1.1.1962 and he had neither any brother, sister, wife, son or daughter and he was all alone and had no family of his own and he was the sole surviving co-parcener having personal property.
9. Mr. Bhandari, leaned advocate appealing for the appellants contended before us that the adoption made by Ex.1 dated 1.1.1962, which was so done by a registered document, did not show that the adoption was made according to law and the learned first appellate Judge erred in law and on facts in holding the adoption to be valid. The trial court while deciding the said issue in this regard held that the adoption was not according to law. Even though the First Appellate Court reversed this finding and held the adoption to be valid, the First-Appellate Court has erred in holding that the plaintiff respondent No. l Raja Ram was validly adopted son of deceased Pola Ram. Mr. Bhandari contended that the alleged deed of adoption was not executed by the natural father of Raja Ram i.e. Hazari Ram. The adoption deed (EX.1) does not bear the signature of the natural father Hazari Ram and in these circumstances, no presumption regarding valid adoption should be made under Section 16 of the Hindu Adoption and Maintenance Act, 1956. Under Section 9 of the said Act, it is essential that the natural father can give the boy in adoption only with the consent of the natural mother. It has not been found by the First Appellate Court that the natural father had taken the consent of his wife and there was no evidence on record which proved that the consent of the mother was taken while adoption was given by Hazari Ram in favour of Pola Ram. There was no averment in the adoption deed Ex.1 to such effect. Further, no giving and taking ceremony was performed as per Section 11(vi) of the Hindu Adoption and Maintenance Act. There was also no averments in Ex. 1, the adoption deed that giving and taking ceremony was performed. The trial Court held on a sifting of the entire evidence that the adoption of Raja Ram by deceased Pola Ram was not proved. This finding was reversed by the First Appellate Court without there having been any cogent evidence on record and hence, such reversion of finding on a question of fact was on insufficient grounds. Mr. Bhandari accordingly contended that this Court in second appeal ought to hold as a finding of fact that the adoption was not valid according to law.
10. Mr. Bhandari further contended that Ex. 1 was not signed by Hazari Ram, the natural father of Raja Ram. Under Section 16 of the Hindu Adoption and Maintenance Act, presumption is available only when it is signed by both the parties that is by natural father, who is giving adoption and of the adoptive father, who is taking adoption. In this case, there is no signature of the natural father Hazari Ram and, as such, there could not be any presumption of valid adoption. The learned advocate for the appellants Mr. Bhandari relied on the decisions in S. Rajagopal v. C.M. Armugam and Ors. Air 1974 Karnataka 78, Ramji v. Deputy Director of Consolidation, Allahabad and Ors. 1981 All. LJ. NOC 58 and Md Aftabuddin Khan and Ors. v. Smt Chandan Bilasini and Anr. .
11. Mr. Bhandari conceded that Ex.1, the adoption deed was a written and registered document, inasmuch as, it was a document in writing and registered as well, and as such no oral evidence could be given by way of rebuttal of any recital as given out in the said deed. The further lacking of essential ingredients of adoption under law would show that there was no valid adoption. The document however lacked in three essential respects so as to make it invalid in accordance with law: (i) it was not singed by the natural father: (ii) there was no mention that mother's consent was taken: (iii) there was no mention regarding giving and taking ceremony. Thus, Mr. Bhandari contended that the adoption deed could not confer any valid adoption and there was no iota of oral evidence also on the point that mother's consent was ever taken. The first appellate Judge was satisfied on appreciation of facts that there was a giving and taking ceremony and defendant No. 4 Pola Ram in the deed of adoption clearly expressed his unequivocal consent of Raja Ram being taken in adoption by him, his wife having presdeceased him at that point of time and it was a registered document conferring status of an adopted child on the plaintiff Raja Ram.
12. As regards the effect of the sale and the effect of the Will made by the sole surviving co-parcener, Mr. Bhandari contended that both the sale deed as well as the Will carrying the identical date of execution i.e. 11.7.1968 made by defendant No. 4 Pola Ram in favour of defendants No. 1 to 3 were valid. The sale deed was made in favaur of defendants No. 1 and 2 and the Will was made in favour of defendant No. 3. It is an admitted position that Pola Ram was the sole surviving coparcener. The trial Court held as such and this finding was not challenged by the plaintiff in the first appeal. At page 18 of the judgment of the learned Single Judge, the .contention as urged by the respondent has been recorded that simply because of the person who is the sole surviving coparcener taking another in adoption, the joint family does, no>t cease to be a coparcenary property. Mr. Bhandari however, contended that this was a wrong proposition of law because no Hindu Joint Family existed after the death of Pola Ram's father, when Pola Ram alone succeeded to the joint coparcenary properly which he had alongwith his father. Mr. Bhandari reminded us time and again that Gulab Ram, the father of Pola Ram had no daughter or son and even Pola Ram's wife died in 1946 and Pola Ram was completely all alone when the plaintiff was taken in adoption on 1.1.1962, and if he was the sole surviving coparcener, there was automatic cessation of the Hindu joint coparcenary.
13. Mr. Bhandari by referring to the provisions of Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956 contended that the adopted child could not divest any person of any estate which vested in him before the adoption. If his father i.e. adoptive father has already been taken as the sole surviving coparcener, with the execution of adoption, even if believed to be true, the character of the property would not change from the sole surviving coparcenary property to an Otherwise coparcenary property between the adoptive father and the adopted son.
14. Mr. Bhandari by referring to the decision in Dina Ji and Ors. v. Daddi and Ors. (Head Note 'C') contended that the property already vested prior to adoption could not be divested and he drew our specific attention to paras 7, 9, and 10 of the said judgment. Mr. Bhandari further cited decisions ixi Sawan Ram v. Mst Kalawant and Ors. , Krishanbai Shivram Pat. v. Ananda Shivram Patil , Joti Dadu Navale v. Mmukabai Kashinath Mohite . Banabai and Ors. v. Wasuthe and Smt. Chandranl Bai v. Pradeep Kumar .
15. Mr. Bhandari further contended before us that Section 13 of the Hindu Adoption and Maintenance Act made it amply clear that an adoption did not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos. That being so, there being no agreement to the contrary, Pola Ram could be vested with the powers to dispose of the property by transfer inter vivos, which he has done in favour of the defendants No. 1 and 2. He could also make out a Will and there was no impediment in this regard as well. The property being personal property of Pola Ram when the joint undivided coparcenery ceased to exist, he had every right to effect sale of the property and even had every right to make a Will in respect of the said property. Pola Ram was the sole surviving coparcener and was having personal property when the adoption was allegedly taken place on 1.1.1962. Section 13 of the Hindu Adoption and Maintenance Act specifically ensured that the right to effect sale or disposition of the property was in no manner lost because of the adoption. That being so, the Will and the sale deed dated 11.7.1968 were valid documents conferring rights on the purchaser in respect of the sale deed as well as the legatee under the Will.
16. Mr. Bishnoi, learned advocate appearing for the plaintiff-respondent No. 1 however cited before us a decision to Dharma Shamrao Agalawe v. Panduraiv Miragu Agalawe and Ors. . This judgment gives out that if a son is subsequently born to or adopted by the sole surviving co-parcener or a new co-parcener is inducted into the family on an adoption made by a widow of a deceased coparcener, an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family could not bar a sale, mortgage or gift made by the sole surviving coparcener prior to the birth of a new coparcener or induction of a coparcener by adoption.
17. Mr. Bhandari, however, contended that the decision in Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and Ors. only indicated that the adopted son or daughter could claim a share in the property, which had devolved on the sole surviving coparcener, on the death of the husband of the widow. The facts in (Ibid) were to the effect that one Shamrao died leaving behind two sons Dhanna and Miragu. Miragu died issueless in 1928 leaving behind his widow Champa Bai. The properties owned by the joint family of Shamrao passed in the hands of Dhanna and Miragu and on the death of Miragu, it passed on the hands of Dharma, who was the sole surviving coparcener. Champa Bai had only the right of maintenance. After the Hindu Adoption and Maintenance Act came into force on 12.12.1956, Champa Bai took Pandurang in adoption on 9.8.1968. Pandurrag and Champa Bai filed a suit for partition against Dharma for half share in the properties of the joint family. Before the said adoption took place, the two items of suit property were sold to defendants No. 3 and 17. Champa Bai had also earlier filed a suit against Dharma and obtained a decree of maintenance and there was nothing on record to show that any defined share was given to her in lieu of maintenance and thus the property remained joint family property. The trial court dismissed the suit for partition. The First Appellate Court granted a decree of partition, which was affirmed by the High Court. Before the Supreme Court, it was contended that there was no vesting of Joint family property in Dharma, as the widow of Miragu Champa Bai was there and she continued with Dharma in the joint family having a right of maintenance over the joint family properties. No defined share was given to her as widow of Miragu so that she could have become an absolute owner by virtue of Hindu Women's Right to Property Act, 1937 and thereafter by Hindu Succession Act, 1956. The family of Dhaima continued with Chanipa Bai having right of maintenance till Chanipa Bai, took Pandurang in adoption on 9.8.1968. Therefore, Dharnia could not be said to be the sole suiyiving coparcener or become the sole surviving coparcener on the death of Miragu. It was held that Pandurang had right to claim part ilion as there was joint family Dhanna and Chanipa Bai, the latter being widow of Miragu, having right of maintenance, which continued till adoption of Pandurang was made on 9.8.68 by Chanipa Bai. Mr. Bhandari sought to distinguish this case by contending inter alia that there was no one else in the family of Pola Ram except Pola Ram himself when adoption took place on 1.1.1962. He had no family and hence, the case was distinguishable from the Supreme Court decision where there was family of Dharma and Champa Bai. Pola Ram was the sole surviving coparcener and he continued as such after the death of his father or ever after the death of his wife in. 1946.
18. In para 9 of the decision in Dharma Slwunrao Agalawe v. Pandurang Miragu Agalawe and Ors. while relying on the decision in Vasant v. Dutta , the Supreme Court held that the joint family property does not cease to be joint family property when it passes on the hands Of the sole surviving coparcener. If a son is born to the sole surviving coparcener, the said property became the joint family property in his hands and in the hands of his son. This position is stated with regard to natural born son to a sole surviving coparcener. Mr. Bhandari sought to contend that it could not be the same with regard to an adopted son since in the case of adopted son Sections 12(C) and. 13 of the Hindu Adoption and Maintenance Act, 1956 would stand on the way. We do not agree with such a proposition' that if an adoption is taken by the sole surviving coparcener, there is no creation of a fresh joint family coparcenry in between the adoptive father and the adopted son. In AIR 1988 S.C.845 (Ibid) at para 9, it has been clearly stated that if a son is subsequently born to or an adoption is taken by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption being made by the widow of a deceased coparcener, the entire perspective changes. However, an alienation made by the sole surviving coparcener before the births of a new coparcener or the induction of a co-parcener by adoption into the family, whether by way of sale, mortgage or gift would stand unaffected, inasmuch as, the coparcener who is born or adopted after the alienation, cannot object to the alienation which was made before he was begotten or adopted. Mr. Bhandari contended that in this decision, the Supreme Court was only considering whether any alienation made by the sole suiviving coparcener, who made such aliention before the son was born subsequently or adopted by the sole surviving coparcener or widow of the deceased, could object to alienation made before such a child was begotten or adopted. We do not agree that the decision was confined only to a limited periphery as urged by Mr. Bhandari. The dispute indeed in this case is with regard to alienations made after adoption. We do not think that Sections 12(C) and 13 of the Hindu Adoption and Maintenance Act would really come into play so as to confer on the adoptive father the right of alienation to the full extent of the joint coparcenary property where the adopted child or the new born son is already deemed to be creating a fresh joint coparcenary property. The adoption took place on 1.1.1962 and alienation was made on 1.1.7.68 Even though the decision in AIR 1988 S.C. 845 was a decision on the question about the effect of earlier alienations before a natural son is born or an adoption takes place, we hold on a proper analysis of the law on the point in conformity with the principles enunciated in State of Orissa v. Sudhansu Sekhar Misra Head Note 'C' that the decision in (Ibid) clearly postulates that if an adoption is made after the joint family property has already passed Into the hands of the sole surviving coparcener, there could be again a creation of a fresh joint coparcenary alongwith the adopted son and that being so, the adopted son would definitely be entitled to a share in the joint family property. The property, therefore, again becomes an ordinary Hindu undivided coparcenary property and reverts back from the status of sole surviving coparcenary property to an ordinary joint family coparcenary property.
19. Mr. Bhandari contended by citing a decision in State of Orissa v. Sadhunsu Sekhar Misra that a decision is an authority for what it actually decides and what is the essence in a decision is its ratio and not observations made therein nor what logically follows from the various observations made in it. He cited in this context the decision given by Earl of Halsbury LC in Quinn v. Leathern 1901 AC 495. Mr. Bhandari contended that the decision in (Ibid) is not an authority on the point that with the adoption sole surviving coparcener reverts back to the position of an undivided Hindu joint family along with his adopted son. We do not think that the observations made in the decision In (Ibid) were per incurium and observations were not made about the true position of an adopted child vis-a-vis his father's coparcenary. Mr. Bhandari showed before us the decisions in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. 81 Anr. , A.K. Antulay v. R.S. Nayak and Anr. and Municipal Corporation of Delhi v. Gumam Kaur , but we did not think that any of such decisions was directly called into play while appreciating the correct ratio of the judgment in (Ibid) as we have indicated above.
20. Mr. Bhandari contended that as and when the ratio was propounded in (Ibid), the learned Judges were not conscious of Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956. We do not agree. We have given the matter our anxious consideration. We are of the considered view that the provisions of Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956 do not really create a clog on the rights of the adoptive father in making alienation of the property even after an adoption is taken, but that is in respect of his personal property and not in respect of his joint ancestral property which he has inherited from his father or fore-fathers. That being so, as and when an adoption is taken, an adopted child gets into the adoptive father's family and from the sole surviving coparcerner's status, the father reverts back to the position of a 'karta' in a joint family undivided coparcenary property, whore without legal necessity and family necessity, he cannot alienate the adopted son's share in the ancestral joint family co-parcenary property. He can, by virtue of Sections 12(c) and 13 of the Hindu Adoption and Maintenance Act, 1956 alienate his share to the undivided family, which he has done in the facts of the case.
21. We have sifted the evidence as regards the adoption which was made by the adoption deed Ex.1 and we ate of the considered opinion that on a question of fact what the First Appellate Court has arrived at by way of a finding of fact about the taking of a valid adoption is not assailable, there being no scope for further interference in the special appeal which is in the nature of second appeal before us.
22. As regards the other proposition, we are in full agreement with the learned Single Judge that the plaintiff Is entitled to only half share in the joint ancestral property, which Pola Ram had, to which the adopted child Raja Ram was a member by virtue of his adoption. That being so, the findings as regards the extent of the share as arrived by the First Appellate Court stand affirmed.
23. In the result, the special appeal as pitied-by the present appellants stands dismissed. There will be no order as to costs.