Citation: Bholooram (Bhola) Vs Ramlal and Ors., AIR 1989 MP 198
Date of Judgement: 01/02/1989
Equivalent citation: AIR 1989 MP 198
Case No.: Civil Appeal No. 573 of 1973
Case Type: Civil Appeal
Petitioner: Bholooram (Bhola)
Defendant: Ramlal and Ors.
Bench:Honourable Justice P.C. Pathak
Court: High Court of Madhya Pradesh
Statutes Referred:
- Hindu Adoptions and Maintenance Act, 1956; Section 4,5,6,7
- Indian Evidence Act, 1872; Section 107
Cases Referred:
- Daniraiji Vrajlalji Junagadh Vs Maharaj Shri Chandraprabha, AIR 1975 SC 784
- In Madhusudan Das Vs Smt. Narayani Bai, AIR 1983 SC 114,
- Krushna Chandra Sahu Vs Pradipta Das, AIR 1982 Orissa 114
- Lal Harihar Pratap Bakhsh Singh Vs Thakur Bajrang Bahadur Singh, AIR 1937 PC 242
- Maroti Bansi Teli Vs Radhabai, AIR 1945 Nag 60
- Kirpal Kuar Vs Bachan Singh, AIR 1958 SC 199
- Md. Aftabuddin Khan Vs Smt. Chandan Bilasini, AIR 1977 Orissa 69
- Smt. Gopi Vs Madanlal, AIR 1970 Raj 190
- Raghava Vs Srinivasa, (1917) ILR 40 Mad 308: AIR 1917 Mad 630
- Pramila Ball Das Vs Jogesher, 46 Ind Cas 670: AIR 1918 Pat 626
- Chhatra Kumari Devi Vs Mohan Bikram Shah, AIR 1931 PC 196
Facts:
- The Plaintiff filed a suit seeking a declaration that the sale and mortgage-deeds executed by his adoptive father Ganpatsingh, Defendant No.1, in favour of otherDefendants aren’t binding on him to the extent of his 1/3rd interest, partition of his share and possession, and mesne profits on the basis that:
- He was given by his natural father Kalaya on 18.4.1960 in accordance with caste custom, and
- He was given by his adoptive father
- Plaintiff and Ganpatsingh also agreed that if the Plaintiff paid the outstanding dues of Rs. 3000, he would not transfer any land belonging to him without plaintiff’s authorization, which was reduced to writing. He has been living with his adopted father and mother since then.
- Ganpat later with the 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 with none legal necessity in breach of Section 165 of M.P. Land Revenue Code.
- He also executed a purchase deed on 29.10.1967 which is against the law and inoperative to the extent of his 1/3rd in it. The sale deed so also the deed was inconsiderately and his 1/3rd interest within the suit property isn’t suffering from those transfers.
- He prayed for a partition, possession, final injunction restraining the Defendants to not interfere together with his possession and mesne profits from the date of suit till the delivery of possession @ Rs. 5000 per annum.
- Defendant Ganpatsingh and his wife Ramkooverbai Defendant No. 3 denied the factum as also validity of adoption, on the bottom that no consent from the 2 wives, Jatibai Defendant No. 2 and Ramkooverbai Defendant No. 3 were taken.
- The Plaintiff didn’t repay loan of Rs. 3000 or any other amount nor Ganpat entered into any kind of agreement with him undertaking to not transfer any property.
- The transfers made in favour of Defendants 4, 5 and 6 are for consideration. The Defendants also raised other objections which aren’t material for this appeal. Defendant 2, Jatibai didn’t file her written statement and was proceeded ex parte on 10-5-1968.
- The court dismissed the suit on findings that the Plaintiff has not taken in adoption Defendant No. 1 had not executed any agreement undertaking to not 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 considerately and aren’t affected for want of plaintiff’s consent. Defendants 4, 5 and 6 are real purchasers in straightness for value.
- On appeal by the plaintiff, the primary appeal Court held that the absence of consent from wife who has deserted her husband for about 20 to 25 years or had been indifferent towards her husband won’t invalidate an adoption which as a fact had taken place.
- When the Plaintiff visited Jatibai and told her that he was being adopted, she told him that she had no objection which albeit Jatibai was impleaded as Defendant No. 2, she never opposed the suit within the court or within the appeal Court, therefore, it could safely be inferred that Jatibai had no objection to the plaintiff’s adoption.
- The appeals court also held that the absence of signature within the adoption deed of the natural father won’t preclude raising of presumption under Section 16 that the adoption has been made in compliance with the supply of the Act unless rebutted by disproof of the facts.
- Plaintiff was also held entitled to possession of survey No. 94 transferred during the pendency of the suit to Dwarka Prasad. Confirming that the mesne profits might be taken as Rs. 5000 per annum, the plaintiff, the Defendants 2 and three have 1/3rd share each namely Rs. 1666.66 per annum and therefore the Plaintiff is going to be entitled to recover mesne profits at this rate from Defendants 4 to six on payment of Court-fees.
Issues Involved:
Whether the Plaintiff was validly adopted is vitiated by any illegality?
Contention of Petitioner:
The learned counsel of the Petitioner contended that:
- The Plaintiff claimed that on April 18, 1960, he was adopted by Ganpat (who) also executed an adoption deed and had it registered in his favour, in accordance with caste custom and requisite rituals. Since then, the Plaintiff has lived with Ganpat as his adopted son.
- The Plaintiff alleged that Jatibai lived in Ikhangaon. He went to Jatibai before the adoption and informed her that he was getting adopted by Ganpat. After then, Jatibai stated that she had no objections.
- The plaintiff’s learned counsel also contended that the lower appellate court based its decision on comments from Ganpat (DW 1), Ramkunwarbai (DW 2), and Ramlal (PW 1), concluding that Jatibai had no objection to Ramlal’s adoption. As a result, her participation in the adoption ceremony did not need her to express her consent. In a second appeal, the decision cannot be challenged.
Contention of Defendant:
The learned counsel of the Defendant contended that:
- Defendant Ganpat and his wife Ramkooverbai filed written statements admitting execution and registration of the adoption deed but denying that the essential ceremonies of giving and taking of the Plaintiff were performed, or that consent of both of his wives Jati and Ramkooverbai was obtained prior to the adoption, which was a legal requirement. The absence of a particular request for wives’ consent was raised as a point of contention.
- The Defendants claimed that none of Ganpat’s spouses agreed to the alleged adoption.
Obiter dicta:
The primary burden to prove the adoption and its validity lies on the one that seeks to displace the natural succession by alleging his adoption.
Ratio Decidendi:
Soon after enactment of the Hindu Adoptions and Maintenance Act, 1956, which came into operation w.e.f. 21.12.1956, radical changes were made within the known laws of adoption prevalent amongst the Hindus. Section 4 of the Act provides that in respect of all matters provided for during this Act, this Act prevails despite any provision relating thereto in the other Act previously existing or incident of any custom of Hindu law which previously governed such matters.
Judgement:
It is held that the Plaintiff did not establish that he was validly adopted by Ganpat. He also did not establish that he has any right under on these findings alone the appeal deserves to be allowed. the opposite grounds urged by the appellant needn’t therefore be examined.
The appeal was allowed.
The judgment and decree gone by the court below are put aside and instead the judgment and decree dismissing the plaintiff’s suit is restored with costs throughout Counsel’s fee Rs. 300/. if certified. Appeal allowed.
Conclusion:
The Plaintiff in this case got to first establish that his adoption was valid which his adoptive father executed an agreement binding himself to not alienate the property. The adoption is invalid for want of consent of Jatibai and thus the Plaintiff cannot build any argument on the idea of agreement.
Apart from this, the Plaintiff also did not prove execution of the agreement, consistent with Fattu, Ramlal was aged about 6-7 years; whereas consistent with his natural father Kalaya he has 9-10 years old. The Plaintiff was therefore also needed to pay the debt of Rs. 3000 to Ganpat’s creditor; whereas Ganpat bound himself to not eliminate property without the plaintiff’s consent. The law doesn’t imagine any contract with a minor.
Drafted By: Bharti verma, Chanderprabhu Jain College of Higher studies and School of Law
Published On: September 17, 2021, at 14:57 IST