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2005 DIGILAW 54 (JK)

Gian Chand v. Mangi Ram

2005-03-16

S.N.JHA

body2005
1. These are cross appeals from the same judgment and decree of the courts below in a suit instituted by Mangi Ram, appellant in CSA No. 10/94 (hereinafter referred to as the plaintiff), for declaration that the defendant, Gian Chand, appellant in CSA No. 9/94, is not his adopted son and the adoption deed dated 22nd January, 1983 was null and void etc., and for perpetual injunction against him from interfering with plaintiffs possession over the suit house and the lands in question. The trial court by judgment and decree dated 30th December, 1992 decreed the suit. The court held that the adoption was null and void. The Ist appellate court upheld the finding but on the ground that the plaintiff had not sought consequential relief of possession as required under section 42 of the Jammu and Kashmir Specific Relief Act, held the suit to be not maintainable and, accordingly, set aside the judgment and decree of the trial court and dismissed the suit vide judgment and decree dated 31st March, 1994. Both the plaintiff and the defendant preferred appeals, being SA No. 10/94 and SA No. 9/94 respectively. Whereas defendants appeal is directed against the finding on the point of adoption recorded by the two courts below, the plaintiff is aggrieved by dismissal of the suit. 2. The appeals were disposed of earlier by a learned Judge of this Court on 24th August, 2000. Whereas SA No. 9/94 by the defendant was dismissed as being concluded by concurrent findings of fact, SA No. 10/94 by the plaintiff was allowed. The learned Judge held that the defendant was in possession of the suit property as adoption son, and not in any independent capacity; therefore, his adoption not being illegal, he cannot be deemed to be in possession. In the circumstances, the plaintiff was not required to seek the relief of possession and the suit as framed was maintainable. 3. Against the said judgment of this Court, the defendant moved the Supreme Court in SLP (Civil) No. 17662/2001, giving rise to Civil Appeal No. 4341/2002. In the circumstances, the plaintiff was not required to seek the relief of possession and the suit as framed was maintainable. 3. Against the said judgment of this Court, the defendant moved the Supreme Court in SLP (Civil) No. 17662/2001, giving rise to Civil Appeal No. 4341/2002. The Supreme Court vide order dated 26th July, 2002 took the view that a second appeal under section 100 of the Code of Civil Procedure can be heard only on substantial question of law but the appeals had been disposed of without framing any question of law, it set-aside the judgment and remitted the appeals back to this Court for fresh decision on merits. That is how the appeals came up for hearing. 4. At this stage the plaintiffs case may briefly be stated. According to him, he is owner of a house and landed property at village Kana, Tehsil Reasi in the District of Udhampur. One Both Raj, father-in-law of the defendant, fabricated a deed purporting to be a deed of adoption and fraudulently obtained his (plaintiffs) signature, on 22nd January, 1983. According to the plaintiff, he never took the defendant in adoption. The plaintiff stated that falsity of the alleged adoption was apparent from the fact that the defendant lived with his own father, Bijan, upto the year 1983 as evident from the ration card. In any view, being married and father of a 2+ year old daughter, the defendant was not eligible for adoption under section 10(iii) of the Jammu and Kashmir Hindu Adoption and Maintenance Act (II of 1960), the alleged adoption, therefore, was null and void. However, on the basis of the alleged adoption, the defendant was trying to dispossess him from the house and obstructing from collecting the usufructs of the lands. 5. The defendant in his written statement controverted the averments of the plaint and took the stand that suit was not maintainable without the relief of possession. 6. On pleadings of the parties, the trial court framed as many as six issues for decision as under: 1. Whether the defendant cannot become legally the adopted son of the plaintiff. If so, how? 2. Whether the Adoption Deed in question is null and void. If so, how? 3. Whether the giving and taking ceremony has not been performed? 4. On pleadings of the parties, the trial court framed as many as six issues for decision as under: 1. Whether the defendant cannot become legally the adopted son of the plaintiff. If so, how? 2. Whether the Adoption Deed in question is null and void. If so, how? 3. Whether the giving and taking ceremony has not been performed? 4. In case issue No. 3 is proved, whether as per custom prevalent in the community of the parties sisters son or a married person can be also taken in adoption? 5. Whether the suit of the plaintiff is not maintainable. If so, how? 6. Whether the valuation of the suit has not been correctly fixed. If so, what is the correct valuation of the suit and court fee? 7. It is not necessary to refer to the findings recorded by the courts below, issue-wise, for disposal of these appeals. As far as the defendants appeal i.e. SA No. 9/94 is concerned, as indicated above, though the first appellate court upheld the finding of the trial court on the point of adoption as being null and void, it nevertheless dismissed the suit. Thus there is no decree against the defendant against which he could file an appeal. As far as the adverse finding on the point of adoption is concerned, under Order XLI rule 22 of the Civil Procedure Code, he was/is entitled to assail the finding without preferring an appeal or even cross objection. The said rule entitles the respondent to file cross objection and, also, otherwise urge that the finding ought to have been in his favour -- to quote the rule -- "any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour;." 8. Be that as it may, even if the appeal were held to be maintainable or the defendant were permitted to challenge the finding, both in law as well as on facts the finding on the point of adoption would appear to be unassailable. Section 10(iii) of the Hindu Adoption and Maintenance Act provides for the eligibility of the person who may be adopted. Section 10(iii) of the Hindu Adoption and Maintenance Act provides for the eligibility of the person who may be adopted. It lays down:- "no person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (i) ... (ii) ... (iii) he or she has not married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption" 9. In fairness to the defendant, it may be stated that he tried to make out a case that when adoption took place he was not married. He also took a stand that in the community to which he belongs there was a custom of adoption of a married person. Reference to the so called custom appears to be a cry of desperation. In any view, no evidence was led in support of it and, therefore, has to be summarily rejected. The plea that at the time of adoption he was unmarried stands falsified by evidence of no less than his own father, Bijan. He stated in no uncertain terms that at the time of alleged adoption defendant was not only married but he also had a 2+ year old daughter. The alleged adoption is, therefore, covered by the provisions of section 10(iii) of the Hindu Adoption and Maintenance Act and the defendant cannot escape the conclusion that the same was null and void. In these premises, the defendants appeal i.e. SA No. 9/94 has to be dismissed as devoid of merit. 10. Coming to the plaintiffs appeal i.e. SA No. 10/94, as indicated above, though the first appellate court upheld the finding of the trial court on the point of alleged adoption as being null and void, it dismissed the suit on the technical ground that the suit was not in conformity with the provisions of section 42 of the Jammu and Kashmir Specific Relief Act inasmuch as the plaintiff did not seek the consequential relief Act inasmuch as the plaintiff did not seek the consequential relief of possession as required thereunder. It may be mentioned here that section 42 of the Jammu and Kashmir Specific Relief Act is pari materia section 34 of the old (Central) Specific Relief Act, 1877 (corresponding to section 34 of the new Specific Relief Act, 1963). Section 42 of the J&K Specific Relief Act provides for declaratory decrees. It may be mentioned here that section 42 of the Jammu and Kashmir Specific Relief Act is pari materia section 34 of the old (Central) Specific Relief Act, 1877 (corresponding to section 34 of the new Specific Relief Act, 1963). Section 42 of the J&K Specific Relief Act provides for declaratory decrees. It lays down -- "any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief". Thus it is open to a person to seek a declaration with respect to existence or otherwise of any legal character or in respect of his right in any property, and he is not required to seek any further relief. The provision, however, is hedged in by a proviso in the nature of caveat, as under: "Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so" 11. Before I advert to the question as to whether the plaintiff was required to seek the relief of possession also, it may be appropriate to observe that a suit seeking a declaration that defendant is not the adopted son of the plaintiff otherwise falls within the ambit of section 42 of the Specific Relief Act. The term `legal character as used in section 42 is wide enough to include the status of a person inter se between the plaintiff and the defendant. Where the plaintiff says that the defendant is not his adopted son and the defendant contends otherwise, clearly a dispute as to `legal character or legal status of the defendant vis-a-vis the plaintiff is involved. Where the plaintiff says that the defendant is not his adopted son and the defendant contends otherwise, clearly a dispute as to `legal character or legal status of the defendant vis-a-vis the plaintiff is involved. Whether a man is the legitimate son of another; whether he is the adoptive father of another; whether he has legally married a particular woman; whether by virtue of an alleged relationship with a family he is entitled to certain privileges and concessions; whether the defendant is the chela (disciple) of the plaintiff; whether the defendant is benamidar of the plaintiff, are some of the examples of dispute falling within the ambit of section 42 of the Specific Relief Act. Reference may be made to illustration (f) appended to section 42 of the Act which runs as under: "A Hindu window in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid". 12. The question of law arising for consideration is whether the plaintiff was entitled to declaratory relief without seeking the relief of possession? It is to be kept in mind that the proviso to section 42 of the Specific Relief Act does not refer to any specific relief without seeking which the suit would be bad; it simply refers to "further relief than a mere declaration". In the instant case, as seen above, besides seeking the declaration that the defendant is not his adopted son and the alleged deed of adoption is null and void, the plaintiff had further sought relief of perpetual injunction against him. Whether the relief of possession in the instant case can be said to be a "further relief" which was required to be sought in addition to declaration and perpetual injunction? In my opinion, the occasion or cause of action to seek the relief of possession arises where the plaintiff is not in possession of the property which is subject matter of the suit. Such is not the position in the instant case. Adverting to the facts of the case once again, at the cost of repetition, it may be stated that cause of action for instituting the suit was the alleged execution of so called deed of adoption in favour of the defendant. Such is not the position in the instant case. Adverting to the facts of the case once again, at the cost of repetition, it may be stated that cause of action for instituting the suit was the alleged execution of so called deed of adoption in favour of the defendant. The adoption, even if were valid one, merely had the effect of severance of the defendants relationship with the family of his birth -- replaced by the new relationship with the adoptive family -- conferring the same rights upon the adopted son as the natural son would have in the adoptive family. The adoption does not amount to ouster of the adoptive father or other members of the adoptive family. All that can be said in favour of the defendant in the instant case is that by virtue of the so called adoption he acquired the right to residence in the suit house or share in the produce of the lands. This right cannot be treated as an exclusive right in his favour amounting to dispossession or ouster of the plaintiff from the house or lands which was subject matter of the suit. The relief of possession in terms of the proviso to section 42 is required to be sought only where the defendant is in possession of the subject matter of the suit to the exclusion of the plaintiff. In Pratap Narain v. Sri Krishna Chandra, AIR 1948 Patna 28, it was held that where the plaintiff has not been dispossessed by any act of the defendant and only a cloud has been thrown on his title by the defendants conduct, the plaintiff can sue for mere declaration of his title and there is no need to ask for any further relief. Interference by the defendant with the possession of the plaintiff is not necessarily dispossession. 13. In fairness to the defendant, it may be stated that in the written-statement he did take the plea that the plaintiff is not in possession of the suit property but there is no evidence, muchless any finding on the point. In the above view of the matter, I do not think, he plaintiff was required to seek relief of possession for want of which the suit could be dismissed as not maintainable. 14. In the above view of the matter, I do not think, he plaintiff was required to seek relief of possession for want of which the suit could be dismissed as not maintainable. 14. The question of law formulated above i.e. "whether the suit for declaration can be dismissed on the ground of omission to seek the relief of possession where the plaintiff is in possession of the suit property along with the defendant" must be answered in the negative. The finding of the first appellate court being to the contrary, the same must be held to be illegal and liable to be set-aside. 15. Before I conclude, I must dispose of CMP No. 305 of 2003 which has been filed by the defendant for amendment of the written-statement and postponed for consideration at the stage of final hearing or the appeals vide order dated 22nd November, 2004. 16. According to the defendant, the deed of adoption referred to in the plaint-dated 22 January, 1983 -- was a `titeema deed i.e. a rectification deed, the original or the main adoption deed is dated 30th November, 1982, but suppressing the same the plaintiff sought declaration with respect to the latter deed to avoid to avoid limitation. According to the defendant he was not aware of the deed dated 30th November, 1982 till the disposal of the appeals vide judgment dated 24th August, 2000 (supra) when he showed the case file to the counsel and came to know about the earlier deed. In the circumstances he filed review petition on 28th September, 2000 followed by another review petition dated 20th October, 2000 seeking review of the judgment. (The review petitions, it appears, were dismissed in course of time). 17. The prayer for amendment of the written-statement cannot be allowed at this stage for more than one reason. If the prayer is allowed it would amount to enlarging the defence, indeed setting up a new defence, which could necessitate remand to the court below for fresh trial. This would certainly be prejudicial to the plaintiff. No party can be allowed to amend his pleading to fill up any lacuna in his case or set up new defences to the prejudice of the other party. As a matter of fact, it is difficult to accept the defendants case that he was not aware of the deed dated 30th November, 1982. No party can be allowed to amend his pleading to fill up any lacuna in his case or set up new defences to the prejudice of the other party. As a matter of fact, it is difficult to accept the defendants case that he was not aware of the deed dated 30th November, 1982. In his objections to the CMP, the plaintiff has stated that one Munshi Ram had instituted a suit, being civil suit No. 23/83, titled Munshi Ram v. Gian Chand and another in which the defendant figured as defendant No. 1. He had also filed written-statement in that suit. If that is so, he cannot feign ignorance about the deed dated 30th November, 1982. As a matter of fact, the alleged deed dated 22nd January, 1983 allegedly being only a rectification deed, the defendant was supposed to take an appropriate defence in the context of the earlier alleged deed of adoption. Having contested the plaintiffs suit on the strength of deed dated 22nd January, 1983, at this stage he cannot be permitted to take a new defence. The prayer for amendment, therefore, is rejected. 18. Adverting to the appeal, in view of my finding, the judgment and decree of the first appellate court dismissing the plaintiffs suit cannot be said to be in accordance with law and is, therefore, set-aside. Consequentially, the decree of the trial court would stand restored. 19. In the result SA No. 9/94 is dismissed while SA No. 10/94 is allowed. In the circumstances, the parties will bear the cost themselves.