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2013 DIGILAW 208 (UTT)

Ram Puri, Chela v. Usha Sharma

2013-04-18

PRAFULLA C.PANT

body2013
JUDGMENT This appeal preferred under section 96 of Code of Civil Procedure, is directed against the judgment and decree dated 18.04.1998 passed by Civil Judge (Sr. Div.), Haridwar in Original Suit No. 92 of 1978 whereby said court has dismissed the suit for cancellation of lease deed dated 17.10.1978 with costs. 2. Heard learned counsel for the parties, and perused the entire lower court record. 3. Brief facts, of the case, are that late Mahant Raghuwansh Puri inherited the property mentioned in Schedule A situated in Haridwar, detailed at the end of plaint through his ancestors namely Mahant Ghanshyam Puri and Mahant Ganesh Puri and others. The property mentioned in Schedule A of the plaint is known as GADDI of late Mahant Raghuwansh Puri who was a Grahasth Gosain. Plaintiff Ram Puri (since died) son/CHELA and defendant No. 2 Kaura Devi (since died) were also Grahasth Gosains. Shri Raghuwansh Puri died way back on 24.12.1932 survived by his widow defendant No. 2 Kaura Devi. She (defendant No.2) according to the custom in Gosain community became MAHANTANI/ owner of GADDI as legal heir of late Mahant Raghuwansh Puri. Since Raghuwansh Puri had one daughter Indra Devi through his first wife, after his death a litigation started between her (Indra Devi) and Kaura Devi which finally terminated in terms of compromise decree dated 26.05.1950 passed by Honble Supreme Court, and the rights of defendant No. 2 Kaura Devi over the GADDI left by Raghuwansh Puri were conceded. Plaintiff Ram Puri whose natural father was Chandan Singh has pleaded that he used to live with defendant No. 2 who adopted him as her son after accepting him in Gosain Community. The plaintiff further pleaded that on 27.06.1955 Kaura Devi (defendant No. 2) executed a registered adoption deed/CHELA deed whereby plaintiff Ram Puri became adopted son of Mahant Raghuwansh Puri. At the time of institution of plaint in the present round of litigation initiated by plaintiff Ram Puri, defendant No. 2 Kaura Devi was aged 80 years. It is pleaded in the plaint that due to her mental weakness some greedy persons created gulf between the plaintiff and defendant No. 2 who thereafter executed permanent lease of property detailed in Schedule B of the plaint on 17.10.1978. It is pleaded in the plaint that due to her mental weakness some greedy persons created gulf between the plaintiff and defendant No. 2 who thereafter executed permanent lease of property detailed in Schedule B of the plaint on 17.10.1978. Alleging that said lease deed was void on various grounds including that neither there was necessity for transfer of the property, nor the amount received was the proper consideration the deed dated 17.10.1978 is questioned by the plaintiff. It is also pleaded in the plaint that defendant No. 2 had no right to alienate the same. It was also pleaded by amending the plaint that even otherwise defendant No. 2 could not have alienated the property for a period before beyond her life time. It is further stated in the plaint that after defendant No. 2 refused to cancel the lease deed cause of action arose to the plaintiff who instituted further suit. In the year 1998 by way of amendment it is added in the plaint that after the death of defendant No. 2, during the pendency of suit defendant Nos. 3 to 9 started claiming themselves trustees of the property on the basis of Will dated 11.09.1980 which according to plaintiff is null and void. 4. The suit was contested by defendant Nos. 1 and 2 before the trial court by filing separate written statements. Defendant No.1 Usha Sharma (in whose favour disputed lease deed was executed by defendant No.2) admitted that Mahant Raghuwansh Puri was a Grahasth Gosain and owned the property mentioned in the plaint. It was also admitted by her that he (Mahant Raghuwansh Puri) died on 24.12.1932. It is pleaded in the written statement of defendant No.1that at the time of the death of Mahant Raghuwansh Puri not only Kaura Devi (defendant No.2) was survived by him as his widow but also by Indra Devi who was daughter of Raghu-wansh Puri. This is also admitted by this defendant (No.1) that long drawn litigation went between Indra ? Devi and defendant No. 2 Kaura Devi (step mother) which finally terminated in terms of compromise between the parties vide order dated 26.05.1950 passed by Honble Supreme Court. Rest of the allegations in the plaint are denied by this respondent. In the additional pleas it is stated that plaintiff is not the successor of the GADDI of Mahant Raghuwansh Puri. Devi and defendant No. 2 Kaura Devi (step mother) which finally terminated in terms of compromise between the parties vide order dated 26.05.1950 passed by Honble Supreme Court. Rest of the allegations in the plaint are denied by this respondent. In the additional pleas it is stated that plaintiff is not the successor of the GADDI of Mahant Raghuwansh Puri. It is also pleaded that since Raghuwansh Puri was a Grahasth Gosain as such neither he was an ascetic nor a Mahant. It is further stated in the written statement of defendant No. 1 that Kaura Devi inherited the property left by Mahant Raghuwansh Puri on the basis of order passed by the Supreme Court on 2.05.1950 in terms of compromise between the parties to litigation of said case. Plea of adoption taken by the plaintiff is also denied by this defendant. The deed dated 27.06.1955 in favour of the plaintiff allegedly executed by Kaura Devi (defendant No. 2) is also denied. It is specifically pleaded that a married woman cannot make anyone as her CHELA. It is also denied by defendant No. 1 that due to weak mental condition of defendant No. 2 anyone wants to grab the property in question. As to the lease deed dated 17.10.1978 it is pleaded by the defendant No.1 that the same is valid document executed by defendant No. 2. It is further pleaded by defendant No. 1 that defendant No. 2 had every right to execute said deed. In para 24 of the written statement defendant No. 1 states that defendant No. 2 did bring up plaintiff Ram Puri as son of her employee who has filed a suit and deprived defendant No.2 of her rights. 5. Defendant No. 2 Kaura Devi who filed separate written statement has also admitted that Mahant Raghuwansh Puri owned the property. It is also admitted by her that he (Raghuwansh Puri) was a Grahasth Gosain. This fact is also admitted by defendant No.2 that Raghuwansh Puri died on 24.12.1932. The factum relating to litigation between the defendant No. 2 and Indra Devi which finally terminated in terms of compromise before the Supreme Court is also admitted to her. Rest of the pleadings in the plaint are not admitted. Defendant No. 2 in her additional written statement stated that no cause of action has arisen to the plaintiff. The factum relating to litigation between the defendant No. 2 and Indra Devi which finally terminated in terms of compromise before the Supreme Court is also admitted to her. Rest of the pleadings in the plaint are not admitted. Defendant No. 2 in her additional written statement stated that no cause of action has arisen to the plaintiff. It is also stated that the property in question is not the property of any MUTH or GADDI. It is further pleaded by defendant No. 2 in her written statement that only due to the respect Raghuwansh Puri used to be called Mahant Raghuwansh Puri. It is pleaded by her that she is the sole owner in possession of the property in suit. She has specifically denied that she ever adopted plaintiff Ram Puri as her son or CHELA by following Gosain traditions. She denied that she ever adopted him (plaintiff) as her son/chela. She further pleaded that even otherwise during her lifetime plaintiff could not have inherited the property in suit. It is also stated that document dated 27.06.1955 was got signed from her by misrepresentation. She also stated that Will dated 08.06.1962 in favour of the plaintiff was obtained by fraud. She further pleaded that the document (Will) was not irrevocable, and vide document dated 20.11.1978 she cancelled the alleged adoption/chela deed and Will dated 08.06.1962. It is also pleaded that the lease deed, executed by her is a valid document. It is further pleaded that the suit is barred of sections 34 and 41 of Specific Relief Act. 6. On the basis of pleadings of the parties following issues were framed by the trial court:- (i) Whether the plaintiff is adopted son of late Mahant Raghuwansh Puri as alleged in para 4 of the plaint? (ii) Whether there is any custom in Gosain Community to adopt anyone from out of the community as alleged in para 3 of the plaint? (iii) Whether the defendant No. 2 is sole owner and successor of the disputed property in terms of settlement decree dated 26.05.1950 in light of section 14 of Hindu Succession Act, 1956? (iv) Whether lease deed dated 17.10.1978 executed by defendant No. 2 in favour of defendant No. 1 is void as alleged in para 2 of the plaint? (v) Whether plaintiff is entitled to the relief claimed by him? (iv) Whether lease deed dated 17.10.1978 executed by defendant No. 2 in favour of defendant No. 1 is void as alleged in para 2 of the plaint? (v) Whether plaintiff is entitled to the relief claimed by him? (vi) Whether property in question is Goswami GADDI as alleged in para 1 of the plaint? (vii) Whether Kaura Devi had a right to execute the Will dated 11.09.1980, and whether said document is null and void on account of being executed during the pendency of the lis? 7. After recording evidence and hearing the parties, the trial court decided all the issues against the plaintiff and dismissed the suit with costs. It was held by the trial court that plaintiff is not the adopted son of Mahant Raghuwansh Puri. It is also held that defendant No. 2 was full owner of the property in suit as she succeeded the same under section 14 of Hindu Succession Act, 1956. The trial court further held that the lease deed dated 17.10.1978 in favour of the defendant No. 1 was validly executed by defendant No. 2. It was further held that property in question is not the GADDI as alleged in the plaint. It was also held that Will dated 11.09.1980 executed by defendant No. 2 is not null and void. Though it is also observed by the trial court that there was no custom in Gosain Community to adopt outsider in their community, but on said issue learned counsel for the parties before this Court agreed and conceded that said finding is erroneous as the case of the plaintiff as well as of the defendant No. 2 was that they were adopted in Gosain Community and there were several such cases of the nature. As such said finding is liable to be reversed and is reversed. There are only two points of determination which are involved in this appeal-? (i) Whether the plaintiff Ram Puri was adopted son of defendant No. 2 and Mahant Raghuwansh Puri? (ii) Point of determination No 2:- Whether the property in suit mentioned in Schedule B was not succeeded as full owner by defendant No. 2 and as such had she no right to execute the lease deed? Answer to point of determination No. 1 8. It is admitted to the parties that Raghuwansh Puri was owner of the property in suit, who died on 24.12.1932. Answer to point of determination No. 1 8. It is admitted to the parties that Raghuwansh Puri was owner of the property in suit, who died on 24.12.1932. It is also not disputed between the parties that defendant No.2 Kaura Devi was widow of Raghuwansh Puri. It is also proved on record from the copy of the order dated 26.05.1950 passed by Honble Supreme Court in Civil Appeal No. 36 of 1948 that after the death of Mahant Raghuwansh Puri there had been long drawn litigation between defendant No. 2 ? Kaura Devi and her step daughter Indra and in said settlement the present property in question stood succeeded by Kaura Devi (defendant No.2). Said order passed by the Apex Court is based on the compromise between the parties. 9. The main dispute in this appeal is that whether Kaura Devi widow of Raghuwansh Puri adopted plaintiff Ram Puri as her son or CHELA through registered deed dated 27.06.1955 (paper No. 94C/1 in the lower court record), and whether by said deed plaintiff Ram Puri became adopted son or CHELA of Raghuwansh Puri long after his death. 10. Relevant provision of law relating to adoption by a widow (before Hindu Adoptions and Maintenance Act came into force) as contained in Article 452 of Mullas Hindu Law which reads as under:-? 452. Adoption by widow The law as to adoption by a widow is different in different States: (1) In Mithila a widow cannot adopt at all, not even if she has the express authority of her husband. (2) In Bengal, Benares and Madras a widow may adopt under an authority from her husband in that behalf. Such authority may be express or implied. It cannot be implied from the mere absence of a prohibition to adopt. Nor would such authority be implied from the facts that the widow went through the ceremonies of adoption and executed a deed of adoption containing a recital that her husband had expressed his desire that she would adopt the respondent and that she had made an application for appointment of herself as guardian of the respondent. (3) In the Madras State a widow may also adopt without her husbands authority where the husband was separate at the time of his death, she obtains the consent of his sapindas, and where he was joint, she obtains the consent of his undivided coparceners. (3) In the Madras State a widow may also adopt without her husbands authority where the husband was separate at the time of his death, she obtains the consent of his sapindas, and where he was joint, she obtains the consent of his undivided coparceners. Where the husband had given authority to adopt no question of consent of sapindas can arise. (4) In the Bombay State a widow may adopt even without any authority. 11. Needless to say that Uttarakhand comes under Banaras School of Law. In Smt. Shanti Bai v. Miggo Devi & others (1980) 4 SCC page 462 : ( AIR 1980 SC 2008 ), it has been held by the Apex Court that in the case of adoption by widow (before commencement of Hindu Adoptions and Maintenance Act, 1956) authority of deceased husband was essential. There is little evidence on record suggesting that Kaura Devi had got authority of her deceased husband to adopt the child. It is relevant to mention here that death of her husband had taken place in the year 1932 and P.W.1Ram Puri (plaintiff) has stated that he was adopted as son by Kaura Devi in the year 1955. Considering the fact that Indra Devi (with whom Kaura Devi had earlier litigation) was daughter of Raghuwansh Puri, it is further doubtful that Raghuwansh Puri had authorized Kaura Devi to adopt a son. It is further relevant to mention here that it has come on the record in the statement of D.W.1 Kaura Devi that Raghuwansh Puri with whom she got married in 1920 was lunatic and it has also come on the record that receivers were appointed in respect of his property before his death. 12. However, from the copies of the High School Certificate and Intermediate Certificate (paper Nos. 92A and 93A in the lower court record) filed by the plaintiff it is established that his fathers name is shown as Raghuwansh Puri but as to the validity of the adoption it cannot be said that adoption by a Hindu widow prior to Hindu Adoptions and Maintenance Act, 1956, without authority of the husband was valid. It is relevant to mention here that P.W.1 Ram Puri has admitted that at the time of alleged adoption in 1955 he was five years old and at that it is hard to believe he made any misrepresentation as alleged by D.W.1 Kaura Devi. 13. It is relevant to mention here that P.W.1 Ram Puri has admitted that at the time of alleged adoption in 1955 he was five years old and at that it is hard to believe he made any misrepresentation as alleged by D.W.1 Kaura Devi. 13. P.W.4 Sandal Giri and P.W.5 Ratan Giri have stated that Ram Puri (plaintiff) was adopted as CHELA by MAHANTANI Kaura Devi (defendant No. 2) in their presence. The registered deed dated 27.06.1955 paper No. 94C/1 also shows that alleged adoption deed is mentioned as CHELANAMA and WASIYATNAMA. Word CHELA refers to disciple and not the son. It is pertinent to mention here that only an ascetic (SANYASI) can adopt someone as his CHELA (disciple). On going through the registered deed dated 27.06.1955 read with the statement of P.W.4 Sandal Giri and P.W.5 Ratan Giri it is established on the record that plaintiff was adopted as CHELA by defendant No. 2 Kaura Devi who was functioning as MAHANTANI after death of Mahant Raghuwansh Puri but she was not a SANYASIN. It is admitted by P.W.4 Sandal Giri and P.W.5 Ratan Giri, witnesses got examined on behalf of the plaintiff himself, that only SANYASI can make someone as CHELA not the Grahasth Gosain. It is admitted by all the witnesses that Kaura Devi was a Grahasth Gosain widow of Raghuwansh Puri who was himself a Grahasth Gosain. The GRAHASTH means a person who has his family and who has not renounced the world. That being so accepting plaintiff Ram Puri as CHELA by Kaura Devi, though proved is also not valid, as she was not a SANYASIN. 14. In the above circumstances, this Court is of the view that registered deed dated 27.06.1955 was certainly executed by defendant No. 2 Kaura Devi and from that date she treated plaintiff Ram Puri as her child but only for that reason it cannot be said that plaintiff was lawfully adopted by Kaura Devi. Point of determination No. 1 stands answered accordingly. Answer to point of determination No. 2 15. In Ugre Gowda v. Nagegowda (2004) 12 SCC 48 : ( AIR 2004 SC 3974 ), it has been laid down by the Apex Court that adoption of a son does not deprive the adoptive mother to dispose of her property. Point of determination No. 1 stands answered accordingly. Answer to point of determination No. 2 15. In Ugre Gowda v. Nagegowda (2004) 12 SCC 48 : ( AIR 2004 SC 3974 ), it has been laid down by the Apex Court that adoption of a son does not deprive the adoptive mother to dispose of her property. Assuming that Kaura Devi adopted plaintiff as her son or CHELA in Gosain Community that by itself does not deprive defendant No.2 from executing the lease deed dated 17.10.1978 in favour of defendant No.1.Therefore the transfer of the property mentioned in Schedule B made by Kaura Devi (defendant No.2) cannot be said to be illegal. 16. On behalf of the plaintiff/appellant attention of this Court is drawn to the principle of law laid down in Suraj Mal and others v. Babu Lal and another, AIR 1985 Delhi 95, Gaddam Rama Krishnareddy and others v. Gaddam Rami Reddy and another, 2011(112) RD 264 : ( AIR 2011 SC 179 ) and Smt. Ram Devi v. Prakash Narain and others, AIR 1979 NOC 34 (All.) and it is argued that since Raghuwansh Puri died in the year 1932 much before the commencement of Hindu Womens Right to Property Act, 1937, as such she did not get absolute right under section 14(2) of Hindu Succession Act, 1956. It is further argued that Kaura Devi had no right to execute lease deed of the property mentioned in Schedule B of the plaint. However, in the opinion of this Court in view of decree passed by Honble Supreme Court on 26.05.1950 in Civil Appeal No. 36 of 1948 whereby it was recognized that property in suit owned by Kaura Devi, this Court is unable to hold that defendant No. 2 Kaura Devi had no right to transfer the property mentioned in Schedule B. Therefore, point of determination stands answered in favour of defendant No. 2. 17. For the reasons as discussed above this Court is of the opinion that this appeal has no force which is liable to be dismissed. Accordingly, the appeal is dismissed. However, it is clarified that since plaintiff has sought relief in the suit only in respect of property mentioned in Schedule B of the plaint as such this judgment will have its effect only to that extent. Costs easy. Appeal dismissed.