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2014 DIGILAW 1283 (RAJ)

Ram Chandra v. Banwari Lal

2014-06-30

ARUN BHANSALI

body2014
JUDGMENT : ” This appeal under Section 96 CPC is directed against the judgment and decree dated 11.02.1987 passed by District Judge, Churu, whereby, the suit filed by the plaintiff-respondent for cancellation of sale-deed dated 04.06.1979 has been decreed. 2. The facts in brief may be noticed thus: the plaintiff-respondent filed a suit with the averments that he was adopted son of defendant No.3 Magharam regarding which a registered adoption-deed had been executed; Magharam had adopted him in the childhood itself and adoption-deed in this regard was got registered; agriculture operations in Khasra No.377 admeasuring 50 Bigha 6 Biswa were being conducted by him along with his father; the adopted father is aged about 85 years, who is hard of hearing and is prone to being mislead; therefore, he had tried to sell the land and the plaintiff-respondent filed a suit in the year 1976 against him before Sub-Divisional Officer, Churu, which was compromised and, therefore, he started conducting agriculture operations together; Rugharam, father of defendant No.1 and Surjaram, father of defendant No.2 taking advantage of plaintiff ” s absence got executed a sale-deed of the agriculture field in question without consideration for a sum of Rs.20,000/-in favour of defendant Nos. 1 and 2 and got it registered on 04.06.1979, whereas the ancestral property could not have been sold by Magharam all by himself; under the garb of the sale deed, defendant No.1 tried to take possession of the field then the plaintiff-respondent filed a suit for injunction and obtained temporary injunction from the Sub-Divisional Officer, Churu, however, the defendants are bent upon committing illegal activities; Magharam had no reason to sell the field as he had no requirement of money and, therefore, without requirement for the joint family and without consideration the sale-deed has been executed, which is liable to be cancelled; in the alternative, it was claimed that as plaintiff has half share in the suit property and if the Court comes to the conclusion that Magharam could have sold half share of the property, being a co-tenant/co-owner of the suit field, the plaintiff has right of pre-emption and he is prepared to pay 50% of the sale consideration as prior to the sale no information whatsoever was given. Ultimately, it was prayed that the suit property being ancestral property and the same having been sold not for the benefit of the family and without authority, it be declared that plaintiff is not bound by the same and the same be cancelled and in the alternative as the plaintiff has right of pre-emption, the defendant Nos. 1 and 2 be directed to execute the sale-deed qua the half portion of the field sold by Magharam and they be restrained from interfering with the suit property. 3. A written statement was filed by the defendant Nos. 1 and 2 jointly with the averments that defendant No.3 Magharam was a person of reasonable prudence and is the sole owner of the suit filed and after receiving consideration has legally sold the same; the disputed field was not ancestral property and plaintiff was not a co-parcener and further he has no right to pre-emption, therefore, he is not entitled to get the sale-deed cancelled. Additional plea was raised that the suit seeking cancellation is already pending before Sub-Divisional Officer, Churu and, therefore, the present suit was not maintainable. 4. Defendant No.3 Magharam filed his written statement and accepted the case set up by the plaintiff and contended that no consideration was received by him and defendant Nos. 1 and 2 got the sale-deed executed by deception and as the field in question was ancestral and the plaintiff is an adopted son, without requirements of the family, the field could not have been sold and, therefore, the sale-deed was liable to be cancelled. 5. During pendency of the suit, defendant No.3 Magharam died and as besides plaintiff there was no other legal representative, his name was deleted from the array of parties. 6. The trial court framed ten issues. On behalf of plaintiff, three witnesses were examined and on behalf of defendants, also three witnesses were examined. 7. After hearing the parties, the trial court came to the conclusion that the plaintiff was the adopted son of Magharam and the field in question was ancestral and plaintiff being coparcener was co-owner of the field; sale-deed of the disputed field was executed in favour of the defendant Nos. 7. After hearing the parties, the trial court came to the conclusion that the plaintiff was the adopted son of Magharam and the field in question was ancestral and plaintiff being coparcener was co-owner of the field; sale-deed of the disputed field was executed in favour of the defendant Nos. 1 and 2 by Magharam on being misled and no consideration was paid and, therefore, the same was without consideration; the plaintiff was not bound by the sale; the right of pre-emption does not apply to agriculture field and, therefore, relief claimed in this behalf cannot be granted; as the issue relating to adoption and the property being ancestral was decided in favour of the plaintiff, he had right to maintain the suit; no suit pertaining to the sale-deed was pending before the Sub Divisional Officer, Churu and, therefore, the suit was maintainable; the defendants were not entitled for any special costs and, ultimately, decreed the suit cancelling the sale-deed dated 04.06.1979. 8. It was submitted by learned counsel for the appellants that the decision of the trial court on issue Nos. 1 and 2 regarding adoption of the plaintiff and the suit property being ancestral are absolutely baseless, against the record of the case and are contrary to the requirements of law and, therefore, the same needs to be quashed and set aside. It was further submitted that the requirements of the valid adoption have not been proved, original adoption-deed has not been produced and a certified copy thereof has only been filed and marked as exhibit, the procedure as prescribed under Evidence Act for proving a certified copy has not been adopted. It was submitted that it was the case of the plaintiff that the suit field was owned by Sukharam, father of Magharam and Magharam succeeded to Sukharam, who died intestate and, therefore, the succession having taken place under Section 8 of the Hindu Succession Act, 1956 (' the H.S. Act ” ), the plaintiff had no right in the suit property. 9. In support of the contentions, reliance was placed on Lakshman Singh Kothari v. Smt. Rup Kanwar : AIR 1961 Supreme Court 1378; Kalyan Singh v. Smt. Chhoti and Ors.: AIR 1990 Supreme Court 396; Commissioner of Wealth Tax v. Chander Sen : AIR 1986 Supreme Court 1753; Yudhister v. Ashok Kumar : AIR 1987 Supreme Court 558. 10. 9. In support of the contentions, reliance was placed on Lakshman Singh Kothari v. Smt. Rup Kanwar : AIR 1961 Supreme Court 1378; Kalyan Singh v. Smt. Chhoti and Ors.: AIR 1990 Supreme Court 396; Commissioner of Wealth Tax v. Chander Sen : AIR 1986 Supreme Court 1753; Yudhister v. Ashok Kumar : AIR 1987 Supreme Court 558. 10. Per contra, learned counsel for the respondent-plaintiff submitted that the objection about admissibility of the adoption-deed was not raised at the time when the same was being marked as exhibit and, therefore, it is not open for the appellants to raise the issue now; adoption of the plaintiff is well proved in view of the provisions of Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (' the Act of 1956 ” ) and from the evidence available on record, it was further submitted that the suit property was clearly ancestral even as per the admission of defendant No.3 Magharam and, therefore, the trial court was justified in setting aside/cancelling the sale-deed. 11. Reliance was placed on Kanti and Anr. v. Additional Civil Judge and Ors.: 2012(3) Civil Court Cases 431 : ( AIR 2012 Raj 71 ); Jabber Lal and Ors. v. LR/s of Ram Narayan and Ors.: 2012(4) Civil Court Cases 155 : (2012 AIR CC 2708 (Raj)); Jaswant Singh v. Gurdev Singh and Ors.: 2011(4) Civil Court Cases 738 : (AIR 2012 SC (Civ) 14); P. C. Purushothama Reddiar v. S. Perumal : AIR 1972 Supreme Court 608 and Digvijay Singh and Ors. v. Sant Ram and Ors. 2014(1) Civil Court Cases 255. 12. I have considered the rival submissions. 13. The crucial issues, which are required to be determined in the present case pertain to the adoption of the plaintiff and the nature of suit property. While the trial court held both the issues in favour of the plaintiff, the appellants have questioned the same in the present proceedings. 14. In the first instance, the issue relating to validity of the adoption of plaintiff has to be dealt since if only the adoption is held to be valid, there is scope for examining the nature of suit property and his right to question transfer of the suit field by defendant No.3 Magharam. 15. 14. In the first instance, the issue relating to validity of the adoption of plaintiff has to be dealt since if only the adoption is held to be valid, there is scope for examining the nature of suit property and his right to question transfer of the suit field by defendant No.3 Magharam. 15. In the celebrated decision of Hon ” ble Supreme Court in Lakshman Singh Kothari ( AIR 1961 SC 1378 ) (supra), the legal requirement for a valid adoption has been stated in para 10, which reads as under:- ' 10. The law may be briefly stated thus: Under the Hindu Law, whether among the regenerate caste or among Subras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.' 16. The above legal position has consistently been followed by Hon ” ble Supreme Court. Keeping in view the above statement of law, as regards the procedure to be followed for a valid adoption and the fact that an adoption-deed is not required to be compulsorily registered, the claim of the plaintiff as the adopted son of the defendant No.3 Magharam requires to be considered. 17. The plaintiff produced document (Ex.-1), which is a certified copy of the adoption-deed dated 25.04.1975. 17. The plaintiff produced document (Ex.-1), which is a certified copy of the adoption-deed dated 25.04.1975. To appreciate the claim of the plaintiff in its proper perspective, the contents of the adoption-deed can be usefully referred to, which reads as under:- (Vernacular matter omitted ...Ed.) 18. On behalf of the plaintiff, he himself was examined as PW-1, Khiraj as PW-2 and Magharam, defendant No.3 and adopted father of plaintiff as PW-3. 19. Learned counsel for the appellants have questioned the admissibility of the adoption-deed (Ex.-1) on the ground that the certified copy of the adoption-deed is a secondary evidence and without accounting for the original document, the secondary evidence could not have been admitted by the trial court and, therefore, no reliance can be placed on the said adoption-deed. 20. From the statement of the plaintiff Banwari Lal (PW-1) and the record of the trial court it does not appear that when the said adoption-deed was being marked as Ex.-1, any sort of objection was raised on behalf of the appellants. 21. The Full Bench of Andhra Pradesh High Court in The Land Revenue Acquisition Officer, Vijaywada Thermal Station v. Nutalapati Venkata Rao : AIR 1991 AP 31 , held that if secondary evidence is allowed to be marked for one party without objection at the trial court, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions for adducing secondary evidence have not been made out initially. Similarly, Hon ” ble Supreme Court in Ranvir Singh and Anr. v. Union of India : AIR 2005 Supreme Court 3467, observed that xerox copy of the deeds of sale were marked exhibits in land acquisition proceedings without any objection having been taken by the respondents. Such an objection cannot, therefore, be taken for the first time before Supreme Court. Though, the evidentiary value would have to be considered by the Court but the deeds cannot be rejected only on the ground that only xerox copies thereof had been brought on record. 22. Such an objection cannot, therefore, be taken for the first time before Supreme Court. Though, the evidentiary value would have to be considered by the Court but the deeds cannot be rejected only on the ground that only xerox copies thereof had been brought on record. 22. So far as judgment in the case of Kalyan Singh ( AIR 1990 SC 396 ) (supra) cited by learned counsel for the appellants is concerned, the Hon ” ble Supreme Court upheld the rejection by the High Court of a document, which was not a certified copy and was just an ordinary copy and held that the said document cannot be considered as secondary evidence. The said judgment has no application to the facts of the present case as admittedly the adoption-deed is a certified copy. 23. In view of the law laid down regarding stage of objection regarding secondary evidence laid down in the judgments (supra), the objection raised by learned counsel for the appellants has no substance. 24. Despite holding Ex.-1 the adoption-deed as admissible in evidence, the adoption as claimed by the plaintiff has to be established on the basis of the evidence available on record. The first evidence, which deserves to be considered is the adoption-deed (Ex.-1) on which reliance has been placed by the plaintiff and has been upheld by the trial court. 25. It would be appropriate to reproduce Section 16 of the Act of 1956, which reads as under:- ' Section 16. - Presumption as to registered documents relating to adoption- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.' 26. According to the said provisions the presumption in favour of a document purporting to record an adoption made can be raised provided it is signed by the parties to the adoption including the parent or guardian of the child, who is being given in adoption, appropriately, the document should be a bilateral document. 27. According to the said provisions the presumption in favour of a document purporting to record an adoption made can be raised provided it is signed by the parties to the adoption including the parent or guardian of the child, who is being given in adoption, appropriately, the document should be a bilateral document. 27. A bare look at the document (Ex.-1) the adoption-deed reveals that it does not bear the signatures/thumb impression of Khema Ram, father of Banwari Lal i.e. the natural father of the plaintiff or any guardian of the plaintiff, it does not indicate the presence of parents of plaintiff or his guardian at the time of the execution or registration of the adoption-deed and, therefore, the legal presumption, which has been claimed by plaintiff Banwari Lal under Section 16 of the Act of 1956 would, therefore, be not available as the fundamental ingredients as required by Section 16 of the Act of 1956 are missing. 28. So far as the oral evidence pertaining to adoption of plaintiff Banwari Lal to defendant No.3 Magharam is concerned, in his examination-in-chief as PW-1 stated that adoption deed was executed and was got registered and produced certified copy as Ex.-1; in cross-examination stated that he was adopted earlier and his father had given him to Magharam in childhood itself, his father has died but mother was still alive. PW-2 Khiraj simply stated that Banwari Lal was adopted son of Magharam and in cross-examination stated that the adoption deed was not executed in his presence when Banwari Lal went in adoption he was aged about 20-22 years and was married. The most crucial witness as PW-3 Magharam, the alleged adoptive father of the plaintiff, who stated in examination-in-chief that Banwari Lal was his adopted son; adoption deed was executed; he adopted him 15-20 years back and in cross-examination stated that document was executed regarding the adoption. 29. The most crucial witness as PW-3 Magharam, the alleged adoptive father of the plaintiff, who stated in examination-in-chief that Banwari Lal was his adopted son; adoption deed was executed; he adopted him 15-20 years back and in cross-examination stated that document was executed regarding the adoption. 29. From the statement of the three witnesses PW-1 Banwari Lal, who relied on the adoption deed; PW-2 Khiraj, who merely stated about the fact of adoption and PW-3 Magharam, the alleged adoptive father of the plaintiff, who also essentially relied on the document (Ex.-1), any evidence about the essential ingredients regarding adoption i.e. the transfer from one family to another and the act of giving and taking and a formal ceremony in this regard as envisaged by Hon ” ble Supreme Court in the case of Lakshman Singh Kothari ( AIR 1961 SC 1378 ) (supra) are totally missing. 30. Besides the fact that the adoption deed itself does not bear signatures and/or presence of the natural father, despite the fact that the natural mother of the plaintiff was alive, she was not produced in the witness-box to prove the fact of adoption. 31. In view thereof, the adoption of plaintiff Banwari Lal is neither proved from the documentary evidence Ex.-1 for absence of essential ingredients as envisaged by Section 16 of the Act of 1956 nor from the oral evidence as discussed hereinbefore. 32. The submissions made by learned counsel for the respondent that admission of the father in this regard was sufficient has no legal basis. Another argument raised by learned counsel for the respondent is that the validity of the adoption deed and/or the adoption is not in issue, the said argument also apparently is without substance inasmuch as the issue No.2 was framed as to whether defendant No.3 Magharam has adopted the plaintiff and plaintiff is co-sharer in the disputed field with defendant No.3, which necessarily envisage the proof on part of the plaintiff regarding his valid adoption by defendant No.3 so as to give him a locus standi to question the sale deed executed by defendant No.3 in favour of defendant Nos. 1 and 2. Therefore, it cannot be said that the legality and validity of the adoption deed/adoption was not in question before the trial court. 1 and 2. Therefore, it cannot be said that the legality and validity of the adoption deed/adoption was not in question before the trial court. Not only the issue was framed by the trial court, parties being aware of the dispute, led evidence regarding the fact of adoption by producing adoption deed (Ex.-1) and oral evidence in support of the said contention, as such it cannot be said that adoption of plaintiff was not in issue. 33. Having reached a conclusion that the adoption of plaintiff to defendant No.3 Magharam is not proved as valid, the consequential issues regarding the nature of property in the hands of Magharam, who admittedly had no issue, looses significance and the plaintiff also looses his locus standi to question the sale having been made by defendant No.3 Magharam as a consequence of the above finding on issue No.2. The finding on issue No. 7, which pertains to the locus standi of the plaintiff to institute the suit, which was decided in his favour by the trial court, thus also deserves to be reversed and it is held that the plaintiff had no locus standi to file the suit. 34. Consequently, in view of reversal of findings on issue Nos.2 and 7, it is held that as the plaintiff has failed to prove a valid adoption as envisaged by the provisions of the Act of 1956 and the law laid down by Hon ” ble Supreme Court, he had no locus standi to institute the present suit and, consequently, the same is liable to be rejected. 35. In the result, the appeal is allowed. The judgment and decree dated 11.02.1987 passed by the trial court is set aside and the suit filed by the plaintiff is dismissed. 36. No costs. Appeal allowed.