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2016 DIGILAW 767 (JHR)

Basudeo Singh s/o Kanhai Singh v. Hira Devi

2016-05-03

SHREE CHANDRASHEKHAR

body2016
JUDGMENT : Shree Chandrashekhar, J. The counsel appearing for the respondents is absent. 2. By the order of the Hon’ble Chief Justice all the matters in which proceedings in the lower courts were stayed by the orders of this Court, have been notified in the cause list for 22.04.2016 and 23.04.2016. The instant Second Appeal was admitted on 24.03.1994 and thereafter, the matter has been listed on five earlier occasions. Moreover, the instant Second Appeal was filed way back in the year, 1993 and therefore, I did not adjourn the matter and I proceeded to hear the matter on merits. 3. The instant Second Appeal has been brought against the judgment of reversal dated 25.05.1993 passed in Title Appeal No.83 of 1985. 4. The appellants are the legal heirs and successors of Basudeo Singh S/o Kanhai Singh and other defendants. The suit was instituted by Mohan Singh for declaration of his right, title and interest in schedule A, B and E properties, being the adopted son of Ayodhaya Singh and Guna Kumari and for declaration of his right, title and interest in schedule C and D properties which were in joint possession of Ayodhaya Singh and other cosharers. The defendants challenged the validity of plaintiff's adoption by Guna Kumari on various grounds. On the basis of the pleadings of the parties, the trial court framed the following issues: 1. Is the suit as framed maintainable? 2. Has the plaintiff got any cause of action for the suit? 3. Is the suit barred by law of limitation? 4. Is Mohan Singh the adopted son of Guna Kumari and Ajodhaya Singh? 5. Is the plaintiff entitled to a decree as claimed? 6. To what relief or reliefs is the plaintiff entitled?” 5. The trial court held that adoption of Mohan Singh by Guna Kumari and Ayodhaya Singh was not valid and Mohan Singh is not the adopted son of Guna Kumari. The suit was dismissed on contest, against which the plaintiff preferred Title Appeal No.83 of 1985. The lower appellate court framed the following points for consideration:- 1. Whether the plaintiff-appellant Mohan Singh is the adopted son of recorded tenant Ayodhaya Singh through his widow Mostt. The suit was dismissed on contest, against which the plaintiff preferred Title Appeal No.83 of 1985. The lower appellate court framed the following points for consideration:- 1. Whether the plaintiff-appellant Mohan Singh is the adopted son of recorded tenant Ayodhaya Singh through his widow Mostt. Guna Kumari and is he entitled for declaration of his right, title and interest over the properties as mentioned in Schedules A, B, C, D and E of the plaint and for recovery of possession over the properties as mentioned in Schedules A, B and E or not? 2. Whether the judgment and decree dated 19.9.85 as passed by Shri Shiveshwar Narayan, the then Subordinate Judge, Jamtara in Title Suit No.34/72 are erroneous and the same are liable to be set aside through the present appeal or not? 6. The lower appellate court reversed the findings of the trial court on the question of adoption of Mohan Singh by Guna Kumari and held that the plaintiff was entitled for a declaration of his right, title and interest over schedule A, B, C, D and E properties. 7. While admitting the instant Second Appeal, this Court framed the substantial question of law viz; (i) Whether the finding of the appellate court is vitiated for not assigning the reasons for reversing the finding of the trial court recorded in paragraph nos.12 to 16? 8. Heard. 9. At the outset, Mr. Manjul Prasad, the learned Senior counsel for the appellants submitted that no other substantial question of law except, the one framed vide order dated 24.03.1994 arises in the present Second Appeal. The learned Senior counsel submitted that the burden to prove adoption of Mohan Singh by Guna Kumari was upon the plaintiff, which the plaintiff failed to discharge. The plaintiff was required to prove his adoption by Guna Kumari beyond all shadows of reasonable doubt however, plaintiff's adoption remained clouded with doubts. The learned Senior counsel submitted that the burden to prove adoption of Mohan Singh by Guna Kumari was upon the plaintiff, which the plaintiff failed to discharge. The plaintiff was required to prove his adoption by Guna Kumari beyond all shadows of reasonable doubt however, plaintiff's adoption remained clouded with doubts. It was contended that the trial court considering various circumstances which clouded the alleged adoption of Mohan Singh by Guna Kumari returned a finding that the adoption of Mohan Singh by Guna Kumari was not valid however, the lower appellate court without adverting to the circumstances relied upon by the trial court reversed the findings on the issue of adoption of Mohan Singh, which is a pure question of fact, and thus, the lower appellate court committed serious error in law and passed the impugned order dated 25.05.1993 in Title Appeal No. 83 of 1985. 10. Before adverting to the substantial question of law framed in the instant Second Appeal, the duty of the appellate court under Section 96 CPC read with Order XLI Rule 31 CPC needs to be reiterated. 11. Order XLI Rule 31 CPC reads as under:- Contents, date and signature of judgment - The judgment of the Appellate Court shall be in writing and shall state – (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. 12. 12. The power of the appellate court is provided under Order XLI Rule 33 CPC which reads as under:- Power of Court of Appeal - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: [Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]” 13. A plain reading of Order XLI Rule 31 discloses that the judgment of the Appellate Court should contain; (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 14. The powers of the first appellate court, while deciding the first appeal under Section 96 CPC, are indeed well defined. An appellate court is the final court of fact and therefore, a full and independent consideration of the evidence by the appellate court is always desirable. In “Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs.” (2001) 3 SCC 179 , the Hon’ble Supreme Court has observed that; “the judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising alongwith the contentions put forth, and pressed by the parties for decision of the appellate court.” 15. In “B.V. Nagesh & Anr. Vs. H.V. Sreenivasa Murthy” (2010) 13 SCC 530 , the Hon’ble Supreme Court reiterating the principles laid down in earlier judgments of the Court observed as under:- “4. In “B.V. Nagesh & Anr. Vs. H.V. Sreenivasa Murthy” (2010) 13 SCC 530 , the Hon’ble Supreme Court reiterating the principles laid down in earlier judgments of the Court observed as under:- “4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.” 16. The case pleaded by the plaintiff in Title Suit No.34 of 1972 is summerised thus:- The suit schedule properties belonged to one Ayodhaya Singh either exclusively or in joint possession with his brother and other co-sharers. Ayodhaya Singh had only a daughter named Lalu Kumari. After the death of Ayodhaya Singh his widow namely, Guna Kumari and his daughter Lalu Kumari succeeded the schedule A, B and E properties and also entered into joint possession of schedule C and D properties alongwith other co-sharers. Guna Kumari adopted the plaintiff, Mohan Singh on 30th Ashar, 1369 B.C., that is, on 16.07.1962 from his natural father, Bhatu Rai with the consent of plaintiff’s natural mother Smt. Bhukhali Kumari. An adoption-deed was also executed on 16.07.1962 evidencing adoption of Mohan Singh by Guna Kumari and the said deed was registered. Guna Kumari died on 09.12.1971 leaving behind the plaintiff and her daughter namely, Lalu Kumari as her legal heir and successor. An adoption-deed was also executed on 16.07.1962 evidencing adoption of Mohan Singh by Guna Kumari and the said deed was registered. Guna Kumari died on 09.12.1971 leaving behind the plaintiff and her daughter namely, Lalu Kumari as her legal heir and successor. Lalu Kumari died on 04.04.1972 whereupon, her interest in the suit properties devolved upon the plaintiff and thus, the plaintiff became the exclusive owner of schedule A, B and E properties and succeeded to the entire undivided interest of Ayodhaya Singh in schedule C and D properties. 17. The plaintiff pleaded that during their lifetime Guna Kumari and Lalu Kumari remained in joint possession of schedule A, B and E properties and they were also in joint possession of schedule C and D properties with other co-sharers however, after their death, the defendants forcibly occupied the suit scheduled properties and did not permit the plaintiff to possess the properties which originally belonged to Ayodhaya Singh. In these facts, the plaintiff sought a declaration of his right, title and interest in schedule A, B and E properties on the basis of his adoption by Guna Kumari, widow of Ayodhaya Singh, and to the extent of interest of Ayodhaya Singh a declaration of his right, title and interest in schedule C and D properties which were jointly held by Ayodhaya Singh with his brother Thakur Singh and other co-sharers. 18. The defendants denied adoption of the plaintiff by Guna Kumari. It was pleaded that no adoption ceremony, pujapath or actual giving and taking ceremony were performed as also there was no feasting at the place of adoption or any other place on the occasion of the adoption which is a common and usual feature of adoption among the Hindus. The defendants asserted that Guna Kumari had never intended to adopt the plaintiff and in fact, the father of the plaintiff namely, Bhatu Rai on the pretext of executing Bhugatbandhadeed for extending a loan of Rs.500/to Guna Kumari, by practicing fraud and misrepresentation got an adoption-deed executed by Guna Kumari who was an illiterate lady. After about 6 years when she approached the father of the plaintiff namely, Bhatu Rai for return of Bhugatbandhadeed, she came to know that a false deed of adoption was prepared in lieu of Bhugatbandhadeed and accordingly, she cancelled the deed of adoption on 11.04.1969. After about 6 years when she approached the father of the plaintiff namely, Bhatu Rai for return of Bhugatbandhadeed, she came to know that a false deed of adoption was prepared in lieu of Bhugatbandhadeed and accordingly, she cancelled the deed of adoption on 11.04.1969. The defendants further pleaded that the properties belonging to Guna Kumari were in possession of Chetlal Singh, Mohan Singh and Ram Singh and according to a family settlement her properties devolved on the defendants except, defendant no.7 and they are in actual possession over the same. The defendants claimed that the last rites of Guna Kumari and Lalu Kumari were performed by the defendants, in which they incurred heavy expenses. 19. During the trial, the plaintiff examined 15 witnesses and exhibited several documents. PWs 1, 3, 4, 11, 12, 13, 14 and 15 were formal witnesses who proved the documents on behalf of the plaintiff. The witness Madan Mohan Jha (PW2) is the Purohit who performed the adoption ceremony of Mohan Singh. Three witnesses viz; PWs 5, 6 and 7 deposed that Mostt. Guna Kumari adopted Mohan Singh in their presence. PW 8 stated that Mostt. Guna Kumari was living in the house of Bhatu Rai at village-Mohalidih. The said Bhatu Rai, the father of the plaintiff has been examined as PW 9 and the plaintiff examined himself as PW 10. The defendants examined altogether 29 witnesses, out of which DWs 4, 5, 7, 10, 14, 15, 16, 17, 20, 22, 24, 25 and 28 are formal witnesses who proved documents filed on behalf of the defendants. The other witnesses supported the case of the defendants on the point that the plaintiff was not adopted by Guna Kumari and stated that the defendants who are the agnates of recorded tenant Ayodhaya Singh had performed the funeral and Shradh ceremony of Mostt. Guna Kumari and Lalu Kumari. 20. The deed of adoption was marked as Exhibit-2, on which Madan Mohan Jha (PW2) had put his signature. Besides the signature of PW2, Exhibit-2 bears signature of Jhagru Rai and Sagar Chandra Rai. 21. The trial court observed that the scribe of the deed of adoption namely, Minakshi Prasad Dutta was not examined and other PWs did not state in the court that Guna Kumari expressed her desire to them for execution of a deed of adoption. Besides the signature of PW2, Exhibit-2 bears signature of Jhagru Rai and Sagar Chandra Rai. 21. The trial court observed that the scribe of the deed of adoption namely, Minakshi Prasad Dutta was not examined and other PWs did not state in the court that Guna Kumari expressed her desire to them for execution of a deed of adoption. The trial court noticed that there were other persons who had signed the deed of adoption but, except Madan Mohan Jha none of them were examined and thus, an adverse inference was to be drawn against the plaintiff on that count. The trial court further found that the witnesses examined on the point of adoption belonged to different villages, a fact which does not stand to reasons as to how those witnesses from different villages came to village Mohalidih where the adoption was held. The trial court held that the absence of villagers in the adoption ceremony creates doubt regarding adoption of Mohan Singh by Guna Kumari. The other circumstances which were considered by the trial court for doubting the adoption of Mohan Singh by Guna Kumari were; (i) during his lifetime Ayodhaya Singh did not prefer adoption of a son which he could have done by adopting a son either from their agnates or any other close relative, (ii) Guna Kumari after she fell ill was removed by her agnates to the original house of Ayodhaya Singh where she ultimately died and during that period Mohan Singh never lived with Guna Kumari and Mohan Singh had no connection with the family of Guna Kumari, (iii) the Mukhagni ceremony of Guna Kumari was performed by his agnates and, Guna Kumari cancelled the deed of adoption on 11.04.1969 (Ext. A). 22. Another circumstance which was taken against the plaintiff was that in his school and college records, he wrote the name of his father as Bhatu Rai and not Late Ayodhaya Singh and, the invitation card (Ext. E/1) for his marriage reflects the name of the father of the plaintiff as Bhatu Rai. 23. The trial court finally concluded that the defendants' story that Bhatu Rai, the father of the plaintiff by playing fraud and misrepresentation got deed of adoption executed on 16.07.1962 from Guna Kumari who was an illiterate lady, appears to be most natural and probable. 23. The trial court finally concluded that the defendants' story that Bhatu Rai, the father of the plaintiff by playing fraud and misrepresentation got deed of adoption executed on 16.07.1962 from Guna Kumari who was an illiterate lady, appears to be most natural and probable. The trial court further observed that Guna Kumari had initially developed some difference with her agnates and Bhatu Rai took advantage of the said fact. Guna Kumari who was in need of money approached Bhatu Rai who on the pretext of executing a Bhugatbandhadeed got the adoption-deed executed from Guna Kumari. 24. In the instant Second Appeal, the contention raised on behalf of the appellants is that the aforesaid findings recorded by the trial court have not been adverted to by the lower appellate court and without cogent reasons for disagreeing with the circumstances noticed by the trial court, the lower appellate court has reversed the findings on adoption of the plaintiff by Guna Kumari. 25. A reading of the judgment dated 25.05.1993 in Title Appeal No.83 of 1985 discloses that the facts of the case and the contentions raised on behalf of the parties have been elaborately noticed by the lower appellate court and only thereafter, as noticed above, two points for consideration were formulated by the court. The discussion on the issue of the adoption of the plaintiff starting from paragraph nos.11 to 20 runs into 9 pages. The lower appellate court noticed the evidence of PW2 who was the Purohit who performed the adoption ceremony, PW3 who stated that the deed of adoption was executed on 16.07.1962 at Jamtara Sub-Registrar’s office on which his father put his signature, PW5 who stated about adoption by Guna Kumari at village Mohalidih after observing the formalities of adoption and PWs 6 and 7 who also stated that adoption of Mohan Singh by Mostt. Guna Kumari was performed in their presence and the court finally found that during cross-examination of these witnesses no contradiction could be elicited still, their evidences have been discarded by the trial court. The lower appellate court found the evidence of these witnesses independent and reliable. The lower appellate court further found that Ext. 3 series which are various reports submitted in SDM's court, Ext. 4 series which are rent receipts, Ext. 6 which was a certified copy of report in Cr. Misc. Case No.157 of 1962 and Ext. The lower appellate court found the evidence of these witnesses independent and reliable. The lower appellate court further found that Ext. 3 series which are various reports submitted in SDM's court, Ext. 4 series which are rent receipts, Ext. 6 which was a certified copy of report in Cr. Misc. Case No.157 of 1962 and Ext. 7 which was the certified copy of deposition of Mostt. Guna Kumari in the criminal proceeding in which she admitted that Mohan Singh was her adopted son, fully proved the valid adoption of plaintiff Mohan Singh by Mostt. Guna Kumari. The lower appellate court after noticing the evidence of the witnesses produced by the defendants who stated that Mohan Singh was not adopted by Guna Kumari as her son and there was no giving and taking ceremony in the adoption of Mohan Singh and thus it was not a valid adoption, held that the defendants' witnesses failed to disprove that the adoption of Mohan Singh was not valid. Commenting upon the deed of cancellation dated 11.04.1969, the lower appellate court observed that the deed of cancellation in no way advances the case of the defendants as the deed of adoption dated 16.07.1962 has been found valid and legal. 26. From the aforesaid discussions, it is apparent that the lower appellate court decided Title Appeal No. 83 of 1985 after appreciating the evidence on record. The judgment of the lower appellate court discloses application of mind before it reversed the findings of the trial court on the issue of adoption. In “H. Siddiqui (dead) by Lrs. Vs. A. Ramalingam” (2011) 4 SCC 240 , the Hon'ble Supreme Court has held that it would amount to substantial compliance with the proceedings under section 96 CPC read with Order XLI Rule 31 CPC if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is also well settled that the appellate court hearing the First Appeal after re-appreciating the entire evidence can arrive at a different conclusion. 27. The circumstances noticed by the trial court for disbelieving the adoption of Mohan Singh by Guna Kumari are inconsequential as, the defendants failed to disprove the execution of adoption-deed. It is also well settled that the appellate court hearing the First Appeal after re-appreciating the entire evidence can arrive at a different conclusion. 27. The circumstances noticed by the trial court for disbelieving the adoption of Mohan Singh by Guna Kumari are inconsequential as, the defendants failed to disprove the execution of adoption-deed. The fact that Guna Kumari did not prefer adoption during the lifetime of her husband Ayodhaya Singh or why Guna Kumari had chosen to stay in the original house of her husband where she ultimately died are not the circumstances from which intention of Guna Kumari not to adopt Mohan Singh as her son can be gathered. It is a fact that by the time Mohan Singh was adopted by Guna Kumari, Ayodhaya Singh had died and therefore, it is not unusual that Mohan Singh continued to write the name of his father Bhatu Rai in the school records and the wedding card also reflected the name of Bhatu Rai. The adoption-deed dated 16.07.1962 is a registered deed. There is a presumption in favour of validity of a registered document. Under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 there is a presumption that a registered adoption-deed is valid. In “Atluri Brahmanandam (dead) through Lrs. Vs. Anne Sai Bapuji” (2010) 14 SCC 466 , the Hon'ble Supreme Court observed as under:- “49. ................The correctness or authenticity of the adoption-deed is not disputed. What is disputed is that the natural parents of the adoptive child who were definitely executing parties of the deed have signed as witnesses along with 7 other witnesses. In such a fact situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law. …..................................” 28. The defendants did not disclose any inconsistency in the recitals in the adoption-deed. The factum of execution of the adoption-deed has not been denied by the defendants. What has been denied by the defendants is that on the pretext of Bhugatbandhadeed the father of the plaintiff got the adoption-deed executed on 16.07.1962. However, as many as three witnesses and the Purohit have deposed that Guna Kumari adopted the plaintiff as her son and executed the adoption-deed on 16.07.1962. What has been denied by the defendants is that on the pretext of Bhugatbandhadeed the father of the plaintiff got the adoption-deed executed on 16.07.1962. However, as many as three witnesses and the Purohit have deposed that Guna Kumari adopted the plaintiff as her son and executed the adoption-deed on 16.07.1962. The presence of witnesses of different village, in my opinion, cannot be a circumstance for doubting the adoption of the plaintiff. The fact that the adoption-deed was cancelled immediately after Guna Kumari went to stay in the original house of her husband when admittedly she was in the company of the defendants, is relevant for considering the genuineness of the deed of cancellation dated 11.04.1969. Moreover, not much evidence has been led by the defendants on the issue of cancellation of the adoption-deed dated 16.07.1962. Guna Kumari before executing the adoption-deed might not have expressed her intention before the plaintiff's witnesses that she wished to execute the adoption-deed however, the same would not render the adoption of Mohan Singh invalid. The defendants, in my opinion, failed to disprove the execution of the adoption-deed and the lower appellate court has rightly, on independent assessment of the evidence, come to a conclusion that the adoption-deed dated 16.07.1962 was validly executed and the adoption of Mohan Singh by Guna Kumari was valid. The appellate court is not required to answer the trial court's findings word by word and sentence by sentence. 29. On a consideration of the materials brought before the courts below and the judgment rendered by the lower appellate court, the substantial question of law framed by this Court is answered in negative. 30. In the result, the instant Second Appeal fails and accordingly, it is dismissed.