SAWAN RAM Vs. KALAWANTI

JUDGEMENT

(1.) One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his death, he owned some land and a house. 4 bighas and 17 biswas of the land were mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of respondent No. 3, Babu Ram. Later, on 22nd August 1949, she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala wanti who was related to her as a grand-niece. Sawan Ram appellant instituted a suit for a declaration that both these alienation were without legal necessity and were not binding on him claiming that he was the nearest reversioner of Ramji Dass, being his collateral. In that suit, Smt. Bhagwani the donee, Smt. Kala Wanti, respondent No. 1, and the mortgagee, Babu Ram, respondent No. 3, were impleaded as defendants. That suit was decreed and Smt. Bhagwani went up in appeal to the High Court. During the pendency of the appeal, Smt. Bhagwani adopted respondent No. 2. Deep Chand, the son of Brahmanand and his wife, respondent No. 1. Smt. Kala Wanti. A deed of adoption was executed by her in that respect on 24th August 1959. The appeal was dismissed in spite of this adoption.

(2.) Smt.. Bhagwani died on S1st October 1959, and thereupon, the appellant brought a suit for possession of the house and the land which had been gifted by Smt. Bhagwani to respondent No. 1 as well as for possession of the land which she had mortgaged with respondent No. 3. It was claimed that Smt. Bhagwani had only a life interest in all these properties, because she had divested herself of all the rights in those properties on 22nd August 1949, before the Hindu Succession Act, 1956 (No. 30 of 1956) came into force. The adoption of Deep Chand was also challenged as fictitious and ineffective. It was further urged that even if that adoption was valid Deep Chand became the adopted son of Smt. Bhagwani and could not succeed to the properties of Ramji Dass. The suit was dismissed by the trial Court, holding that the adoption of Deep Chand was valid and that, though Smt. Bhagwani had not become the full owner of the property under the Hindu Succession Act, 1956, Deep Chand was entitled to succeed to the property of Ramji Dass in preference to the appellant, so that the appellant could not claim possession of these properties. That order was upheld by the High Court of Punjab, and the appellant has now come up to this Court in appeal by special leave.

(3.) This point raised on behalf of the appellant is negatived by the evidence on the record. There is oral evidence of the adoption which has been accepted by the lower Courts, and it shows that Deep Chand was given in adoption by both the parents to Smt. Bhagwani. Even the deed of adoption, dated 24th August 1959, on which reliance was placed on behalf of the appellant in support of this argument, does not bear out the suggestion that Deep Chand was given in adoption by his mother and not by his father. The deed clearly mentions that "the parents of Deep Chand have, of their own free will, given Deep Chand to me, the executant, today as my adopted son." This recitation is followed by a sentence which states: "Mst. Kala Wanti, mother of Deep Chand, has put her thumb-mark hereunder in token of her consent." It was from this solitary sentence that inference was sought to be drawn that Deep Chand had been given in adoption by his mother, Kala Wanti and not by the father. The deed, in the earlier sentence quoted above, clearly mentions that Deep Chand had been given in adoptions by his "parents" which necessarily includes the father. This later sentence, it appears, was put in the deed, because S. 9 (2) of the Act mentions that the father is not to exercise his right of giving his child in adoption, save with the consent of the mother. "The consent of the mother" having been used in the Act which was applicable, the draftsmen of the deed included in it the fact that Deep Chand's mother had actually given her consent and obtained her thumb impression in token thereof. This mention of the consent, in these circumstances, be held to show that it was mother who, in fact, gave the child in adoption and not the father.