SARAN PAL Vs. KELA DEVI

JUDGEMENT

(1.) The present appeal has been filed by defendant No. 2 in a suit for declaration that the adoption of defendant No. 2 by defendant No. 1 was illegal, fictitious and ineffective. A gift deed executed by defendant No. 1, in favour of defendant No. 1, was also sought to be Cancelled. The suit was filed by Smt. Kela Devi, who was impleaded as respondent No. 1 in the present case. The defendant No. I was Smt. Radha, the adoptive mother of the appellant. A small pedigree is relevant to understand the situation in the instant case; CHATRa (Died in 1953) Mst. Mishri (first wife) Smt. Radha Devi (defendant No. 1) Second Wife (Died on 13 -8-1978) Jai Pal (died in 1957) Kela Devi (P) (daughter died on 17-9-1974) Saran Pal (adopted on 14-3-1968) It is not disputed that at the time of death of Chatra in 1953, his first wife Mishri was already dead. Under Section 171 of the U. P. Zamindari Abolition and Land Reforms Act, Jai Pal was the successor of Chatra and was as such recorded as Bhumidhar of the disputed property. On his death, in 1957, Smt. Kadha Devi applied for mutation in her favour as widowed mother. She claimed rights under Section 171, Clause (d) of U. P. Zamindari Abolition and Land Reforms Act. It so seems an objection was filed by Smt. Kela Devi claiming that she was entitled to inherit Jai Pal as sister. On 8th of March 1958 a compromise was filed before the Mutation Court, according to which Smt. Radha Devi was entitled to be recorded and she was given life estate. It was also mentioned in the compromise that Smt. Kela will get her objec tion to mutation dismissed. It was further provided in the compromise that neither Radha Devi nor Smt. Kela were entitled to alienate any portion of the property and on death of Smt. Radha Devi; Smt. Kela Devi or heirs were entitled to succeed to her. This compromise in the mutation proceedings had been accepted by both the Courts below. Leter on 14th March 1968. Smt. Radha Devi adopted Saran Pal as his son to herself and her husband Chatra. It may also be mentioned that subse quently she executed a gift deed in favour of adopted son on 20th July 1968. Both the Courts below held under the compromise Smt. Radha Devi was a limited owner and she had no right to transfer the property by gift deed to Saran Pal. It was also held that adoption of Saran Pal by Smt. Radha Devi was valid. The trial Court decreed the suit for cancellation of the gift deed in favour of Saran Pal, but dismissed it for declaration that adoption of Saran Pal was invalid. No appeal was filed by the plaintiff against the dismissal of suit relating to adoption of Saranpal and that finding became final. An appeal was filed by the defendant Saran Pal which has been dismissed by the Court below, holding that Saran Pal was not entitled to any property under the gift deed and Smt. Radha Devi was entitled to enjoy the property during her life time. Saranpal has come up in appeal against the decision of the Courts below. The learned counsel for the appellant raised the following points before me: (i) That the rights of Smt. Radha Devi were governed by the provi sions of U. P. Zamindari Abolition and Land Reforms Act and not by Hindu Succession Act; (ii) That the alleged compromise in the mutation proceedings was neither registered nor was in any regular suit nor was admissible in evi dence. In any case it does not confer any rights on the parties; (iii) The last point that was pressed by the learned counsel was that the adoption would relate back to the date of death of adoptive father or any transfer or alienation made by the person holding property will have no effect. POINT NO 1: The learned counsel for the appellant relied upon Section 4 of the Hindu Succession Act. He argued that sub-section (2) of Section 4 of the Hindu Succession Act specifically provided that the provisions of that Act were not to effect the devolution of tenancy rights in respect of agricultural holdings. The learned counsel for the respondent, however, relied upon Section 14 of the Hindu Succession Act and cited a case reported in Gummalapura Taggina Matada Kotturuswami v. Veerawa and others (A. I. R. 1959 S. C. 577 ). He relied upon that decision, where it held that the word 'possessed' under Section 14 was to be taken in its widest import. The learned counsel argued that the property was possessed by Smt. Radha Devi and on enforcement of the Act, she became absolute owner of the property. The learned Counsel also relied upon Section 153 of the U. P. Zamindari Abolition and Land Reforms Act, wherein a Bhumidhar was given absolute right to transfer the property. There is no dispute relating to the provisions of the U. P. Zamindari Abolition and Land Reforms Act. How ever, as argued by the learned counsel for the appellant the agricultural tenan cies were not to be governed by the provisions of Hindu Succession Act. The learned counsel for the appellant relied upon a case reported in Uma Shanker and another v. Deputy Director of Consolidation (A. I. R. 1973 All. 407 ). The Division Bench deciding the case held that the bhumidhari rights were tenancy rights and in view of Section 4 (2) of the Hindu Succession Act, the devolution was to be governed by Sections 171 to 175 of the U. P. Zamindari Abolition and Land Reforms Act and was not to be disturbed by provisions of Hindu Succession Act. ' Another case replied upon by the learned counsel has been reported in Mahendra Singh v. Attar Singh, ( 1967 R. D. 191) that is also a Division Bench case, wherein it has been held that Bhumidhari rights were special rights and the notice of Hindu Law or Mohammedan Law were not to be imported in the rights created by the U. P. Zamindari Abolition and Land Reforms Act. It was further held that the principal for Coparcenary in Hindu Law did not apply to the property as governed by U. P. Zamindari Abolition and Land Reforms Act. No case against those Division Bench cases could be cited by the learned counsel for the respondent. I am in respectful agreement with the Division Bench cases referred to above and I hold that the provisions of Hindu Succession Act did not apply to the Bhumidhari holding, that is the property in suit. POINT NO. II: The second point pressed by the learned counsel for the appellant was that the alleged agreement (Exhibit 6) required registration and was filed in mutation case and, was, therefore, not binding on the parties. The learned counsel for the appellant cited a case reported in Chandra Bhan Dutt Ram Pandey v. Jagdish Dutta Ram Pandey (1962 A. L. J. 404 ). In that case a com promise in the shape of family settlement, as pleaded in the present case, was set up; that compromise was not registered. It was held by a Division Bench that agreement required registration under Section 17 of the Registration Act, and, therefore, an unregistered agreement was not admissible. It was further held that it could not be admitted even for collateral purposes under Section 49 of the Registration Act, as the endorsement of the same could not be held to be for collateral purposes. The learned counsel also relied upon a Full Bench case of our Court, reported in Ram Gati Chaube v. Ram Adhar Chaube (A. l. R. 1961 All. 537), in that case as well, a compromise petition effecting the immovable property was filed in mutation; that petition purported to declare the share of the parties. It was held that the Compromise Petition was compulsorily registrable and as it was not regis tered, it was ineffective and inadmissible. Thus I find that Exhibit 6 could not confer any rights on the parties nor could curtail the rights of Smt Radha Devi and could not be looked into for want of registration. The learned counsel for the respondent, however, contended that this compromise has been acted upon by the parties and was thus binding on them. The learned counsel argued that under that compromise Smt. Kela Devi with drew her objection and Smt. Kela along with Smt. Radha Devi executed certain sale-deeds in favour of some strangers. From the recitals in the compromise, I find, and the Court below has also noted it, that neither Smt. Kela Devi nor Smt. Radha Devi were given the right to alienate any portion of the property. On the other hand there was a prohibition both to Kela Devi and Smt. Radha Devi from transfering the properties. They simply defied the compromise and did not act in accordance with it. From the claim of Smt. Kela Devi and after considering the provisions of Section 171 of U. P. Zamindari Abolition and Land Reforms Act, there is no doubt that the ejection of Smt, Kela was wholly unsustainable in mutation proceeding. The widowed mother i. e. Smt. Radha Devi came in Clause (b) of Section 171 of U. P. Zamindari Abolition and Land Reforms Act, whereas the sister came in Clause (ff) of the said section. Thus she was not entitled to mutation on death of Jai Pal. Her objection was alto gether frivolous. I accordingly hold that compromise deed (Exhibit 6) was not at all admissible in evidence nor it could create any rights in favour of any of the parties by estoppel or acquiescence. Estoppel could not be set up by Smt. Kela as she knew the true state of affairs. She was not mislead nor she acted on the representation of Smt. Radha Devi. POINT NO. III: The third point argued by the learned counsel for the appellant related to the effect of adoption of Saran Pal on the rights of the parties. Adoption has been found to be valid and as a fact by both the Courts below. The learned counsel contended that adoption was to take effect against every heir of Chatra, who was his adoptive father. According to the learned counsel the property in the hands of Smt. Radha Devi or of Smt. Kela Devi or any third person could not effect the rights of the adopted son Saran Pal. The crux of the argument of the learned counsel for the appellant is that Saran Pal would be deemed to have inherited on the death of Chatra along with his brother Jai Pal. On the death of Jai Pal, he was entitled to succeed the share of Jai Pal also under Section 171 of the U. P. Zamiudari Abolition and Land Reforms Act. The learned counsel relied upon two cases decided by the Supreme Court; the first case relied upon by him is Srinivas Krishnarao Kongo a. Narayan dev ji Kango and others (A. I. R. 1954 S. C. 379 ). That case relied upon 1954 S. C. and other cases and concluded "the ground on which an adopted son is held entitled to take inde-feasance of the rights acquired prior to his adoption is that in the eye of law. His adoption relates back by or legal facts to the date of death of the adoptive father. He could be in a position of a posthumous son. The scope of principle of relation back is clear. It applies only when the claim back by the adopted son relates to the estate of the adoptive father. " In deciding that an adopted son is entitled to alienate an estate of colla teral which has divested the inheritance prior to adoption; Anant Bhikkappa Patil v. Shankar Ramchandra Patil (A. I. R. 1943 P. C. 196 ). The other case cited by the learned counsel is reported in Krishnamurttii Vasudeorao Deshpande and another V. Dhmwaraj (A. I. R. 1969 S. C. 59), in that case 1954 case mentioned above was also relied upon and the principles initiated in that case were confirmed. Their Lordships confirmed that the estate claimed was that of his adoptive father and if the adoption was valid, it related back to the date of death of adoptive father and the persons who held the property in the meantime were to be divested. The learned counsel for the respondent, however, argued that as the principle of Hindu Law could not be imported to the Tenancy Law, i. e. Zamindari Abolition and Land Reforms Act, the aforesaid Supreme Court cases have no application to the same. The position under the U. P. Zamin dari Abolition and Land Reforms Act in respect of natural and adopted son was considered in Subhash Misir v. Thagai Misir (1964 R. D. 255 ). It was held in that case that the adopted son of a widow would be deemed to be son of her husband for the purposes of Sections 171 and 172 of the Act. The objection of the learned counsel for the respondent, therefore, cannot be sustained. The other objection of the learned counsel, however, is that the cases cited above relating to divesting of the other heirs by the son of adoption could not hold good in view of Section 12 of the Hindu Adoption and Maintenance Act. The learned counsel argued that the adoption under the said Act was only by the adoptive mother and not to the adoptive father. The learned counsel further argued that under Clause (c) of Section 12 of the aforesaid Act the properties that had vested in Smt. Radha Devi on death of Jai Pal could not come to the adopted son by his adoption and Smt. Radha Devi could not be divested of the properties. It is true that the properties that has vested in Smt. Radha Devi, she could not be divested on adoption of Saran Pal. Section 12 Clause (c) of the Act is clear about it and, therefore, by mere adoption on the date of adoption Saran Pal did not acquire any rights to the properties either on Jai Pal or Smt. Radha Devi. The other question raised by the learned counsel for the respondent was that the adoption was by the lady herself and not to the husband. He wanted to rely on Section 12 of the Hindu Adoptions and Maintenance Act. He argued that the section permitted adoption even by an unmarried woman. Consequently in absence of any evidence to the contrary it should be presumed that appellant was adopted by Smt. Radha Devi to herself and riot to her husband. This question was not raised by the plaintiff it any earlier stage. The learned counsel for the appellant argued that there was no mention in the adoption deed about adoption on behalf of the husband of Smt. Radha Devi. Under the circumstances the only presumption could be that the adop tion was by Smt. Radha Devi in her personal capacity. I have looked to the adoption deed (Exhibit 6 ). In the very beginning the document mentions that she had no son from her or from her deceased husband alone on the date of adoption; that phrase is reproduced below: "ki Pratham Paksha ek Vidhwa wa bridha Kareeb Sath Varsh ki hai aur Koi Larka Pratham Paksha Wa Ushke Mratak Pati ke is Samai Maujood Nahi Hai Aur Hindu Dharm ke Anusar koi Putra Pind Pani Adi Dene ke Liya Hona Joroori Hai". The portion of adoption deed mentioned above proves two things; firstly that the adoption was made as a Hindu widow for herself and she and her deceased husband had no son alive on that date. The second thing that is clear from this document is that the adoption was sought to be made for spiritual salva tion of the lady and the husband as that was not possible without a son. These two things leave no room for doubt that the adoption was made for the husband of the lady as well. The learned counsel for the appellant, however, relied on a case reported in Sawan Ram v. Kalawanti (A. I. R. 1967 S. C. 1761), Their Lordships of the Supreme Court held in paragraph 7 of the aforesaid case as under: "it is significant that, in this section, the adoption to be made is men tioned as "by or to a Hindu". Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and the other is adoption to a Hindu. If the view canvassed. , on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindus and not to Hindus. On the fact of it, adoption to a Hindu was intended to cover cases where an adoption is by one person, while the child adopted becomes the adopted son of another person also it is only in such a case that it can be said that the adoption has been made to that other person. That most common instance will naturally be that of adoption by a female Hindu who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a Court of compe tent Jurisdiction to be of unsound mind. In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and finally renounced the world or has been declared to be of unsound mind. " This case sets the controversy at rest. In case there was no indication about the adoption being for the widow alone, the adoption would be, not only for herself but for her deceased husband as well. I consequently hold that Saran-pal was adopted by Smt. Radha Devi as her son and son of her deceased husband Chatra as well. I have already held above that Smt. Radha Devi was the Bhumidhar and absolute owner of these properties under Section 153 of the U. P. Zamindari Abolition and Land Reforms Act. I have also held that the alleged compro mise (Exhibit 6) between Sint. Kela Devi and Smt. Radha Devi was neither binding on them nor it was admissible on evidence. Therefore, Smt. Radha Devi was full owner of the property and had a right to gift the same to the appellant, her right to gift the property was not at all fettered. The learned counsel for the respondent however, relied upon sub-section (c) of Section 12. He argued that mere adoption could not divest Smt. Radha Devi and she was bound by Exhibit 6 could not have gifted the property. The effect of Exhibit 6 having been considered above, this argument of the learned counsel cannot be accepted. He also argued that the case was to be governed by Section 172 (1) (a) of the U. P. Zamindari Abolition and Land Reforms Act. On death of Smt. Radha Devi the property could have been succeeded to by the heirs of Jai Pal who was last male owner. The contention was that this adopted son Saran Pal could not be the heir of Jai Pal. This argument is not correct. Clause (f) of Section 171 of the Zamindari Abolition and Land Reforms Act gives right to a brother to succeed. This clause reads as under; "brother being the son of the same father as the deceased. " The adoption as I have held above related to Chatra, who would be the adoptive father. Chatra was also the father of Jai Pal and consequently Saran Pal, the appellant was entitled to succeed to Jai Pal as brother, under the aforesid clause. The argument of the learned counsel is even otherwise not sound. His contention was that when Jai Pal and Chatra died then Saran Pal was not in picture and consequently he could not be amongst the heirs as con templated by Section 171 (1) (a) read with Section 171 of the U. P. Zamindari Abolition and Land Reforms Act. Section 172 (1) (a) provides the time of opening of succession as death of the widow. On that date the succession in accordance with Section 171 in relation to the last male holder had to be ascertained. In our case the widow Srnt. Radha Devi expired on 13-8-1978 during the pendency of the present appeal. On that date Saran Pal certainly was the brother of Jai Pal. Both were sons of Chatra; one by adoption and the other natural son. Consequently Saran Pal was entitled to succeed to Jai Pal and also Smt. Radha Devi under Section 172 (1) (a) read with Section 171 (f) of the Act. The argument of the learned counsel cannot be accepted. I may take a case where one dies leaving a widow and a daughter. The daughter is subsequently married and bears a on. Thereafter daughter also dies. Obviously on the date of death of the last male owner, the daughter's son was not in existence though daughter was dead. Obviously under Section 172 (1) (a) daughters son of the husband of lady who was an heir of the last owner will be entitled to inherit. In the result, the appeal succeeds. The judgment and decree passed by both the Courts below is set aside and the suit of the plaintiff is dismissed with Costs. .