NORATAN MAL Vs. AKHEY CHAND

JUDGEMENT

(1.) THIS is a first appeal by the plaintiffs Noratan Mal and Smt. Roop Kanwar, widow of Beenjraj, against the judgment of the learned District Judge, Merta, dated the 23rd October, 1954, dismissing their suit. 2. The suit giving rise to this appeal was originally filed by appellant Noratanmal alone on the 26th September, 1950 and appellant No. 2 Smt. Roop Kanwar was impleaded as a proforma defendant, but on the 17th November, 1950 she was transposed and added as a plaintiff. 3. Their case was that appellant No. 1 was adopted by appellant No. 2 as a son to her deceased husband Beenjraj on the 29th January, 1944 and an adoption deed was executed by her in his favour on the 21st August, 1950. According to them, Beenjraj had left no son at the time of his death. He had brought the respondent Akheychand from Jodhpur to his place at Ladnu with the intention of taking him in adoption if he proved to be obedient and if his conduct was found to be satisfactory. Beenjraj was, however, not satisfied either with the respondent's conduct or his faithfulness and so he was not adopted. Before his death in Smt. 1974, Beenjraj permitted appellant No. 2 to adopt some worthy and obedient boy as a son. Accordingly, she adopted appellant No. 1 as a son. It was further averred that appellant No. 1 being the adopted son of Beenjraj, he became the owner of all the properties of Beenjraj, but the respondent wrongly declared himself to be Beenjraj's son and took illegal possession of Beenjraj's properties mentioned in Schedule A appended to the plaint, in the month of Sawan Smt. 2000 when appellant No. 1 was still a minor. Beenjraj's properties mentioned in Schedule B, however, continued to remain in possession of the appellants. It was alleged that the respondent was making efforts to take possession of the properties mentioned in Schedule B as well. It was, therefore, prayed that a declaratory decree be given to the effect that the plaintiff appellant No. 1 was the adopted son of deceased Beenjraj and as such was in possession of Beenjraj's properties as his heir and owner. | It was further prayed that the possession of the properties mentioned in Schedule A be ordered to be restored from the defendant to the plaintiffs. Lastly, it was prayed that a permanent injunction may be issued against the respondent restraining him from interfering with the properties mentioned in Schedules A and B in future. 2. Respondent Akheychand traversed the suit and claimed that he was legally adopted son of deceased Beenjraj and that his, adoption ceremony had taken place in the life time of Beenjraj on the 15th May, 1912 when he was about 10 years old. He was natural son of one Dwarkadas who used to reside at Jodhpur. From Jodhpur he was brought to Ladnu by Beenjraj and after his adoption he continued to stay at Landu as Beenjraj's son. His original name was Pachandas, but since Beenjraj's grandfather's name was Panchiram alias Pachandas, his (respondent's) name was changed after his adoption and he was called Akheychand. An entry regarding his adoption was made by Beenjraj himself in his 'bahi' in his own handwriting. Beenjraj also obtained from the respondent's natural father Dwarkadas a registered document to the effect that he was given away in adoption, Beenjraj died in Smt. 1975 and not Smt. 1974 as stated by the plaintiffs. Even in his life time Beenjraj mentioned the respondent's name as his son in several documents and actually treated him as his son. He also performed his marriage ceremony. After his death, the respondent came in exclusive possession of all the properties left by him. According to him, one Nohra mentioned at No. 5 in Schedule A was already sold by him to Killa Chandmal and Agarwal Madanlal who had occupied that property and, therefore, the suit regarding the same could not be maintained without their being impleaded as parties. The shop mentioned at No. 7 in. Schedule A was the respondent's sole personal property. Appellant No. 1 was not in possession of any property mentioned in Schedules A and B. Appellant No. 2 was no doubt occupying one apartment in the Haveli mentioned at No. 3 in Schedule A, but she had only a right of residence and not of ownership. He denied the adoption of appellant No. 1 by appellant No. 2 and also contested the validity of such adoption, if there was any. He also pleaded adverse possession of the disputed property and the bar of limitation in his favour. He further pleaded misjoinder of appellant No. 2 and insufficiency of court-fee. 3. On these pleadings, the trial court framed the following 14 issues : (1) Whether Mst. Roop Kanwar widow of Beenjraj adopted the plaintiff as a son on the 19th January, 1944 according to the directions of her deceased husband ? (P) (2) Whether the defendant obtained illegal possession of the property mentioned in Schedule A in Sawan, Smt. 2000 ? (P) (3) Whether the defendant has perfected his title by adverse possession over the disputed property ? (D) (4) Whether the plaintiffs had accepted the defendant as the adopted son of Beenjraj by a long course of conduct and, therefore they were estopped from challenging his adoption ? (D) (5) Whether the suit suffered on account of the defect relating to mis-joinder of the parties since Mst. Roop Kanwar was impleaded as a plaintiff ? (D) (6) Whether deceased Beenjraj had adopted the defendant as a son on the 15th May, 1912 ? (D) (7) In the event of issue No. 6 being decided is favour of the defendant, whether plaintiff Noratanmal could be validly adopted by Mst. Roop Kanwar as a son according to law. (D) (8) Whether the plaintiff Noratanmal could not be adopted by Mst. Roop Kanwar being her daughter's son according to Hindu Dharamshastra ? (D) (9) Whether the property mentioned at item No. 7 in Schedule A was self acquired property of the defendant ? (D ). (10) Whether the court-fee paid by the plaintiff was insufficient ? (D) (11) Whether the plaintiff No. 1 was in possession of the property mentioned in Schedule B ? (P) (12) Whether the property mentioned at item No. 5 in Schedule A was already sold to Chandmal and Madanlal and, therefore, they were necessary parties ? (D) (13) What relief the plaintiffs were entitled to ? (P) (14) Whether the suit was not within limitation ? 4. The plaintiffs examined ten witnesses including themselves and produced three documents while the defendant examined 28 witnesses including himself and produced thirty documents in evidence. 5. After going through the oral and documentary evidence produced by the parties, the trial court decided issue No. 1 in favour of the plaintiffs, but since issue No. 6 was decided in favour of the defendant, issue No. 7 was also decided against the plaintiff and it was held that the adoption of plaintiff No. 1 by plaintiff No. 2 was illegal. Issues Nos. 3, 5, 8, 9, and 10 were decided against the defendant while issues Nos. 11,12 and 14 were decided in favour of the defendant. Eventually issue No. 13 was decided against the plaintiffs and their suit was dismissed. 6. It has been urged by learned counsel for the appellants that issue No. 1 has been decided by the trial court in favour of the appellants, but issues Nos. 6 and 7 have been decided against them and, therefore, the main question for determination before this Courtis whether the decision on issues Nos. 6 and 7 by the trial court is correct or not. According to learned counsel, the trial court has committed an error in deciding these two issues viz. , Nos. 6 and 7 against his clients, because the respondent was unable to produce any registered adoption deed executed by deceased Beenjraj in his favour. It has been strenuously contended that according to law in force in the former Marwar State in the year 1912, it was incumbent upon the adoptive father to execute a deed of adoption in favour of the adopted son and that if such a deed was not executed, adoption could not be considered to be valid. In other words, the execution of a registered-deed of adoption was an indispensable act for a valid adoption and since the fulfilment of that condition was found to be wanting in the present case, the respondent's adoption should have been held to be invalid. It was also urged, though faintly, that the trial court had committed an error in placing reliance upon the various witnesses and documents produced by the defendant for proving the adoption. Learned counsel also urged that the decision on issue No. 14 against his clients was wrong, but at the same time it was conceded that the necessity of deciding that issue could arise only if this Court were to set aside the decision of the triad court on issues Nos. 6 and 7. 7. Learned counsel for the respondent has urged, on the other hand, that the decision of issues Nos. 6 and 7 by the trial court is absolutely correct and, therefore, the appeal should be dismissed. 8. It may be observed that the trial court itself remarked in its judgment that the main and most] important issue in the case was No. 6 and we think that it is more so for purposes of this appeal, because the main reason for dismissing the suit is the finding of the trial court on this issue. 9. Before examining the argument of the learned counsel for the appellants about the indispensability of a registered-deed of adoption, it would be proper to see if the respondent has been able to prove the factum of adoption by other evidence. 10. We have carefully gone into the record and find that the respondent has, in the first instance, examined those persons who were present at the ceremony of his adoption. They are DW 1 Nemichand, DW 16 Shri Kishan, DW 19 Sobhagmal, DW 26 Askaran, DW 27 Nandlal and DW 28 Akheychand himself. So far as the statement of DW 28 is concerned, it maybe argued with some justification that much importance should not be given to it since he is bound to depose in his own favour, but the same cannot be said about DWs. 1, 16, 19, 26 and 27. All these five witnesses are residents of Ladnu where Beenjraj was also living and they have stated on oath that Beenjraj had adopted respondent Akheychand in their presence. According to them, the adoption ceremony was held in summer season in Smt. 1969 at Beenjraj's house. ! A turban was put on Akheychand's head by a Brahmin and then he was made to sit in Beenjraj's lap by his natural father saying that he was giving him in adoption. Beenjraj took him in his lap and thereafter coconuts were distributed and other ceremonies also were gone into. These witnesses have been cross-examined at length, but it could not be brought out if they were partial to the respondent. The trial court, which had the additional advantage of judging their veracity by their demeanour, has relied upon their testimony and learned counsel for the appellants has not been able to show good reasons as to why they should be disbelieved by us. It may be pointed out that out of them DW 27 Nandlal was very closely related to the parties. According to him, his grand-father and Beenjraj's grand-father were real brothers and thus it was quite natural for him to be present at such a ceremony. He was an old man of 59 years of age in 1954 when he was examined and we see no good reason to throw out his evidence. It may be remarked here that about 42 years had intervened between the adoption ceremony and the year when the witnesses were examined and, therefore, minor discrepancies about the details are bound to occur and it would not be proper to lay too much stress on them. 11. Moreover, the fact of adoption is strongly supported by documentary evidence which will be discussed presently. The most important document in this respect is Ex. D. 5 dated Jeth Badi 14, Smt. 1968. It is a registered document executed by the respondent's natural father Dwarka Das in favour of the respondent's adoptive father Beenj Raj. It has been proved by DW 5 Gopi Lal and others and its genuineness had not been challenged in this Court. A perusal of this document shows that Dwarka Das had executed it in favour of Beenj Raj to say that he had given his son Pachan Das voluntarily in adoption to Beenj Raj and that neither he nor any one of his family members will raise any objection to the adoption thereafter and that if he would dispute the adoption, it should be treated as false by Raj Darbar, Panchayatt, Judicial Court, or wherever he approached. DW 1 Nemi Chand has stated that the respondent's original name was Pachan Das and Beenj Raj changed his name as Akhey Chand when he came in adoption to him. THIS fact has not been disputed before us. THIS document leaves no doubt about the fact that the respondent was given away by his natural father in adoption to Beenj Raj. The respondent has next produced the account book (bahi) of his adoptive lather of the Smt. year 1969 in which he was adopted. It has been proved by DW 1 Nemi Chand who is an aged man of 75 years of age. He stated that he was Beenj Raj's cousin since Beenj Raj was his father's elder brother's son. THIS witness was also a Panch in his community. He was, therefore, acquainted with Beenj Raj's hand-writing and according to him Exs. D. 2, D. 3 and D. 4 were all written in Beenj Raj's own hand-writing. It has not been challenged before us if these documents were not in the hand-writing of Beenjraj. A perusal of Ex. D. 2 shows that it was Beenjraj who gave Rs. 2/- for purchasing the stamp paper through Dwarkadas. Further he debited an amount of Rs. 1500/- saying that it was paid to Bhai Dwarkadas (natural father of the respondent) in connection with the adoption of Pachan. THIS entry gives a strong corroboration to the fact that the respondent was adopted by Beenjraj and that Rs. 1500/- were given to the respondent's natural father since he had parted with his own son and given him to Beenjraj. There are other entries also in Ex. D. 2 which support the fact of adoption and they need not be enumerated here. Ex. D. 4 then contains an account of all the expenses which were incurred by Beenjraj for performing the respondent's marriage. It may be noted here that plaintiff No. 2, when she was examined as PW 6, also admitted that Akheychand's marriage was performed by Beenjraj like that of a son and that all the ceremonies which were required to be performed by a mother-in-law of the respondent's wife were performed by her. She has further admitted that the 'mahira' ceremony in the marriage of the respondent was performed by her father's family members. Now, if the respondent were not actually adopted by Beenjraj and, if he were not recognised by him as his son, he would not have performed his marriage treating him as his son nor plaintiff No. 2 would have performed all those ceremonies which were required to be performed by her as the respondent's mother. Moreover, when the family members of her father's family also performed the 'mahira' ceremony, it was clear that they had also recognised the respondent as the adopted son of Beenjraj and plaintiff No. 2. Plaintiff No. 2 tried to wriggle out of the situation in which he was placed on account of the above statement by saying that her husband only wanted to adopt the respondent but as he did not prove faithful, he was not actually adopted. No evidence, however, has been led to show if Beenjraj was displeased with the respondent at any time before his death and that he had directed his wife Roop Kanwar, plaintiff No. 2, to adopt another son. Plaintiff No. 2 admitted that even after her husband's death it was the respondent who performed his funeral rites and other ceremonies (f;k dez) and that Beenjraj's turban was put on the respondent's head on the 12th day of Beenjraj's death. She has further admitted that when she went to Hardwar for immersion of her husband's ashes, the respondent had performed the 'tarpan' ceremony. Similarly, when they returned form Hardwar and went to Pushkar, it was the respondent who again performed the (riz. k) Tarpan' ceremony of his father. THIS leaves no room for any doubt that Beenjraj was treating the respondent as his son till the time of his death and that even after his death plaintiff No. 2 was treating him as her son. 12. The respondent has produced a good deal of documentary evidence to show that Beenjraj had not only adopted him as his son but he was treating him as such and mentioned him as his son whenever it was necessary to do so. For instance, he has produced Exs. D. 6 and D. 8 which are copies of the entries from the bahis of the priests at Hardwar and Pushkar respectively. They have been proved by DW 6 Parasram and DW 7 Motilal priests from Hardwar and Pushkar. A perusal of Ex. D. 6 shows that Beenjraj had gone to Hardwar in Smt. 1970 and he had noted in the 'bahi' of the priest that his wife plaintiff No. 2 and Akheychand were also in his company. Similarly, he noted in the 'bahi' of the priest at Pushkar that his son Akheychand respondent was in his company. The respondent has further produced Exs. D. 9 and D. 10 which are copies of the plaints filed by Beenjraj in Thikana Court, Ladnu in the Smt. year 1970. In these plaints also, Beenjraj added the name of respondent Akheychand as his son and co-plaintiff. He has also produced Ex. D. 13. A which shows that he was sued against as a son of Beenjraj. Another important document produced by him is Exhibit D/12 Dated 25. 12. 43 DW 15 Shivlal has proved the thumb impression of appellant No. 2 on this document. He has stated that this document was thumb-marked by her in his presence and that the contents marked B to C are in his hand-writing. A perusal of this document read together with the above evidence shows that the respondent was not only adopted by Beenjraj as his son, but he was treated as such throughout his life time and that he was treated as a son even by plaintiff No. 2 Mst. Roop Kanwar till 25. 12. 43. It appears that certain differences between appellant No. 2 and respondent arose, for reasons best known to them, sometime in the year 1943 and therefore both of them agreed to appoint Shri Nihalchand and others as arbitrators (Panchas) to resolve the dispute arising between them. It is significant that by the time this document was executed, that is the 25th December, 1943, respondent was treated by Mst. Roop Kanwar as her son, because he has been mentioned as the adopted son of Beenjraj even in this document. It seems that the unfortunate differences between the mother and the son could not be resolved and, therefore, in order to disinherit the respondent, she thought of adopting her daughter's son, appellant No. 1, as a son. It will be discussed at a later stage whether she could adopt another son. It would suffice here to say that the plea raised by the plaintiff No. 2 to the effect that the respondent was not adopted as a son by her husband is not correct. On the other hand, there is over-whelming evidence on record whereby it is proved beyond any manner of doubt that the original name of the respondent was Pachandas, that his natural father Dwarkadas gave him in adoption to Beenjraj and Beenjraj adopted him as a son on the 15th May, 1912. After his adoption, his name was changed from Pachandas to Akheychand and Beenjraj continued to treat him as his adopted son and mentioned his name as his son in several documents and plaints signed by him. His marriage was performed by Beenjraj and Mst. Roop Kanwar, appellant No. 2, performed all the ceremonies of the marriage as the respondent's own mother. She also continued to treat him as an adopted son for more than 30 years. Even in the document Ex. D. 12 dated the 25th December, 1943, she mentioned him as her adopted son. It is also proved that Beenjraj's property was in possession and control of the respondent and rent-notes Exs. D. 14, 15, 22 and 23 were executed by different tenants from time to time in his name. It was incorrect on the part of the appellant to say that the respondent was only brought by Beenjraj to be adopted as a son and that he was not adopted. On the contrary, it is proved from the statement of DW 12 Naraindas, who was another son of respondent's natural father Dwarkadas, that the respondent lost all rights in his natural father's family and no share was given to him from the property of Dwarkadas. 13. It now remains to be considered whether the respondent's adoption was not valid in law. It has been strenuously urged by learned counsel for the appellants that in the former State of Jodhpur (Marwar) no adoption could be valid unless a registered deed of adoption was executed by the adoptive father in favour of the adopted son, and since no such document was executed by Beenjraj in favour of the respondent, his adoption could not be treated as valid in law. In reply, it is urged by learned counsel for the respondent that after the year 1914 a view did prevail in the law courts of Marwar that the execution and registration of an adoption-deed was necessary for a valid adoption, but it is pointed out that such a view prevailed on account of an erroneous interpretation of the Registration Act of Marwar of Smt. 1899 and that this view was not binding on this Court. It is also pointed out that the adoption in the present case took place prior to the year 1914 and, therefore, the execution and registration of an adoption-deed was not at all necessary at that time. 14. Learned counsel for the respondent has rightly urged that the adoption of his client took place in May, 1912 and, therefore, it is to be seen whether there was any substantive law prevailing at that time whereby it was necessary to execute a registered deed of adoption in order to make the adoption valid. Learned counsel for the appellant has not been able to point out any law except the Marwar law of registration, 1899. (dkuwu jftlvh] fj;klr tks/kiqj 1899) The relevant portion of sec. 7 thereof, on which reliance has been placed, ran as follows :

(2.) UHPS fy[kh;ksm+k nlrkost jh jftlvh dh tkosyk ----- ------ ------ (4) [kksys jks fy[kra