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2010 (3) GCD 2603 (Guj)
Hon’ble Mr. Justice Bankim N. Mehta
Jashwantlal Tulsidas
Versus
Maneklal Nathubhai Ors.
Second Appeal No. 95 of 1986—Decided on 21/10/2010
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 100 and Order 14 Rules 1, 2 and 3 — Suit for partition of property — Claim on basis of adoption — In absence of any pleading and foundation having been made there in the trial Court and first appellate Court rightly dismissed the appeal — Second appeal also held not maintainable.
Held :
It appears from the averments made in the plaint that the Appellant-plaintiff did not plead material preposition of adoption of Tulsidas, the father of the Appellant-plaintiff by deceased Nathubhai Durlabhbhai. Therefore, there was no material before the trial Court to frame issue with regard to adoption of Tulsidas and the trial Court had no occasion to deal with the preposition of fact of adoption. It appears from the judgment of the trial Court also that this contention of adoption was not agitated and it was raised for the first time in appeal. It is true that the first Appellate Court being Court of fact, such contentions can be raised. But it is settled preposition that a contention has to be raised on the basis of foundation. Therefore, in absence of foundation, the first Appellate Court was justified in rejecting the contention with regard to adoption of Tulsidas by deceased Nathubhai.
[Para 12]
It also appears from the impugned judgment that as there was no pleadings, no evidence with regard to adoption was adduced. Therefore also, the first Appellate Court was justified in not accepting the case of the Appellant-plaintiff. [Para 13]
Law Laid Down :
When a maternal proposition of fact or law is affirmed by one party and denied by other party the Court is required to frame issue.
Bankim N. Mehta, J.—The appellant has preferred this Second Appeal under Section 100 of the Civil Procedure Code on the following substantial question of law.
Whether in the facts and circumstances of the case, the Lower Courts were right in law in holding that the plaintiff’s father was not adopted child of deceased Nathubhai Durlabhbhai?
2. The appellant-original plaintiff filed Regular Civil Suit No. 502 of 1978 for partition of the suit property claiming his 1/4th undivided share and account of the rent received by the Respondent-original defendant Nos. 1 to 3 from the tenants of the suit premises.
3. According to the Appellant-plaintiff, he is the Manager of his guardian branch and Karta and Manager of heirs and Respondents-defendant Nos. 2 and 3 are the sons of Respondent-defendant No. 1 and Respondent-defendant No. 4 is his brother. The Respondents-defendant Nos. 5 and 6 are the sons of the Respondent-defendant No. 4. The suit property is situated at Indarpura, Golwasd, Taluka : Choryasi of Surat city, in Ward No. 3 registered as Nondh No. 1226 admeasuring about 105 Square Yards and each branch has 1/2 undivided share therein. Thereby plaintiff and his branch has 1/4th undivided share and defendant No. 4 and his branch has also undivided 1/4th share. The defendant No. 1 and his branch has 1/2 share.
4. According to the Appellant-original plaintiff, deceased Nathubhai Durlabhbhai had daughter namely Manguben by his previous marriage and after the death of his first wife, Nathubhai Durlabhbhai remarried to Revabai who had a son namely Tulsidas from her previous marriage. After the marriage, Revabai came to reside with Nathubhai Durlabhbhai with her son Tulsidas and Tulsidas was brought up as son by Nathubhai Durlabhbhai. Said Tulsidas got married with Bai Narmada by Nathubhai Durlabhbhai and Bai Reva. Tulsidas was father of the Appellant-original plaintiff and Respondent- defendant No. 4. Nathubhai Durlabhbhai died during the life time of Bai Reva and, thereafter, Tulsidas also died. Two sons were born to Bai Reva on account of marriage with Nathubhai Durlabhbhai. Out of that one son had died when he was minor and Respondent-defendant No. 1 is the other son. Thereby, Respondent-defendant No. 1, Tulsidas and Shivdas are brothers and were being brought up by Nathubhai Durlabhbhai and Bai Reva. Bai Reva executed a Will on 2nd January, 1950 and it was registered with Sub Registrar, Surat on 4th January, 1950. On account of such Will, Appellant-plaintiff and Respondent-defendant No. 4 have acquired right in respect of the suit property. Deceased Nathubhai Durlabhbhai administered the suit property as family property and after his death, Bai Reva was considered as an owner. The suit property was mortgaged by registered document dated 13th January, 1960.The said property was redeemed by document dated 11th December, 1976 and the consideration was paid out of the estate of deceased Nathubhai Durlabhbhai and deceased Bai Reva. Therefore, even assuming that the consideration was paid by Respondent-defendant No. 1, the parties are entitled for their shares and Respondent-defendant No. 1 cannot become the owner of the suit property. The appellant also claimed that there were tenants in the part of the suit property and Respondents-defendant Nos. 1 to 3 are receiving rent from them and, therefore, he is entitled for the account and share therein. Therefore, the suit was filed claiming relief as mentioned hereinbefore.
5. The Respondents-defendant Nos. 1 to 3 filed written statement at Exh.21 raising various contentions and disputing the claim made by the Appellant-plaintiff. The Respondents-defendant Nos. 4 to 6 also filed written statement at Exh.19 supporting the Appellant-plaintiff.
6. After considering the pleadings, the trial Court framed the issues and the parties adduced the evidence. At the end of trial, the Court by judgment dated 30th March, 1983 dismissed the suit. Therefore, the Appellant-plaintiff preferred Regular Ci
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