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2002 Supreme(Raj) 897
[Citation : RLW 2004 RJ 117 (HC)]
(Rajasthan High Court)
LRs. of Sorawar Singh Vs. LRs. of Kan Mal (Balia, J.)
HON'BLE RAJESH BALIA, J.
LRs. of Sorawar Singh
Versus
LRs. of Kan Mal
S.B. Civil Writ Petition No.3770 of 1989, decided on 26.07.2002
L.R. Mehta, for Petitioner
B.L. Purohit, for Respondents
Headnote:(a) Hindu Adoption and Maintenance Act, 1956, Sec. 10 and Sec. 11(3) – Validity of adoption – Male child adopted by widow lady – Held – Where parties do not join issue or abandon it after joining the issue by accepting the fact of adoption, the proceedings must constitute on assumption that adoption is an admitted fact.
(Paras 25 to 29 & 32)
Once contest to the issue of validity of adoption was abandoned explicitly by the respondents defendants in this case before the trial court it was not open for the Appellate Authorities to hold the adoption to be invalid by assuming that certain state of affairs to exist from some material on record and hold that contra requirement has not been proved - Facts in dispute only are required to be proved and not the admitted facts. (Para 26)
Parties are deemed to have not joined issue about the validity of adoption to be contrary to Sec.10 so as to assume certain facts to invalidate the adoption. Once defendants abandoned contest on any issue and accepted existence of fact in issue, they are bound throughout the proceedings and cannot be permitted to resile from in the court in appeal. Nor is the Appellate Court entitled to reach its own conclusion of facts about existence of which parties do not join or after joining the issue deliberately concedes in favour of other party. The Court must proceed further on the premise of existence of such facts viz the existence of valid adoption of petitioner in present case. Finding as to invalidity of adoption in my opinion suffers from an error apparent from record. (Para 28)
(b) Hindu Adoption and Maintenance Act, 1956, Sec. 12 – Doctrine of relation back – Status of adoptive son taken in adoption by a widow – Held – Adoption relates back to the point of time immediately before the death of adoptive father – The deceased husband of female adopting a child may be recognised as adoptive father of such adopted child, he does not divest the adoptive mother of her property which vest in her absolutely, whether as her stridhan or acquired as an heir of her husband or from any other relative.
Petition dismissed.
The adoption deed does not anywhere deals with disposing power of the adoptive mother. It does not restrict in any manner the disposing power of the adoptive mother. Mere recognition of a adopted son as owner of the property, does not lead to any inference that this was agreement to the contrary so as to denude the holder from her disposing power of the property of which she is not lawfully divested.
The deceased husband of the female adopting a child may be recognised as adoptive father of such adopted child, he does not divest the adoptive mother of her property which vest in her absolutely, whether as her stridhan or acquired as an heir of her husband or from any other relative. (Para 44)
.
(2). This case has a chequered course of claim to rights to the land in question.
(3). The land in question as appears from the chronology of events recorded by the Board of Revenue in its judgment dt. April 24, 1985, while deciding the review application arising out of its judgment dt. 5.6.78, that the land in question was a khudkast land of Samandar Singh, who died on Miti Kartik Sudi 15 Samvat 1975 corresponding to Gregorian Calendar 1918. He left behind him no male issue, but was survived by a widowed mother and two widows Ugma Bai and Bhanwar Bai. By order No.21773 the then ruler of Mewar ordered to take the said Khud Kasht land under the management of the State on finding that the three female heirs of Samandar Singh viz the two widows and widowed mother are not able to look after the land. The yearly yield from the Hawala land was Rs.125/- per annum and same was ordered to be paid to two widows and the widowed mother of Samandar Singh. Thereafter, on Miti Posh Budhi 10 Samvat 1976, the then ruler of Mewar passed another order No.23756 to the effect that the income from the land in village Parlia should be appropriated to the Government of Mewar and the three widows may be paid subsistence allowance of Rs.125 per year during their, life time by the Mewar Government, which amount was enhanced from time to time. The Hawala land was for sometime continued to remain in the name of widowed mother of Samandar Singh, but later on it was entered in the name of Government. In Samvat year 1996 (1940) Kanmal S/o Bheron Lal and Bansi Lal S/o Kali Charan, were entered as Shikmi (sub-tenant) in respect of land in dispute. Meanwhile, widowed mother and one widow of Samandar Singh namely Ugam Bai had expired and only Bhanwar Bai survived.
(4). After death of widowed mother of Samandar Singh, escheat proceedings were started. However, that was objected to by Bhanwar Bai, the surviving widow of Samandar Singh and she made a representation that the land should be restored in her name and she may be put in possession of agricultural land left by her husband and the possession from Shikmi be restored to her.
(5). On this representation, an order was made on 15.12.51 to cancel escheat proceedings, thus accepting the representation of Bhanwar Bai. However, it was directed that plots of land given on Bapi shall not be disturbed and that the other plots of land shall also remain in possession of the existing tenants until they are held liable to ejection under the existing laws.
(6). However, the said Bhanwar Bai persisted with her right to reclaim the lands left by her husband. On the report of Commissioner dt.7.8.53 the State Government passed an order on 28.12.53 with the following directions:
``It is clear from the report of Mst. Bhanwar Bai widow of Samandar Singh of village Parlia was deprived of her khud kasht land measuring 91.5 bighas wrongfully and cannot now be put in possession of her whole land. 11.11 biswas have already been given to Bapi and Bapidars cannot be ejected. The remaining land is also in possession of the Shikmi cultivation. With a view to afford relief to the widow I am directed to convey sanction of H.H. and Rajpramukh to the following as recommended:
(a) The name of Mst. Bhanwar Bali widow of Samandar Singh, Parlia be entered instead of Sarkar in the revenue records for Hawala lands, which are under the Shikmi cultivators and have not been given in Bapi.
(b) The widow may be allotted 91.5 bighas parat land for purpose of cultivation.
(7). Still dissatisfied with this order that notwithstanding the restoration of her name in the land records in place of her husband the same lands were not being restored to her, she persisted with her claim to possession of her husbands land with the State. This led to making of further orders. In continuation of order dt. 28.12.53, on 19/07/1955 following order was passed by the Govt. of Rajasthan:
``I am directed to request you kindly to
