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High Court Of Orissa
R. N. Misra And K. B. Panda, JJ.
AFTABUDDIN KHAN - Appellant
Versus
CHANDAN BILASINI - Respondent
A. H. O. 37 Of 1975
Decided On : 10/11/1976
HINDU LAW - ADOPTION - VALIDITY - REQUIREMENTS - SECTION 16 OF THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - INTERPRETATION - ADOPTION DEED SIGNED BY BOTH GIVER AND TAKER OF CHILD - ESSENTIAL - PRESUMPTION UNDER SECTION 16 NOT AVAILABLE WHERE DEED SIGNED BY NATURAL PARENTS AND ADOPTIVE PARENT SEPARATELY.
Fact of the Case:
Plaintiff No. 1, Chandan Bilasini, executed a Will in 1905, giving certain assets to her mother and other relatives, some to the family deity, and the rest to her wife. The Will appointed five executors to manage the properties and pay the mesne profits to her. Plaintiff No. 1 adopted Sudhansu Mohan Sarkar, but their relationship became embittered. In 1961, Plaintiff No. 1 sold a building to the predecessors of the defendants for Rs. 55,000/-. Sudhansu Mohan died in 1955, and in 1965, Plaintiff No. 1 adopted Plaintiff No. 2. The plaintiffs filed a suit for declaration that the sale was null and void and not binding on them, alleging that Plaintiff No. 1 had been suffering from dotage and that the sale was manipulated by her sister's son, Sailendra.
Finding of the Court:
The trial court dismissed the suit, holding that the sale was genuine and for full consideration, that Plaintiff No. 1 had only a life estate without any power of alienation, but the sale was binding on the estate as it was made for legal necessity, and that the plaintiffs failed to establish the adoption of Plaintiff No. 2. The Single Judge reversed the trial court's decision, holding that Plaintiff No. 1 had only a life estate, that Section 307 of the Indian Succession Act did not apply, and that the plaintiffs were entitled to recover possession even though they had not claimed it in the plaint.
Issues: 1. Whether the adoption of Plaintiff No. 2 was valid. 2. Whether Plaintiff No. 1 had a life estate or a widow's estate. 3. Whether the sale was binding on the estate as it was made for legal necessity. 4. Whether the plaintiffs were entitled to recover possession even though they had not claimed it in the plaint. 5. Whether the suit was barred by limitation.
Ratio Decidendi: 1. The Court held that the adoption of Plaintiff No. 2 was not valid as the deed of acknowledgment of adoption was not signed by both the natural parents of the child and the adoptive parent, as required by Section 16 of the Hindu Adoptions and Maintenance Act, 1956. The presumption of validity under Section 16 was not available as the requirement of a single document signed by both parties was not satisfied. 2. The Court held that Plaintiff No. 1 had only a life estate under the Will and not a widow's estate. 3. The Court held that Section 307 of the Indian Succession Act did not apply to the case and the sale was not binding on the estate as it was not made for legal necessity. 4. The Court held that the plaintiffs were not entitled to recover possession as they had not claimed it in the plaint and had not amended the plaint to include such a claim. 5. The Court held that the suit was not barred by limitation as the appropriate Article to apply was Article 59 of the First Schedule, which prescribed a three-year period from the date when the facts entitling the plaintiff to have the instrument cancelled first became known to him.
Final Decision: The Court allowed the appeal, set aside the judgment and decree of the Single Judge, and dismissed the suit. Costs were directed to be borne by the parties themselves.
R. N. MISRA, J.
( 1 ) THERE lived one Kalikrishna Sarkar in the town of Cuttack owning substantial properties. He died immediately after executing a Will on 11-12-1905 (Ext 11)in terms whereof some of his assets were given to his mother add other relatives, some to the family deity Sri Radha Binoda Jew and the rest of the properties were meant to go to his wife Chandan Bilasini (plaintiff No. 1 ). Five executors appointed under the Will were to manage the properties and after meeting the expenses of administration were required to pay the mesne profits to her. The testament absolutely put restriction on alienations by the wife but authorised her to take a son in adoption and in case the first adopted son died, to take another with the approval of the executors. The Will was probated in a proceeding of 1906 and while the executors were in management of the estate of the deceased, plaintiff No. 1 adopted one Sudhansu Mohan Sarkar. The adoptive mother and, the adopted son did not pull on well and their relationship became embittered. Late in 1930's, both the widow and the adopted son started claiming possession of the estate which led to a proceeding before the patna High Court under Section 302 of the Indian Succession Act. The attempt made by the adopted son failed (see AIR 1940 Pat 194, (Sudhansu Mohan v. Harish Chandra) ). Plaintiff No. 1 applied to the District Judge for grant of letters of administration in her favour and the adopted son contested the same. The court allowed the application of the widow on 21-8-1944. On 31st of July, 1961, plaintiff No. 1 sold a pucca building with outhouses in favour of the predecessors of the defendants for a consideration of Rs. 55,000/- (Ext. A ). On 7th of March, 1955, Sudhansu Mohan died while still a bachelor. On 24-8-1965, the widow adopted plaintiff No. 2 and on 30th of September, 1965, she executed a registered deed of acknowledgment of adoption (Ext. 4 ). On 29-41966, the widow and her second adopted son as plaintiffs 1 and 2 filed this suit for declaration that the sale under Ext. A was null and void and not binding on them and the defendants have not acquired any right, title or interest in the disputed property by virtue of the said conveyance on the allegation that from 1951, plaintiff No. 1 had been suffering from dotaga and she had lost the power of understanding; Sailendra, a sister's son, who was managing the properties on her behalf took advantage of the situation, completely dominated the Will of the widow and was abusing his position and the document under Ext. A was one of the several alienations manipulated by Sailendra. It was further alleged that plaintiff No. 1 had no right of alienation and, therefore, the conveyance could confer
no title on the alienees. Plaintiffs alleged that they were still in possession. When plaintiff No. 1 recovered from her illness some time in 1965, she came to learn about the fraud practised on her by Sailendra and, therefore, instituted the suit for the reliefs aforesaid.
( 2 ) DEFENDANTS in a joint written statement disputed the adoption of the second plaintiff and claimed that Ext. A was a valid sale deed conferring full title on them. They contended that the document was genuine and for full consideration-- the consideration amount having been paid before the Sub-Registrar. The asserted that they were in possession. It was further pleaded that the suit was not maintainable in the absence of a claim for recovery of possession and relief of cancellation of the sale deed of which plaintiff No. 1 was sole vendor.
( 3 ) SEVERAL Issues were framed and the learned Subordinate Judge came to hold:-
(i) The suit was defective in the absence of claim of consequential reliefs; (ii) The sale deed (Ext. A) was a genuine transaction and for full consideration; (iii) Plaintiff No. 1 had only a life estate without any power of alienation, but the sale under Ext. A having been made for legal necessity bound the estate; (iv) The transfer having bee
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