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Allahbad High Court
GYANENDRAKUMAR,GANGESHWARPRASAD
Arjun Singh - Appellant
Versus
Virendra Nath - Respondent
Decided On : 01/02/1970
ADOPTION - Authority to adopt - Proof - Agreement between daughters of deceased and widow of predeceased son - Recital in agreement that deceased had expressed wish in memorandum which was found with third person - Memorandum not amounting to will - Agreement not incorporating terms of will or giving shape to directions or dispositions made in will - Agreement only purporting to be document in conformity with wishes of deceased - No other source of authority mentioned in agreement - Inference that there was no other source - Oral evidence of authority to adopt wholly unfit for reliance and untrue - Factum of adoption not proved - Adoption invalid.
Fact of the Case:
Suit for possession of four shops and one third share in a house situate in Agra and for mesne profits. The plaintiff claimed to have succeeded to the property after the death of his mother, who was one of the two daughters of the owner of the property. The defendants, who were the sons of the other daughter of the owner, claimed that the property was joint family property and that the plaintiff had no title to it. They also claimed that the plaintiff's mother had adopted one of the defendants as a son to her deceased husband, and that the adoption was valid.
Finding of the Court:
The court found that the agreement between the daughters of the deceased and the widow of the predeceased son did not incorporate the terms of a will or give shape to any directions or dispositions made in a will. It only purported to be a document in conformity with the wishes of the deceased. The court also found that there was no other source of authority for the adoption mentioned in the agreement, and that the oral evidence of authority to adopt was wholly unfit for reliance and untrue. The court further found that the factum of adoption was not proved, and that the adoption was invalid.
Issues: 1. Whether the plaintiff is the son of Mst. Chameli daughter of Dal Chand as alleged? 2. Whether Dal Chand died as a separate member as alleged by the plaintiff and whether property in suit is his self-acquired property as alleged? 3. Whether the defendant No. 2 was adopted by the widow of Damodar Das deceased as alleged and whether the adoption was valid? 4. Whether the suit is under-valued and the court-fee paid is insufficient? 5. Whether the suit is barred by time? 6. Whether the suit is barred by estoppel and acquiescence? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the plaintiff is entitled to mesne profits, if so, at what rate? 9. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: An agreement between the daughters of a deceased person and the widow of a predeceased son, which recites that the deceased had expressed a wish in a memorandum which was found with a third person, but which memorandum did not amount to a will, and which agreement does not incorporate the terms of the will or give shape to any directions or dispositions made in the will, is only a document in conformity with the wishes of the deceased. If no other source of authority for the adoption is mentioned in the agreement, the inference is that there was no other source. Oral evidence of authority to adopt which is wholly unfit for reliance and untrue cannot be relied upon to prove the authority to adopt. The factum of adoption must be proved by reliable evidence, and if the evidence is not reliable, the adoption cannot be said to have been established. Even if the factum of adoption is regarded as inferable from the circumstances of the case, an inference as to the existence of the authority necessary for validating an adoption may also arise from a long course of conduct, but the conduct which may give rise to that inference must throughout be characterised by uniformity and consistency.
Final Decision: The appeal was allowed, the decree of the lower court was set aside, and the suit of the plaintiff for possession of the properties in suit was decreed. The plaintiff was also granted a decree for mesne profits against the defendant for a period of three years preceding the date of suit and for pendente lite and future mesne profits. The decree for mesne profits was, however, only a preliminary decree, and the amount of mesne profits payable to the plaintiff by the defendant was to be determined by the trial court and a final decree in respect of the amount due was to be passed in favour of the plaintiff against the defendant on payment of the requisite court-fee.
GANGESHWAR PRASAD, J. : This is a plaintiff's appeal and arises out of a suit for possession in respect of four shops and one third share in a house situate in Agra and for mesne profits. The following pedigree, which is not in dispute, will be of help in a proper appreciation of the facts of the case:
DAYA RAM
Lachman dead Balwant Dal Chand
: Mst. Kaushalya
Nathi Lal (dead) Panna Lal (dead)
Virender Nath Brijendranath
defendant no. 1 defendant no. 2
Narandra Sachendra Dharmendra Ravindra Nath Devendra Nath
Kalawati Damodar Das Mst. Chameli (dead) (predeceased Dal Chand) : Ranchhordas : Pushpa Wati (dead)
Arjunsingh (plaintiff) Prem Wati It would be seen that Dal Chand had a son, Damodardas, and two daugthers, Smt. Kalawati and Smt. Chameli. The case of the plaintiff, Arjun Singh, is that the property in suit was owned exclusively by Dal Chand and upon his death, which took place in August 1914, it devolved upon his two daugthers because his son had predeceased him. Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had been married outside Agra. The property was, therefore, being managed by Pannalal and Nathilal, nephews of Dalchand, on behalf of the two daugthers. It has further been alleged that under an agreement dated September 2, 1914 the rent of the shops in suit, which were all in the occupation of tenants, used to be realised by Pannalal and Nathilal as agents of Smt. Kalawati and Smt. Chameli but the said agreement is not binding on the plaintiff. Smt. Kalawati is said to have died in 1925 and Smt. Chameli on April 30, 1944 and the plaintiff claims to have succeeded to the property after Smt. Chameli's death. It has also been stated by the plaintiff that Pannalal and Nathilal and, after their death, Pannalal's sons, Virendra Nath defendant No. 1 and Brijendra Nath defendant No. 2, had been rendering some slipshod accounts of the realisations made by them from the tenants and paying some petty amounts to Smt, Kalawati and Smt. Chameli but since the death of the two daughters the defendants had only been postponing settlement of accounts and, finally, they refused to hand over actual possession of the property in suit to the plaintiff. This state of thing is said to have compelled the plaintiff to institute the suit.
2. The claim of the plaintiff has been contested by both the defendants. Defendant No. 2 has pleaded that the plaintiff is not the son of Smt. Chameli but of the second wife of Ranchhordas whom the latter married after the death of Smt. Chameli which took place in 1926, that Damodardas, who predeceased his father Dal Chand, had given direction to his wife to adopt a son and this direction was confirmed by Dal Chand; and that under the authority to adopt given to Smt. Pushpawati she duly adopted Brijendra Nath defendant No. 2 as a son to her deceased husband. He has also raised pleas of estoppel, acquiescence and limitation. The allegation of the plaintiff regarding Pannalal and Nathi Lai having been in possession as agents has been repudiated and it has been asserted that Brijendra Nath defendant No. 2 has been in possession for over 35 years as owner. In the alternative it has been contended that Dal Chand died as a member of joint Hindu family and the property in suit was joint family property, with the result that after the death of Dal Chand it passed to the other co-parceners by survivorship and the plaintiff has no title to it.
3. Defendant No. 1 has filed a separate written statement which follows the line of defence taken by defendant No. 2. The additional facts stated by him are that the property in suit was thrown into the common stock and has been treated as joint family property by all the coparceners and that under a will Dal Chand bequeathed some moveable property to Smt. Pushpawati and her daughter Premwati besides confirming the authority to adopt given to Smt. Pushpawati by her husband, Damodar Das.
4. The learned Civil Judge framed the following issues on the
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