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High Court Of Madhya Pradesh
P. V. Dixit and S. M. Samvatsar, JJ.
SURAJBAI KALURAM - Appellant
Versus
SADASHIV JUGAL KISHORE - Respondents
First Appeal 17 Of 1954
Decided On : 02/09/1957
ADOPTION - VALIDITY - INAMDAR'S FAMILY - SANCTION OF GOVERNMENT - NECESSITY - RES JUDICATA - COMPETENCY OF COURT - JURISDICTION - VALUE OF SUIT - JOINT PROPERTY - PARTITION.
Fact of the Case:
Plaintiff, claiming to be the adopted son of Jugalkishore, filed a suit for possession of a house and movable property against the defendants, Surajbai and her daughter Gitabai. Surajbai denied the adoption and claimed that the house was an ancestral property of Jugalkishore and Shankarlal, and that she had a will executed by Kasturibai, Jugalkishore's widow, bequeathing the property to her daughter. The trial court decreed the plaintiff's claim, holding that he was the adopted son of Jugalkishore and that the defendants were in possession of seven Chasmas of the house belonging to Jugalkishore.
Finding of the Court:
The court held that the plaintiff was the lawfully adopted son of Jugalkishore, that the decision of the Munsif Hatod in Civil Suit No. 48 of 1940 on the issue of adoption was not conclusive and did not debar the plaintiff from raising it again, and that the three Chasmas of house adjoining the temple which was purchased in the year 1898 was the joint property of both Jugaikishore and Shankarial.
Issues: 1. Whether the plaintiff is the lawfully adopted son of deceased Jugalkishore? 2. Whether the decision in Civil suit No. 48 of 1940 operates as res judicata and debars the plaintiff from contending in this suit that he was the adopted son of deceased Jugalkishore? 3. Whether the three Chasmas of house adjoining the temple which was purchased in the year 1898, vide D-17, was the property of Jugaikishore or was joint property of both Jugaikishore and shankarial?
Ratio Decidendi: 1. The court held that the plaintiff was the lawfully adopted son of Jugalkishore based on the evidence produced by the plaintiff, including oral and documentary evidence, and the recognition of the adoption by the family members, public authorities, and the State. 2. The court held that the decision in Civil suit No. 48 of 1940 was not conclusive and did not debar the plaintiff from raising the issue of adoption again because the Munsif Hatod who decided the suit was not competent to entertain it as it pertained to Inam lands, which were outside the jurisdiction of Civil Courts under Section 99 of the Jagirdar Manual. 3. The court held that the three Chasmas of house adjoining the temple which was purchased in the year 1898 was the joint property of both Jugaikishore and Shankarial based on the sale-deed (Ex. D-17) and the fact that the two brothers had separated long before the purchase.
Final Decision: The appeal was partially allowed. The decree of the trial court was maintained so far as the Temple property was concerned. So far as the remaining three Chasmas acquired, vide D-17, are concerned, the plaintiff's claim was decreed for joint possession. The appellants were directed to pay half the costs incurred by the respondent in the appeal and bear their own.
( 1 ) THIS appeal is filed by the defendants.
( 2 ) THE plaintiff-respondent Sadashiv filed a suit against the defendants Surajbai, now deceased, and her daughter Gitabai, for possession of a house situated at gotampura and some movable property. He alleged in the plaint that he was the adopted son of one Jugalkishore who died in the year 1918 leaving behind besides himself, his widow Kasturibai; that Kasturibai and the plaintiff remained in possession of the property left by the deceased Jugalkishore; that Kasturibai died on 17-9-1947 and that the defendant No. 1 who is the daughter of one Shankarlal, the deceased brother Jugalkishore and defendant No. 2, the daughter of defendant no. 1, taking advantage of the absence of the plaintiff, took unauthorized possession of the property in suit; that on being called upon to restore it, they refused to do so. Hence the plaintiff has filed this suit.
( 3 ) THE defendant No. 2 was a minor on the date of the suit and was represented by a guardian-ad-litem who generally denied the plaintiff's claim. The defendant surajbai filed a detailed written-statement in which she denied the adoption of the plaintiff by Jugalkishore and contended that he was kept with Jugalkishore by his father Narayan, only for the purpose of receiving education and for this reason the plaintiff always described himself as the son of Narayan. She denied that she was in possession of the movable property belonging to Jugalkishore and denied the plaintiff's allegation that the house in dispute belonged to the deceased jugalkishore. She contended that the house was a temple and was ancestral property of deceased Jugalkishore and Shankarlal. The plaintiff had therefore no claim to it.
( 4 ) THE defendant Surajbai further alleged that Kasturibai, the widow of deceased jugalkishore had executed a will and had bequeathed all the property to the defendant No. 2. She also vaguely denied that the plaintiff's claim was within time.
( 5 ) IN the special pleading, the defendant Surajbai contended that Jugalkishore was an Inamdar and that there could be no adoption in the family without the previous permission of the Government. She also alleged that she had filed a suit against the plaintiff in the Court of the Munsif, Hatod, being Civil Suit No. 48 of 1940, in which the issue of adoption was specifically raised and decided against the plaintiff, that this decision operated as res judicata and barred the trial of the plea that plaintiff was the adopted son of deceased Jugalkishore.
( 6 ) THE trial Court decreed the plaintiff's claim. In doing so, it held that the plaintiff was proved to be the adopted son of Jugalkishore; that the claim was neither barred by res judicata nor by the law of limitation. It further held that the defendants were in possession of seven Chasmas of house belonging to jugalkishore and that the plaintiff's claim with respect to the movable property was not proved. As regards the will executed by the deceased Kasturibai, it was held that Kasturibai being a Hindu widow, was not competent to bequeath the property and that the will was therefore inoperative and did not affect the plaintiff's claim. ( 7 ) AGGRIEVED by this decree the defendants have preferred this appeal.
( 8 ) THE main contentions raised in this appeal by Mr. Patel, learned Counsel for the appellants were: (i) that the plaintiff was not proved to be the adopted son of deceased Jugalkishore; and (ii) that in any event, the decision of the Munsif hatod, in Civil Suit No. 48 of 1940 on this issue was conclusive and debarred the plaintiff from raising it again. Mr. Patel also contended that the three Chasmas house attached to the temple was purchased by Jugalkishore and Shankarlal jointly and that in any event, a decree for exclusive possession of the seven chesmas of the house passed by the trial Court could not be maintained.
( 9 ) THE most important issue in this case is Issue No. 1 which is: Whether the plaintiff is the
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