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2006(3) JLJ 166
S.L. Jain, J.
Keerat Singh and another v. Ramjee and others
First Appeal No. 251 of 2004 : against the judgment and decree of
Additional District Judge, Sohagpur, passed in Civil Suit No. 10-A of
2000;
Decided on 7.3.2006.
Respondent No. 1 filed a suit against the defendants stating that defendant No. 2 is his natural father. He was adopted by one Manak vide registered adoption-deed dated 22.5.1976. He is governed by Mitakshara Banaras School of Hindu Law. His natural father, in addition to him, had one son and daughter, namely, Mahesh and Ramabai. Mahesh died on 8.10.1981.
The plaintiff has pleaded that when his age was 13 years, during his minority, his natural father defendants No.3 Shrikamal executed a sale-deed of his property in favour of defendant No.1 Keeral Singh claiming himself to be his guardian and accepted consideration of Rs. 10,000/-; while the house was in possession of the plaintiff. Similarly on 13.5.1983 itself, defendants No.3 sold 10 acres of land out of land survey No.442 area 13.51 acres owned by the plaintiff for a consideration of Rs. 40,000/- and delivered possession to defendant No. 4. The consideration received by his natural father was not given to him. [Para 2 & 3
Held : Since the property in question belonged to Manak and did not belong to the plaintiff who has not been proved to be the adopted son of Manak, he cannot challenge the sale of the property of Manak on the ground that the sale took place without the permission of the District Judge under section 8 of Hindu Minority and Guardianship Act. (1993)4 SCC 38 and (2002)1 SCC 178 distinguished. [Paras 37 & 36
(2) Transfer of Property Act, 1882 -- S.43 -- transfer made by person having no title -- subsequently he acquires title of the property sold -- transferee can enforce his right. [Para 38
(3) Hindu Adoptions and Maintenance Act, 1956 -- Ss.11(vi) and 6(iv) -- adoption -- must be proved by evidence of giving and taking ceremony. [Para 11
(4) Evidence Act, 1872 -- S.60 -- ceremony of giving and taking not proved by direct evidence though available -- adoption cannot be presumed on basis of hearsay evidence. [Para 12
(5) Evidence Act, 1872 -- S.32(5) -- adoption deed -- necessary recital of giving and taking ceremony -- not mentioned in deed -- provision is of no use to plaintiff. [Para 14
(6) Hindu Adoptions and Maintenance Act, 1956 -- Ss.5(1), 5(2) and Chapter II -- adoption -- not in accordance with Chapter II -- ceremony of giving and taking not proved -- adoption is void -- does not create any right in the adoptive family. [Para 5
(7) Hindu Adoptions and Maintenance Act, 1956 -- Ss. 4 and 11(vi) -- customs and usages in force immediately prior to commencement of Act -- ceased to operate -- ceremony of giving and taking should be proved to have taken place actually -- else adoption is not valid. [Para 16
(8) Hindu Adoptions and Maintenance Act, 1956 -- S. 11(vi) -- ceremony of giving and taking physically besides the registered deed -- persons who were present in ceremony not examined -- adoption becomes doubtful. AIR 1993 AP 336 dissented from. [Para 21
(9) Hindu Adoptions and Maintenance Act, 1956 -- S.16 -- registered deed of adoption -- not signed by person who gave the child -- presumption not available. AIR 1981 Bom. 240, 1979 JLJ 314 and 1989 JLJ 387 relied on. [Paras 24, 25 & 26
(10) Hindu Adoptions and Maintenance Act, 1956 -- S.11(vi) -- ceremony of giving and taking the child -- may be in any form but must be proved -- registered document not containing recitals -- ceremony cannot be presumed. AIR 1961 SC 1378 distinguished. [Para 28
(11) Land Revenue Code, 1959 (M.P.) -- Ss.110 and 114 -- entry of mutation in Land records -- does not confer right of title to the property unless supported by other evidence. (1996)6 SCC 228 and (2004)12 SCC 58 followed. [Para 32
(12) Evidence Act, 1872 -- S.68 -- Succession Act, 1925 -- S.63 -- Will -- document not containing attestation as per provisions -- cannot be regarded as Will -- attestator should speak not only about testator‘s signature, he should also speak that each witness signed in presence of testator. [Para 34 & 35
¼1½ fganw vizkIro;rk vkSj laj{kd vf/kfu;e] 1956 && /kkjk 8 && mica/k && dsoy fof/kd laj{kd dks vizkIro; dh laifÙk mldh vko‘;drk ;k mlds Qk;ns ds fy, vU;laØkfer djus dks l‘kDr fd;k x;k gS && laifÙk oknh ¼vizkIro;½ dh ugha && og ftyk U;k;k/kh‘k dh vuqKk vfHkizkIr ugha fd, tkus ds vk/kkj ij foØ; ij vk{ksi ugha dj ldrkA izR;FkhZ Ø-1 us izfroknhx.k ds fo:) okn ;g dFku djrs gq, Qkby fd;k fd izfroknh Ø-2 mldk uSlfxZd firk gSA fdlh ekud us jftLVªhd`r nÙkd&foys[k fnukad 22-5-1976 }kjk mldk nÙkd xzg.k fd;k FkkA og fganw fof/k dh cukjl ferk{kjk ‘kk[kk }kjk ‘kkflr gSA mlds uSlfxZd firk ds mlds vfrfjDr ,d iq= vkSj ,d iq=h] uker% egs‘k vkSj jkekckbZ gSaA egs‘k dh 8-10-1981 dks e`R;q gks xbZA oknh us vfHkokd~ fd;k fd mldks vizkIro;rk ds nkSjku] tc mldh vk;q 13 o"kZ dh Fkh] mlds uSlfxZd firk izR;FkhZ Ø-3 Jhdey us Lo;a ds mldk laj{kd gksus dk nkok djrs gq, izfroknh Ø-1 dhjrflag ds i{k esa mldh laifÙk dk foØ; &foys[k fu"ikfnr fd;k rFkk :-10]000@& dk izfrQy Lohdkj fd;k] tcfd edku oknh ds dCts esa FkkA blh izdkj 13-5-1983 dks gh izfroknh Ø-3 us oknh ds LokfeRo dh Hkwfe losZ Ø- 442 {ks=Qy 13-51 ,dM+ esa ls 10 ,dM+ Hkwfe :-40]000@& izfrQy ds fy, foØ; dj nh rFkk izfroknh Ø-4 dks dCtk ifjnÙk dj fn;kA mlds uSlfxZd firk }kjk izkIr fd;k x;k izfrQy mls ugha fn;k x;kA ¼iSjk 3 vfHkfu/kkZfjr % D;ksafd iz‘uxr laifÙk ekud dh Fkh] oknh dh ugha] ftldk ekud dk nÙkd iq= gksuk lkfcr ugha fd;k x;k gS] og ekud dh laifÙk dk foØ; bl vk/kkj ij vk{ksfir ugha dj ldrk fd foØ; fganw vizkIro;rk vksj laj{kd vf/kfu;e dh /kkjk 8 ds v/khu ftyk U;k;k/kh‘k dh vuqKk ds fcuk fd;k x;k FkkA 1993¼4½ ,l lh lh 38 rFkk 2002¼1½ ,l lh lh 178 izHksfnrA ¼iSjk 37 ,oa 36 ¼2½ laifÙk varj.k vf/kfu;e] 1882 && /kkjk 43 && varj.k ,sls O;fDr }kjk fd;k x;k ftls dksbZ gd ugha && ckn esa og foØhr laifÙk ij gd vftZr dj ysrk gS && varfjrh viuk vf/kdkj izofrZr dj ldrk gSA ¼iSjk 38 ¼3½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 11
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 60 && nÙkd && nsus vkSj xzg.k djus dk deZ izR;{k lk{; }kjk lkfcr ugha] tcfd og miyC/k && vuqJqr lk{; ds vk/kkj ij nÙkd dh mi/kkj.kk ugha dh tk ldrhA ¼iSjk 14
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 32¼5½ && nÙkd&foys[k && nsus vkSj xzg.k djus ds deZ dk vko‘;d ifjo.kZu && foys[k esa fyf[kr ugha && mica/k oknh ds fy, fu:i;ksxh gSA ¼iSjk 14
¼6½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 5¼1½] 5¼2½ rFkk nwljk v/;k; && nÙkd && nwljs v/;k;; ds vuqlkj ugha && nsus vkSj xzg.k djus dk deZ lkfcr ugha && nÙkd ‘kwU; gS && nÙkd dqVqac esa dksbZ Hkh vf/kdkj l`ftr ugha gksrkA ¼iSjk 15
¼7½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 4 rFkk 11
(vi) && vf/kfu;e vkjaHk gksus ds Bhd iwoZ izo`r :f<+;k¡ vkSj izFkk,¡ && izofrZr ugha jgha && nsus vkSj xzg.k djus dk deZ okLro esa fd;k x;k lkfcr fd;k tkuk pkfg, && vU;Fkk nÙkd fof/kekU; ughaA ¼iSjk 16¼8½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 11
(vi) && jftLVªhd`r foys[k ds vfrfjDr HkkSfrd :i ls nsus vkSj xzg.k djus dk deZ && deZ ds nkSjku mifLFkr O;fDr;ksa dh ijh{kk ugha dh xbZ && nÙkd lafnX/k gks tkrk gSA , vkb vkj 1993 vka/kz izns‘k 336 folEerA ¼iSjk 21 ¼9½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 16 && nÙkd dk jftLVªhd`r foys[k && ml O;fDr }kjk gLrk{kfjr ugha ftlus f‘k‘kq fn;k && mi/kkj.k miyC/k ughaA , vkb vkj 1981 cacbZ 240] 1979 ts ,y ts 314 rFkk 1989 ts ,y ts 387 voyafcrA ¼iSjk 24] 25 ,oa 26
¼10½ fganw nÙkd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && 1956 && /kkjk 11
(vi) && f‘k‘kq nsus vkSj xzg.k djus dk deZ && fdlh Hkh :i esa gks ldrk gS ijarq lkfcr fd;k tkuk vko‘;d gS && jftLVªhd`r nLrkost esa ifjo.kZu ugha && deZ dks mi/kkj.kk ugha dh tk ldrhA , vkb vkj 1961 ,l lh 1378 izHksfnrA ¼iSjk 28 ¼11½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 110 rFkk 114 && Hkw&vfHkys[kksa esa ukekarj.k dh izfof"V && laifÙk dk gd dk vf/kdkj iznÙk ugha djrh tc rd fd vU; lk{; }kjk lefFkZr ugha gksA 1996¼6½ ,l lh lh 223 rFkk 2004¼12½ ,l lh lh 58 vuqlfjrA ¼iSjk 32
¼12½ lk{; vf/kfu;e] 1872 && /kkjk 68 && mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63 && foy && nLrkost esa mica/kksa ds vuqlkj vuqizek.ku ugha && foy ugha ekuk tk ldrk && vuqizek.kd dks olh;rdrkZ ds gLrk{kj ds ckjs esa gh ugha] vfirq ;g Hkh dFku djuk pkfg, fd izR;sd lk{kh us olh;rdrkZ dh mifLFkfr esa gLrk{kj fd,A ¼iSjk 34 ,oa 35
1. Invoking appellate jurisdiction of this Court under section 96 of the Code of Civil Procedure; the appellants have filed this appeal challenging the legality, validity and propriety of the judgment and decree dated 2.4.2004 passed by ADJ, Sohagpur, in CS No. 10-A/2000 decreeing the suit of plaintiff-respondent No.1 for declaring the sale-deeds dated 13.5.1983 executed by respondent No.2 in favour of appellants No.1 and 2 as void.
2. The facts which led to tiling of this appeal in nutshell are that respondent No.1 filed a suit against the defendants stating that defendant No.2 is his natural father. He was adopted by one Manak vide registered adoption-deed dated 22.5.1976. He is governed by Mitakshara Banaras School of Hindu Law. His natural father, in addition to him, had one son and daughter, namely, Mahesh and Ramabai. Mahesh died on 8.10.1981.
3. The plaintiff has pleaded that when his age was 13 years, during his minority, his natural father defendant No.3 Shrikamal executed a sale-deed of his property in favour of defendant No.1 Keerat Singh claiming himself to be his guardian and accepted consideration of Rs.10,000/-; while the house was in possession of the plaintiff. Similarly on 13.5.1983 itself, defendant No.3 sold 10 acres of land out of land survey No.442 area 13.51 acres owned by the plaintiff for a consideration of Rs.40,000/- and delivered possession to defendant No.4. The consideration received by his natural father was not given to him.
4. Plaintiff has averred that after the aforesaid adoption, his natural father defendant Shrikamal had no authority to sell his house and land. Shrikamal did not obtain any permission of District Judge under Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the "Act") for selling the suit property.
5. Defendants No.1 and 4 contested the suit by filing a joint written statement denying that the plaintiff was adopted by Manak. They pleaded that the plaintiff was the only son of Shrikamal therefore, could not have been given in adoption, The adoption deed is not real and is ineffective. It was also the case of the defendants that at the time of execution of sale-deeds, defendant No.3 Shrikamal, his brother. Supyar Singh, his mother Reshamliai and plaintiff Ramji had a joint Hindu family of which Shrikamal was Karta. The suit land was the joint family property. The defendant No.3 sold the suit property as a Karta of the joint family for the legal necessity. It was also averred by defendants No.1 and 4 that accepting Ramji to be the adopted son of Manak, the sale-deed executed by Shrikamal as Karta of the family bind the plaintiff. Defendants No.1 and 4 father averred that documents purporting to be adoption deed at the most may be treated as will. After the death of Manak, Shrikamal being his nephew inherited his property and he was entitled to sell the suit property.
6. Defendants No.2 and 3 did not file any written statement. They were proceeded ex parte.
7. The trial Court framed as many as 12 issues and recorded a finding that plaintiff Ramji is validly adopted son of Manak and the sale-deeds executed by defendant No.3 in favour of defendants No.1 and 4 without the permission of the District Judge are void. The suit property was not the joint family property of Supyar Singh, Shrikamal and Ramji and, therefore, Shrikamal had no right to sell the suit property as Karta of the joint family, As nephew of Manak, Shrikamal had no right to sell the suit property, therefore, sale-deed executed by Shrikamal in favour of defendants No.1 and 4 are void and decreed the plaintiff's suit.
8. It is this judgment and decree of the trial Court which is the cause of grievance of the appellants.
9. I have heard Shri N.S. Kale, learned senior counsel with Shri A. Bhomick for appellants and Shri Divesh Jain counsel for respondents and perused the record.
10. Learned senior counsel appearing for appellants vehemently submitted that clause (iv) of section 6 of the Act provides
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