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A.R. Tiwari, J.
Mangilal And Ors.
vs
Bhagirath And Ors.
Decided On : 16 January, 1997
HINDU ADOPTION AND MAINTENANCE ACT, 1956 - SECTION 6 - ADOPTION - VALIDITY - REQUISITES - FINDING OF FACT BY TRIAL COURT - INTERFERENCE BY APPELLATE COURT.
Fact of the Case:
Plaintiff, son of Daya, filed a suit for declaration of his share in the property of Dula, his grandfather. The defendants contested the suit, claiming that Daya had been adopted by Maniram, Dula's brother, and thus had no right to the property. The trial court found that Daya had been adopted and dismissed the suit. The first appellate court reversed the trial court's decision and decreed the suit, holding that Daya had not been adopted.
Finding of the Court:
The High Court held that the first appellate court's finding that Daya had not been adopted was not in accordance with law. The court noted that the trial court had given detailed reasons for its finding of adoption, and that the first appellate court had not properly considered these reasons. The court also noted that the first appellate court had not considered whether the defendants might be entitled to a share in the land at Village Khercha Khedi, which was also part of the dispute.
Issues: 1. Whether the finding of the first appellate court that Daya had not been adopted was in accordance with law. 2. Whether the defendants were entitled to a share in the land at Village Khercha Khedi.
Ratio Decidendi: The High Court held that the first appellate court's finding that Daya had not been adopted was not in accordance with law because the court had not properly considered the reasons given by the trial court for its finding of adoption. The court also held that the first appellate court should have considered whether the defendants were entitled to a share in the land at Village Khercha Khedi.
Final Decision: The High Court allowed the appeal in part, set aside the judgment and decree of the first appellate court, and remanded the case to the first appellate court for a fresh decision.
A.R. Tiwari, J.
1. Three out of seven defendants have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9.5.80 rendered by the Additional Judge to the Court of District Judge, Shajapur in Civil Regular Appeal No. 101-A/78 thereby dislodging the judgment and decree dated 6.4,77 passed by Civil Judge, Class II, Shajapur, Camp Sarangpur and decreeing the suit of the plaintiff i.e. Respondent No. 1.
2. Briefly stated, the facts of the case are that Dunga was the father of Dula and Maniram. Dula had two sons Isariya and Daya. Maniram was issueless. After the death of Dunga, partition took place between Dula and Maniram. They came into a exclusive possession of their respective shares. Respondent No. 1 (plaintiff) is the son of Daya, natural son of Dula and grand-son of Dunga. He filed the suit for declaration of his share in the property of Dula. The respondents contested the suit with specific plea that Daya had gone in adoption to Maniram as his son and as such he had no right, title or interest in the property allotted to Dula on partition. It was thus, pleaded that consequently plaintiff, son of Daya has no right, title or interest to obtain declaration. Daya came in possession of the property of Maniram and after the death of Daya, Bhagirath-respondent No. 1 came in possession. The Trial Court framed material issues No. 5(a) and (b) on the point of adoption and title and answered both the issues against respondent No. l. the Trial Court, thus, dismissed the suit. The respondent No. 1 then filed the aforesaid first appeal which was allowed with declaration that respondent No. 1 has Vi share as Bhumiswami in Survey No. 2065 area 11 Bighas and two Biswas situated in Village Lima Chokan, Tahsil Sarangpur. Aggrieved by this judgment the three defendants have filed this Second Appeal.
3. This appeal was admitted for final hearing on 19.9.1980 on the under noted substantial question of law :
"Whether in the facts and circumstances of the case, the findings of two Courts below regarding plaintiffs' entitlement to half share in the suit land is without any evidence and is not in accordance with law ?"
The application for stay against mutation was, however, rejected on 29.7.81.
4. I have heard Mr. Ashok Kutumbale, learned Counsel for the appellants, Mr. Sandeep Shukia, learned Counsel for respondent No. 1 and Mrs. Vinita Phaye, learned Panel Lawyer for Respondent No. 6. None appeared for Respondents No.2 to 5.
5. The objects of adoption are two-fold-
(1) the first was religious, to secure spiritual benefit to the adopter and his ancestors, by having a son for the purpose of offering funeral cakes and libations of water to the means of the adopter and his ancestors;
(2) the second was secular, to secure an heir and perpetuate the adopter's name.
The requisites of a valid adoption are provided by Section 6 of the Hindu Adoptions and Maintenance Act, 1956. On consideration of the evidential material, the Trial Court found the adoption as proved and held in consequence that Daya had no right, title or interest in the property of Dula.
6. It is admitted before me by the Counsel for the respondent No. 1 (plaintiff) that if the findings on Issue No. 5(a) and (b) are restored, then, the unevitable consequence would be dismissal of the suit and restoration of the judgment and decree passed by the Trial Court.
7. The trial Judge cannot be treated as infallible but before the finding of fact recorded by him can be set aside, it must be established that the finding is unsound, perverse or has been based on grounds which cannot be termed as satisfactory. In AIR 1974 Supreme Court 405, Baburao Bagaji and Ors. v. Govind and Ors., it is held as under :
"Before a finding of fact by a Trial Court can be set aside it must be established that the trial Judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccu
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