Badami vs Mahadev

Dr. Vineet Kothari, J.—The appellant/plaintiff, Smt. Badami W/o. late Sh. Ramlal Jat, through her legal heir Nathulal S/o. Badrilal, who lost the legal battle before the two courts below has preferred this second appeal under Section 100 of Code of Civil Procedure, 1908, impugning the judgment and decree of the first appellate court i.e. Addl. District Judge No. 1, Bhilwara dated 21st November, 2006, dismissing appellant/plaintiffs appeal (Civil Appeal No. 65/2004- Badami Vs. Mahadev), and upholding the judgment and decree dated 16th September, 2004 passed by learned trial court i.e. Civil Judge (Sr. Division), Gangapur, District: Bhilwara, whereby the suit filed by the appellant/plaintiff for seeking cancellation of Adoption-Deed dated 04.04.1994 (registered on 05.04.1994), was rejected.

Briefly stated, the facts of the case are that the appellant-Mst. Badami, filed a suit seeking cancellation of registered adoption deed executed by herself in favour of respondent/defendant, Mahadev. According the plaintiff, her husband, late Sh. Ramlal Jat, expired 40 years back. The plaintiff owns a residential house and agricultural land in village Sargaon and Laxmipura and enjoying the possession over the same. The defendant is the son of her husband''s brother, namely, Dayaram. Looking to old age of plaintiff, she allowed the defendant to cultivate the land, who in turn assured her to make (Permission/authorization letter to cultivate the agricultural land) in writing for cultivation. The defendant also assured that the agricultural land will be given on "Kasht" to other persons and the plaintiff will be given her share in the crops. The plaintiff being an illiterate lady could not understand the cleverness of the defendant and gave her consent for . On 04.04.1994 while taking the advantage of old age and illiteracy, the defendant got executed an adoption deed and get it registered at Gangapur tehsil on 05.04.1994 while making it to reveal to the plaintiff the same is . Thereafter, after one year the defendant filed a suit for declaration of "Khatedari" and injunction in the court of Assistant Collector, Gangapur and upon filing such suit, the plaintiff came to know about execution of such a forged adoption-deed and she filed a complaint on 05.08.1995 before the Judicial Magistrate, Gangapur, which was sent to for investigation, however, she had no knowledge about the investigation being carried out in the same. According to plaintiff, the adoption deed has been executed while keeping the plaintiff in dark and the rituals of adoption were also never performed for such alleged adoption. Thus by filing the present suit, the plaintiff prayed for cancellation of the said registered adoption deed dated 05.04.1994.

Upon receipt of the summons, the defendant/respondent, Mahadev filed a written statement while refuting the averments made in the plaint. The defendant in the written statement averred that he and plaintiff both are in possession of the suit property of late Sh. Ramlal Jat. The defendant, Mahadev, stated that he was taken in adoption by Mst. Badami herself consciously and no forgery was committed by him. The plaintiff on her free will and volition had adopted him on 04.04.1994 and the adoption deed was registered on 05.04.1994. Upon the death of Sh. Ramlal Jat (husband of the plaintiff) the last ceremonies were performed by the defendant, Mahadev only, as per custom prevailing in their community.

The learned trial court as per pleadings of the parties proceeded to frame three issues including relief, which are quoted herein below:-

Whether the plaintiff is entitled to seek cancellation of the alleged adoption deed which was written on 04.04.1994, which was registered on 05.04.1994 in the office of Sub-Registrar, Sahada?

Whether the defendant is the adopted son of the plaintiff?

Relief?

During the pendency of the suit, the original plaintiff expired issueless and thereafter her brother, namely, Nathulal S/o. Badrilal Jat, contested the suit. The learned trial court after hearing both the parties proceeded to dismiss the suit filed by the plaintiff, Badami, while deciding all the issues in favour of defendant/respondent, Mahadev, and against the plaintiff/appellant vide judgment dated 16.09.2004.

The first appeal filed by the legal heir of plaintiff, Badami, also came to be dismissed by the learned lower appellate court vide judgment and decree dated 21.11.2006 in the following manner:-

Mr. Vinay Jain, learned counsel for the appellant/plaintiff argued that the learned trial court only framed three issues, which according to him, were not as per pleadings of the parties, which resulted in manifest error of jurisdiction prejudicing the interest of the appellant/plaintiff. He further submitted that when husband of the original plaintiff expired, the defendant was 2-4 years of age and after the death of plaintiff''s husband, no customs or rituals were performed adopting the defendant. The defendant while taking advantage of the plaintiff''s illiteracy, got executed the adoption deed while portraying the same as to the plaintiff and keeping the plaintiff in dark. He, therefore, prayed that both the courts below have erred in dismissing the plaintiff''s suit.

On the other hand, Mr. R.K. Soni, learned counsel for the respondent/defendant urged that the plaintiff had herself executed the adoption deed in favour of defendant in good mental state and no fraud was committed by the defendant. The said adoption deed was witnessed by the natural father of the defendant, namely, Dayaram, about which the plaintiff had pleaded that she even does not know as to who has witnessed the said adoption deed. He further submitted that the PW.4, namely, Nathulal (who is brother of the plaintiff and now contesting the suit being the legal heir of plaintiff) in his evidence has stated that he is unable to say as to wore the "Pagdi" of late Sh. Ramlal Jat. He further argued that PW.4, Nathulal, in whose favour the plaintiff said to have executed a Will and thus he being the interested witnesses, his evidence cannot be relied upon.

Having heard the learned counsel for the parties, and upon perusal of the reasons assigned in the judgments and decree of both the courts below, this Court is satisfied that no substantial question of law arises in the present second appeal. The suit filed by the appellant/plaintiff for cancellation of registered adoption dated (Exhibit-6) has been rightly rejected after considering the evidence led by the respective parties, which calls for no interference in the present second appeal filed by the appellant/plaintiff and the registered adoption deed has been rightly upheld by the court as below

Consequently, the present second appeal filed by the appellant/plaintiff, Badami, now represented by her legal heir Nathulal (real brother of the plaintiff) seeking to assail the concurrent judgment and decree of the courts below, is found to be devoid of any merit, and the same is hereby dismissed. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith.