Jhabarmal vs Hardeva Ram and Others

Mohammad Rafiq, J.—These two appeals arise out of same suit which was filed by plaintiff-respondent Hardeva Ram for partition and perpetual injunction against defendant-appellant. Learned Additional District Judge, Sikar, decreed the suit for partition and directed preparation of decree for partition. Appeal No. 69/1987 has been preferred against preliminary decree whereas Appeal No. 70/1988 has been filed against final decree for partition. Plaintiff Hardevaram filed aforementioned suit on 21.09.1977, inter-alia, with the pleadings that his father Lakharam had three sons, namely, Jeevanram, Surajmal and plaintiff Hardevaram. Defendant no. 1 Jhabarmal, defendant no. 4 Lalchand and defendant no. 5 Sitaram are sons of plaintiff Hardevaram. After death of plaintiff''s father Lakharam, all the three sons lived jointly and Jeevanram, being the eldest son of Lakharam, was ''karta'' of the joint family. Plaintiff Hardevaram and defendant no. 3 Surajmal went to Mumbai to earn their livelihood, but their family stayed back in their native in joint Hindu family. Entire properties left by their father Lakharam, were jointly owned by all of them. The first property was residential house in Plot No. 218 situated opposite Collectorate at Sikar, on national highway no. 11, second property was residential house situated at village Sabalpura and third property was agriculture land in village Sabalpura bearing khasra no. 258 measuring 15 bigha 6 biswa, and khasra no. 399 measuring 1 bigha 9 biswa and khasra no. 504 measuring 9 bigha of land. The plaintiff used to send all his earnings to his brother Jeevanram at Sikar. Jeevanram died on 28.12.1975. He was issueless. His widow had died during his lifetime. Thus Hardevaram and Surajmal were the co-sharers in all the above-mentioned properties. However, defendant no. 1 Jhabarmal, illegally claimed himself as adopted son of Jeevanram and started receiving rent of the shops in the property opposite Collectorate at Sikar from defendants no. 9 to 14, who were tenants therein. Surajmal, relying on a sale-deed executed by Jeevanram in his favour on 03.09.1973, started claiming himself as the absolute owner of the property at Sikar. Jeevanram had no right to sell the property of the joint family in this way. Plaintiff Hardeva Ram came to know about the sale-deed dated 03.09.1973, in May 1977. It was prayed that all these properties should be declared joint family properties and the said sale-deed be declared void. Defendant no. 1 Jhabarmal, taking advantage of fact that he is educated, was trying to get the agriculture land mutated in his name and also by depositing land and building tax with the Municipality, Sikar, he is trying to get the properties of the joint family, recorded in his own name. Suit for injunction and partition was filed on that basis. The plaintiff and the defendant be declared entitled to get half of the property each.

Defendant-appellant Jhabarmal filed his written statement and contended that entire properties were partitioned even during lifetime of Lakharam. Jeevanram, Surajmal and Hardevaram were residing separately. Jeevanram stayed with defendant Jhabarmal in the house at Sikar since 1955. Jeevanram took defendant Jhabarmal in adoption on 28.03.1950 and since then Jhabarmal stayed with him till his death. The house at Sikar and the agriculture land of khasra no. 504 measuring 9 bigha at Sabalpura were self-acquired property of Jeevanram, and after his death, defendant Jhabarmal is in occupation of the same as the owner, being his adopted son. As far as residential house at Sabalpura is concerned, it was divided into three parts amongst three brothers during lifetime of Lakharam. However, the agriculture land of Khasra no. 258 and 399 continued to be the joint properties in which he too has 1/3rd share.

Defendant Surajmal filed separate written statement pleading that plaintiff Hardevaram and deceased Jeevanram separated from his father Lakharam in Samvat 1997. Lakharam stayed with defendant Surajmal till he was alive. The house at Sabalpura and agriculture land were equally divided in the plaintiff Hardevaram and Jeevanram by Lakharam and remaining 1/3rd was in possession of Surajmal. The properties were self-acquired by Jeevanram. Jeevanram by sale-deed dated 03.09.1977 had sold part of it to defendant Surajmal. Plaintiff Hardevaram and Surajmal got half share each in remaining property at Sikar. Jeevanram never took Defendant no. 1 Jhabarmal in adoption. The suit is liable to be dismissed.

Learned trial court on the basis of pleadings of the parties, framed following issues:-

Whether the pedigree mentioned in para 1 of the plaint is correct and if yes, then whether the disputed property belongs to undivided joint family and Jeevanram was its ''karta'' during his lifetime?

Whether the house mentioned in sub-para (ka) of para 3 of the plaint was purchased and constructed by the plaintiff from his own savings and if yes, then what is its effect?

Whether the plaintiff has half share in the entire disputed property and if yes, then whether the plaintiff is entitled to get permanent injunction and partition of the disputed property by meets and bounds?

Whether Jeevanram lawfully took defendant no. 1 in adoption on ''Chaitra Sudi Navmi Samvat 2007'' and performed give and take ceremony of adoption, and if yes, then what is its effect?

Whether the plaintiff has paid insufficient court fee?

Whether the suit is time barred?

Whether late Jeevanram lawfully adopted defendant Sitaram and performed give and take ceremony of adoption, and if yes, what is its effect on the suit?

Whether Defendant Lalchand has share in the property of Jeevanram as described in para 7 of the written-statement, and if yes, how much share he has?

Whether defendants no. 9 to 14 are not necessary parties to the suit?

Relief?

Plaintiff produced as many as 11 witnesses and got number of documents exhibited as against which defendant Jhabarmal also produced 11 witnesses. Defendant no. 3 Surajmal produced himself as DW3/12 and examined Chandraram as DW3/13 and Kurdaram as DW3/14. Defendant no. 4 Lalchand and defendant no. 5 Sitaram got themselves examined.

Defendant Surajmal got 32 documents exhibited as Exhibit A-1 to A-32.

Learned trial court decided issue no. 1 as to the pedigree of the family in favour of the plaintiff. Issue no. 2 whether the house mentioned in sub-para (ka) of para 3 of the plaint was purchased and constructed by the plaintiff from his own savings, was decided against the plaintiff and in favour of the defendant. Issue no. 3 whether the plaintiff has half share in the entire disputed property and if yes then whether the plaintiff is entitled to get permanent injunction and partition of the disputed property by meets and bounds, was decided partly against the plaintiff to the extent of the property covered by sale-deed dated 03.09.1973 and for remaining properties in favour of the plaintiff. Issue no. 4 whether Jeevanram lawfully took defendant no. 1 in adoption on ''Chaitra Sudi Navmi Samvat 2007'' and performed give and take ceremony of adoption, was decided against defendant no. 1 in the terms that he failed to prove his adoption by cogent evidence. Issue no. 7 whether late Jeevanram lawfully adopted defendant Sitaram and performed the give and take ceremony of adoption, was proved against that defendant. Other issues were formal in nature. The learned trial court on that basis decreed the suit for partition and directed that preliminary decree be prepared for partition with respect to property other than the properties mentioned in para 3(c) and 3(e) of the plaint situated at village Sabalpura, and 3(a) to the extent it was sold to defendant no. 3 Surajmal by sale-deed dated 09.03.1973, and remaining property be divided into half between the plaintiff Hardevaram and Defendant no. 3 Surajmal.

Shri S.C. Gupta, learned counsel for the appellant, has argued that learned trial court has erred in law in not properly appreciating the evidence inasmuch it has recorded erroneous and perverse findings. Learned trial court has committed serious error in deciding issue no. 4 in favour of defendant-appellant Jhabarmal. It erred in holding that the defendant-appellant failed to prove his adoption by Jeevanram, by cogent evidence. The fact is that two witnesses of adoption Ghisaram and Boduram were dead. Mother of the defendant is alive and plaintiff should have produced her in the witness box as she is under his control. Since he failed to produce her, an adverse inference should have been drawn against the plaintiff, who did not produce the best evidence regarding adoption. Testimony of Mahavir Prasad, the parent, who performed all the ceremonies of adoption, has been wrongly rejected by the trial court on the ground that 1950 is mentioned as the year of his birth in his pass-port (Exhibit-83) and therefore he could not have performed the ceremony of adoption in the year 1950. Learned trial court committed further error in rejecting the statement of said Shri Mahavir Prasad DW-2 on the basis of entry of his name in voter-list, Exhibit-180. It is apparent from the voter-list that age of Mahavir Prasad was 29 years, whereas age of his wife Smt. Geeta Devi has been mentioned to be 35 years, his eldest son Liladhar has been shown to be 27 years and his another son Vidhyadhar has been shown to be 26 years, which cannot be said to be correct. The learned trial court therefore has erred in law in not accepting his statement that he was born in 1930. The learned trial court has committed serious error of law in not appreciating the evidence in true perspective. Adoption of the appellant by Jeevanram is fully proved by such evidence. Learned trial court ought not to have drawn adverse inference against the appellant for not producing his horoscope. In fact, no request was made by the plaintiff for summoning the horoscope when statement of defendants were recorded. It was argued that witnesses of adoption were either dead or under the control of the plaintiff. The adoption could therefore be proved only by attending circumstances and conduct of the parties. The appellant has been shown as son of Jeevanram during his life time in the application (Exhibit A-10) dated 23.05.1965 submitted for obtaining loan by mortgaging their agricultural lands to the Cooperative Bank. The pedigree (Exhibit A-11) was also produced. It was proved by this document that the appellant was son of Jeevanram. Plaintiff himself admitted that defendant-appellant was son of Jeevanram. Plaintiff Hardevaram and defendant Surajmal are bound by their own admissions.

Shri S.C. Gupta, learned counsel submitted that the application for loan was not submitted by Jeevanram alone but all three brothers jointly. In such circumstances, the argument that the appellant was shown as son of Jeevanram only for obtaining higher amount as loan, is liable to be rejected. Plaintiff in his cross-examination admitted that wife of Jeevanram died in the year 1954-55 and the account of her ''mosar'' (death feast) is maintained in ''bahi'' (Exhibits A-1 and A-2). The plaintiff has given evasive reply to all the questions put to him in the cross-examination. He expressed his ignorance about Pt. Sitaram Radhey Shyam of Haridwar. They were ''pandaaj'' of their family and they maintain ''bahi'' in regular course. The appellant was shown as adopted son of Jeevanram. It was argued that merely because the father''s name of defendant-appellant was shown as Hardevaram, does not conclusively prove that he was adopted by Jeevanram. The name of his biological father, therefore, continued to be shown in all his academic record as also in service record. It cannot be presumed thereby that the defendant-appellant was not adopted by late Shri Jeevanram.

The defendant-appellant produced ration card (Exhibit-5), wherein appellant was shown as son of Jeevanram. This was prepared at the instance of Jeevanram himself. In the voter-list of Bhairupura of 1964 and 1974 and voter list of Sikar town of the year 1971, which were produced, the appellant is shown as the son of Jeevanram. In the voter-list of Sabalpura, the father of appellant was shown as Hardevaram. This entry continued without any change and as such on the basis of voter list of Sabalpura, it cannot be said that appellant was not adopted by Jeevanram. Had the appellant not been adopted by Jeevanram, he would not have been shown as his son in the voter list as well as ration card, as son of Jeevanram. Even in the application submitted by Jeevanram for becoming shareholder of Sikar Prathmik Sahakari Bhoomi Bhandhak Bank Limited, Sikar, the appellant has been shown as son of Jeevanram. At serial no. 389, name of Jeevanram has been mentioned and in the column of nominee, defendant-appellant Jhabarmal has been shown as son of Jeevanram. In the application for taking loan under the Rajasthan Swarankar Rehabilitation (Loan) Act, 1964, defendant-appellant Jhabarmal has been shown as son of Jeevanram. This application was attested by plaintiff Hardevaram. Plaintiff himself submitted an application for taking loan under the said Act. All these facts proved that Defendant-appellant was adopted by Jeevanram on 25.03.1950.

Plaintiff-respondent failed to prove that the properties belonged to joint Hindu family.

Shri S.C. Gupta, learned counsel for appellant, has argued that adoption of the appellant has been proved by cogent and reliable evidence. There is evidence on record which clearly proves that the defendant-appellant was throughout being treated as adopted son of Jeevanram. Learned trial court erred in law in not accepting him as his adopted son. In support of his arguments learned counsel relied on the judgment of the Madhya Pradesh High Court in Smt. Chandrani Bai Vs. Pradeep Kumar, argue that mere absence of registered document is not sufficient to reject adoption.

Per contra, Shri Akhil Simlote, learned counsel for the plaintiff-respondent, has supported the evidence recorded by the learned trial court and prayed that the appeal be dismissed. It is argued that adoption has not been proved by the required standard of proof under the provisions of Section 10 of the Hindu Adoptions & Maintenance Act, 1956, wherein one of the essential condition is of give and take. When the father of the defendant-appellant himself has filed the present suit against him and has denied having given the appellant in adoption to Jeevanram and mother has not appeared, the learned trial court was fully justified in rejecting the claim of the defendant-appellant of the alleged adoption. In support of his arguments, learned counsel cited judgment of the Bombay High Court in Nemichand Shantilal Patni Vs. Basantabai, to argue that when the conditions enumerated under Sections 10 and 11 of the Act of 1956 are not fulfilled, the adoption cannot be held to be a valid one.

I have given my anxious consideration to the rival submissions and perused the material on record.

The defendant-appellant did not produce any witness of alleged adoption except Mahavir Prasad (DW-2). There arises a serious doubt about the fact whether he could have been a witness to the so-called adoption. The defendant-appellant claimed that adoption ceremony took place on 25.03.1050. Copy of the passport (Exhibit-83) of Mahavir Prasad has been produced, which also contains his photograph. Therein, the year of his birth is recorded as 1950. Therefore, he could not be a witness to the adoption ceremony. His version is that his year of birth was 1930 but inadvertently it came to be mentioned as 1950 in the pass-port. It does not inspire confidence because he has not given any explanation as to what steps did he take to get the aforesaid entry corrected. In the cross-examination, he has admitted the existence of his ''janma patri'' but he has not produced any such document. In the voter-list (Exhibit-180), prepared in the year 1971, also his age is mentioned as 29 years, which approximate to the year of his birth shown in the pass-port. Contention that the voter-list also carries inaccuracies about the age of his wife and his two sons, therefore, to say that the age was inaccurate only in respect of this witness Mahavir Prasad and not for others, is again a question of fact, which could be proved by other evidence, which has not been produced. The defendant-appellant even though asserted that his father Hardevaram and mother were witness to the adoption but father Hardevaram himself has filed the present suit against him. His mother has not appeared in the witness-box. Unless ceremony of give and take is proved by the evidence of required degree, adoption cannot be taken to have been proved as per Sections 10 and 11 of the Act of 1956. The statement of this witness therefore does not remain reliable. The other witnesses to the adoption, as per assertion of the defendant-appellant, namely, Ghisaram, Boduram and Murlidhar, have not been produced by the defendant-appellant. Defendant no. 3 Surajmal, brother of Jeevanram, in his evidence as DW-12, has categorically stated that defendant-appellant Jhabarmal was never taken in adoption by Jeevanram nor was he given in adoption. The pedigree (Exhibit A-10) and application for obtaining loan (Exhibit A-11), wherein the defendant-appellant was shown as the son of Jeevanram, were in fact the applications submitted to the bank for obtaining loan. If family members were more, loan amount would also be higher. Even if Jeevanram, when selling his part of the property to Surajmal, has stipulated in the sale-deed dated 03.09.1973 executed in favour of Surajmal that he and his son would have no objection, that by itself does not prove the adoption. These are normal expressions used in the sale-deeds prepared by the deed writers. Besides, in the high-school examination of the year 1957, father''s name of defendant-appellant Jhabarmal has been mentioned as Hardevaram. Thereafter the appellant has passed out B.A. and B.Ed. courses and thereafter joined the government service. Everywhere his father''s name is shown as Hardevaram. The demand-note (Exhibit-8) of house tax by the Nagar Parishad, Sikar, dated 11.10.1976 also indicates defendant-appellant Jhabarmal as son of Hardevaram. In his service book also his father''s name has been shown as Hardevaram. Defendant-appellant Jhabarmal submitted option form for the revised pay scale dated 07.06.1974 (Exhibit PW-10/4A), which was filled in by defendant-appellant Jhabarmal himself. Therein he has indicated his father''s name as Hardevaram. The said form was filled by him in his own handwriting. Therefore, the issue of adoption has rightly been decided against the defendant-appellant Jhabarmal and in favour of the plaintiff-respondent.

Coming now to the documents Exhibit-A10 and Exhibit-A11, which have been relied on, by the defendant-appellant, these are the documents in which the appellant has been shown as son of Jeevanram. Defendant no. 3 Surajmal has stated that these documents were purposely prepared for obtaining loan from the cooperative bank, which was given to number of families, therefore, sons of Hardevaram were also shown as sons of other brothers therein. It is evident from document Exhibit A-10 that Lalchand, who is otherwise son of plaintiff Hardevaram, was also shown as son of defendant no. 3 Surajmal. The certificate issued by Gram Panchayat (Exhibit A-11), showing that appellant Jhabarmal was adopted son of Jeevanram, would have no sanctity, because Gram Panchayat has no such authority to certify one person as the adopted son of another. Driving license (Exhibit A-12) dated 12.01.1976 has been prepared at the instance of defendant-appellant Jhabarmal himself. Exhibits 2, 3 and 4 are applications submitted by defendant-appellant Jhabarmal himself under Swarankar Rehabilitation (Loan) Act, 1964 for obtaining loan wherein he has described himself as son of Hardevaram. Exhibit-5 is the ration card of Hardevaram at village Sabalpura, wherein defendant-appellant Jhabarmal has been shown as his son, which has been produced to counter the ration card, whereas another ration card has been produced by defendant-appellant Jhabarmal (Exhibit A-8) showing himself as son of Jeevanram. Documents Exhibit-6 and Exhibit-7 are respectively voter lists of 1971 and 1975, wherein name of defendant-appellant Jhabarmal has been entered respectively at serial no. 31 and 142, in each of which his father''s name has been shown as Hardevaram.

Section 10 of the Act of 1956 prescribes four conditions for valid adoption. Section 6 of the Act of 1956 prescribes that no adoption shall be valid unless (i) the person adopting has the capacity, and also the right, to take in adoption, (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and, (iv) the adoption is made in compliance with the other conditions mentioned in Chapter II of the Act of 1956. Prerequisite condition of a valid adoption is therefore ''to give and to take'' both, which have not been proved. Section 9 of the Act of 1956, inter-alia, provides that no person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. Sub-section (2) of Section 9, however, provides that subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Vice-versa, mother may, in those conditions, give the child in adoption. In the present case, mother has not been produced to prove the adoption whereas the father not only has denied having given the plaintiff in adoption, rather, it was he who come forward to file the present suit. In the circumstances, the ingredients of the valid adoption have been proved in the present case.

Admittedly, in the present case, the adoption was not registered and therefore it has to be proved by cogent and reliable evidence. The appellant asserted that apart from Mahavir Prasad (DW-2), who performed the ceremony of adoption, Ghisaram, Boduram and Murlidhar, his father Hardevaram and his mother were present. Since Hardevaram is concerned, he has denied that he had given appellant in adoption and his mother has not been produced in evidence. Ghisaram, Boduram and Murlidhar have not been produced in evidence. Apart from his father, Surajmal, uncle of the appellant and brother of Jeevanram, has also appeared as DW-12. He has also categorically stated that appellant Jhabarmal was neither given in adoption by his natural father Hardevaram nor was taken in adoption by Jeevanram.

Issue with regard to properties at Sikar and part thereof which was sold by Jeevanram by sale-deed dated 03.09.1973 during his lifetime to Surajmal has also been decided, to the extent of that property, against the plaintiff and for remaining properties in his favour. Learned trial court has rightly held that that property was self-acquired property of Jeevanram and therefore he could have sold it. The property was shown as A to D in the map Exhibit-1 enclosed with the plaint. With regard to the remaining property situate at Sabalpura and the properties other than those sold by sale-deed dated 03.09.1973 at Sikar, were held liable to be partitioned by half each between plaintiff and Surajmal. It was therefore rightly held that plaintiff Hardevaram would be entitled to receive half of the properties.

Defendant no. 5 Sitaram has also claimed to be adopted son of Jeevanram. Issue no. 7 was framed on the basis of claim by defendant no. 5 Sitaram that it was he who was adopted by Jeevanram during his lifetime. But Sitaram also failed to prove that issue, therefore, that issue was decided against him.

The findings recorded by the learned trial court on any of the issues, therefore, cannot be said to suffer from any illegality or infirmity. In the opinion of this court, the findings have been correctly recorded because the defendant-appellant has miserably failed to prove his adoption. Both the appeals, being devoid of merit, are hereby dismissed.