Kanhaiya Lal vs Shanti Lal and Others

Dr. Vineet Kothari, J.—The plaintiff/appellant-Kanhaiya Lal alias Krishna Chandra S/o Shri Nand Lal Ji Ameta and adopted son of Shri Bhawani Shanker Ameta (elder brother of his natural father, Nand Lal Ameta) has filed the present appeal under Section 96 of the Civil Procedure Code, aggrieved by the rejection of his suit for partition and for declaration of the sale deed dated 12.09.1989 executed by his adoptive mother Smt. Bhoori Bai in favour of defendants-Shanti Lal s/o Shri Kanhaiya Lal Ji Singhavi and Sunil Kumar s/o Shri Vijay Singh Singhavi, Udaipur.

Brief facts leading to filing of the present suit, namely, Civil Suit No. 240/04 - Kanhaiya Lal alias Krishna Chandra v. Smt. Bhoori Bai, which came to be dismissed by the learned trial court of Additional District Judge (Fast Track) No. 2, Udaipur on 17.10.2006, as noticed by the learned trial court itself, are quoted below for ready reference:--

The reasons assigned by the learned trial court for finding that the adoption of plaintiff-Kanhaiya Lal alias Krishna Chandra was not proved, and therefore, he was not entitled to seek the declaration of the sale deed executed by Smt. Bhoori Bai in favour of Shanti Lal and Sunil Kumar, as non est against his rights in the said ancestral property, a residential house situated at Udaipur, are also quoted below for ready reference:--

Learned counsel for the plaintiff-appellant, Mr. Manish Shishodia urged that there was overwhelming evidence in support of the adoption of the plaintiff-Kanhaiya Lal alias Krishna Chandra by the elder brother of his natural father, Nand Lal Ameta, namely, Shri Bhawani Shanker way back on 16.02.1956 on the day of ''Basant Panchmi; and his own natural mother, PW-9 Smt. Pushpa Devi Sharma, who was working as a Teacher in the Government School herself admitted giving of plaintiff-Kanhaiya Lal alias Krishna Chandra in adoption to Shri Bhawani Shanker and several other independent witnesses had supported the said adoption, which took place about forty eight years prior to filing of the present suit in the year 2004. Yet the learned trial court finding so called alleged inconsistencies in the statement, which though were of insignificant nature, held that the adoption was not well proved, and therefore, the plaintiff could not seek a declaration of the sale of the suit property made by the adoptive mother, Smt. Bhoori Bai, for which she was not authorized to sell the entire ancestral property on her own in favour of the defendants-Shanti Lal and Sunil Kumar.

Mr. Manish Shishodia urged that qua his rights in the said ancestral property, being the adopted son of Shri Bhawani Shanker, the sale deserves to be declared null and void, and Smt. Bhoori Bai could transfer only her own share in the suit property. He also submitted that the sale deed in question executed on 12.09.1989 was not even brought on record by the other defendants-purchasers and the defence evidence led by the defendants did not disprove the factum of adoption. Mr. Manish Shishodia also submitted that Smt. Bhoori Bai herself died on 08.11.1991, and therefore, her name was deleted from the array of defendants by the learned trial court and the purchasers of the said suit property, who entered the scene only under the said sale deed in the year 1989 could not disprove the factum of adoption.

Mr. Manish Shishodia also contended that the impugned sale deed executed on 12.09.1989 was also hit by Section 52 of the Transfer of Property Act and the principles of lis pendens since in the present suit itself against rejection of temporary injunction by the trial court, the plaintiff had filed S.B. Civil Misc. Appeal No. 199/89 - Kanhaiya Lal @ Krishna Chandra v. Smt. Bhuri Bai before this Court, in which on 01.09.1989, a learned Single Judge of this Court passed an interim order restraining the respondents Smt. Bhoori Bai from transferring or alienating any right, title or interest or possession in favour of any third party and to pay annuity of Rs. 500/- per month to the mother, Smt. Bhoori Bai, and therefore, the sale made 12 days thereafter on 12.09.1989, despite the fact of passing of the stay order passed by the High Court was published in the newspapers having circulation in local area by the plaintiff-appellant on 07.09.1989, therefore, the sale made on 12.09.1989 was contrary to the stay order granted by this Court, and for this reason also, the sale in question deserves to be declared ineffective qua the rights of the plaintiff-appellant.

He relied upon the following judgments in support of his contentions:--

"1. Lakshman Singh Kothari Vs. Smt. Rup Kanwar,

Dolgobinda Paricha Vs. Nimai Charan Misra and Others,

Mst. Asa Bai Vs. Prabhulal and Others,

On the other hand, Mr. R.K. Thanvi, Senior Advocate assisted by Mr. Sanjay Nahar appearing for the respondents-defendants/purchasers of the suit property submitted that the findings recorded by the learned trial court about the plaintiff having failed to prove his adoption by Shri Bhawani Shanker are cogent and justified findings and do not deserve to be disturbed in the present first appeal. Mr. R.K. Thanvi submitted that even after the so called adoption in the year 1956, in the school record as well as in the service record of the plaintiff, the name of his father was shown as Nand Lal Ameta only and not the adoptive father, Shri Bhawani Shanker and this clearly shows that the theory of adoption was taken by the plaintiff only to question the sale of the residential house by Smt. Bhoori Bai, who inherited the suit property from her husband, Shri Bhawani Shanker upon his death and since they had no other issue, the sale made by Smt. Bhoori Bai in favour of Shanti Lal and Sunil Kumar was perfectly valid and justified and could not be questioned by the plaintiff. Mr. R.K. Thanvi also raised the question of court fees not paid by the plaintiff for seeking cancellation of the sale deed on the basis of market value of the suit property in question. Mr. R.K. Thanvi also relied upon and read before this Court the defence evidence, including the statements of the tenants in the said suit property, who deposed before the court that no such adoption of the plaintiff took place.

Mr. R.K. Thanvi, also relied upon a large number of judgments in support of his contentions, but a detailed discussion of which is not found necessary in view of the following.

I have heard the learned counsels for the parties and perused the record as well as the judgments cited at the Bar.

In the considered opinion of this Court, the present appeal of the plaintiff deserves to be allowed and the impugned order of the learned trial court dated 17.10.2006 deserves to be set aside. The reasons are as follows.

Almost all the witnesses, who were examined on behalf of the plaintiff have categorically stated the factum of adoption, which took place on 16.02.1956 on the day of ''Basant Panchmi''. Though a long period of forty years had lapsed, but their statements were recorded by the learned trial court in the year 1998, in which they vividly remembered their presence on the said occasion and the natural parents of the plaintiff themselves giving the said plaintiff, who was 4-5 years of age at that time in adoption and putting him in the lap of the elder brother of Nand Lal Ameta, namely, Shri Bhawani Shanker, who was otherwise issueless with his wife Smt. Bhoori Bai. Above all, PW-9 Smt. Pushpa Devi Sharma, the natural mother of the plaintiff herself has categorically stated that Kishanlal was given in adoption to Shri Bhawani Shanker and his wife Smt. Bhoori Bai in the year 1956. Her statement including the cross-examination is quoted below in extenso for ready reference:--

Likewise, PW-4 Ramchandra and PW-2 Nand Lal (another Nand Lal, not the natural father of the plaintiff) who was a distant relative of Shri Bhawani Shanker also affirmed the fact of the said adoption. They also stated that the Adoption Ceremony had taken place in the Hall (Gokhra) on the first floor of the said suit property. They also explained the Pagdi ceremony on the death of adoptive father, Bhawani Shanker, whose last rites were performed by the plaintiff Kanhaiya Lal alias Krishna Chandra, being his adopted son. As against this, the defence evidence were not precise to dislodge the adoption of the plaintiff. DW-2 Damodar Lal aged 98 years (the court assessed his age at 70 years) was also a tenant of Smt. Bhoori Bai but he could not say specifically about the factum of adoption. The relevant portion of his statement recorded by the learned trial court on 18.11.2003 is quoted below for ready reference:--

On an analysis of the aforesaid evidence and there being no documentary evidence, but only oral evidence available about the adoption, this Court does not find any fatal inconsistency in the statements of the plaintiffs evidence and various witnesses, which was taken as the basis by the learned trial court for holding that the fact of adoption was not proved by the plaintiff. The most important oral evidence of the natural mother of the plaintiff, Smt. Pushpa Devi Sharma, who was earlier working as a Government School Teacher was not believed by the learned trial court for no valid reason. The factum of there being no documentary evidence of adoption and no photographs, were also duly explained by the plaintiffs witnesses that there was no custom of keeping any record in writing and the taking of photographs was not prevalent in the year 1956. Therefore, the findings of the learned trial court in this regard are not justified and not sustainable. The adoption of the plaintiff by Bhawani Shanker and his wife, Smt. Bhoori Bai was adequately proved by the plaintiff, and therefore, issue No. 1 is accordingly decided in favour of the plaintiff-appellant.

Coming to other issues, since issue No. 1 was decided by the learned trial court against the plaintiff, the question of declaring the sale deed as invalid qua the rights of the plaintiff was not required to be gone into in detail by the learned trial court, but now the issue No. 1 having been decided in favour of the plaintiff-appellant, this court is clearly of the opinion that the transfer of the said suit property by Smt. Bhoori Bai solely in favour of defendants-respondents-Shanti Lal and Sunil Kumar cannot be upheld to the extent of share in the said ancestral property of the plaintiff, Kanhaiyalal.

Moreso since the said sale effected on 12.09.1989 was in clear contravention of the stay order granted by this Court on 01.09.1989 in S.B. Civil Misc. Appeal No. 199/89 - Kanhaiya Lal @ Krishna Chandra v. Smt. Bhuri Bai, which is quoted below for ready reference:--

"S.B. Civil Misc. Stay Petition No. 122/89 in S.B. Civil Misc. Appeal No. 199/89 pending in the High Court of Judicature for Rajasthan at Jodhpur

Petitioner:--

Kanhaiya Lal @ Krishna Chandra Son of Shri Bhawani Shanker Ameta, resident of Hathithan, Navghat, Udaipur.

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Versus

Non-petitioner:--

Smt. Bhuri Bai Wd/o of Late Shri Bhawani Shankerji Ameta, r/o Hathithan, Navghat, Udaipur.

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Date of order: 1-9-89

Hon''ble Mr. Milap Chandra, J.

Mr. N.P. Gupta, for the appellant.

"Heard the learned counsel. Let notice of the stay application be issued to the respondent, returnable within 6 weeks and be given dasti to the learned for the appellant.

Meanwhile, the respondent is restrained from alienating or transferring any right, title or interest or possession in respect of the suit property provided the appellant remits Rs. 500/- per month to the respondent till the disposal of the stay application.

The remittance by the appellant and acceptance of this amount by the respondent will not prejudice the rights of any party and effect the decision of this case.

Sd/- (Milap Chandra), J."

The defendants not only failed to produce those registered sale deeds before the learned trial court, but have also failed to explain how the said sale in their favour, which was apparently hit by Section 52 of the Transfer of Property Act and the principles of lis pendens, was still a valid and perfect sale. The ex-parte stay order dated 01.09.1989 was duly notified by the plaintiff-appellant in the newspapers also, and therefore, a presumption of its knowledge with the defendants can be drawn. The sale under the sale deed dated 12.09.1989 to the extent of plaintiff''s rights in the said suit property, therefore, deserves to be set aside. About the court fees, the learned counsel for the plaintiff-appellant, Mr. Manish Shishodia submitted that he has deposited the difference court fees also, subject to his rights, as per the market value assessed by him at Rs. 11,000/- in this Court on 26.08.2011. This Court is of the opinion that for declaring the sale deed ineffective qua his rights in the said ancestral property, the payment of the court fees on the basis of market value of the suit property in question was not even required and the original court fees of Rs. 200/- was already paid by the plaintiff-appellant at the time of fling of this appeal. However, the refund of court fees is not pressed by him.

Accordingly, the appeal is, therefore, allowed and setting aside the impugned order dated 17.10.2006 passed by the learned trial court, the suit filed by the plaintiff is decreed in favour of the plaintiff-appellant and it is held that the plaintiff-appellant Kanhaiya Lal alias Krishna Chandra was adopted by Shri Bhawani Shanker and his wife, Smt. Bhoori Bai on 16.02.1956, and the said suit property in question being the ancestral property and joint family property, qua the rights of the plaintiff-appellant in the said property as adopted son, the exclusive sale made by Smt. Bhoori Bai in favour of defendants No. 2 and 3-Shanti Lal and Sunil Kumar cannot be said to be valid, qua the share of the plaintiff/appellant. Therefore, the plaintiff-appellant is also entitled to a declaration to this effect. No order as to costs. Decree be made accordingly. Copy of this order may be sent to the concerned parties as well as the learned court below forthwith.