Surajbai vs Sadashiv

Samvatsar, J.—This appeal is filed by the defendants.

The plaintiff-respondent Sadashiv filed a suit against the defendants Surajbai, now deceased, and her daughter Gitabai, for possession of a house situated at Gotampura and some movable property. He alleged in the plaint that he was the adopted son of one Jugalkishore who died in the year 1918 leaving behind besides himself, his widow Kasturibai; that Kasturibai and the plaintiff remained in possession of the property left by the deceased Jugalkishore; that Kasturibai died on 17-9-1947 and that the defendant No. 1 who is the daughter of one Shankarlal, the deceased brother Jugalkishore and defendant No. 2, the daughter of defendant No. 1, taking advantage of the absence of the plaintiff, took unauthorized possession of the property in suit; that on being called upon to restore it, they refused to do so. Hence the plaintiff has filed this suit.

The defendant No. 2 was a minor on the date of the suit and was represented by a guardian-at-litem who generally denied the plaintiff''s claim. The defendant Surajbai filed a detailed written-statement in which she denied the adoption of the plaintiff by Jugalkishore and contended that be was kept with Jugalkishore by his father Narayan, only for the purpose of receiving education and for this reason the plaintiff al ways described himself as the son of Narayan. She denied that she was in possession of the movable property belonging to Jugalkishore and denied the plaintiff''s allegation that the house in dispute belonged to the deceased Jugalkishore. She contended that the house was a temple and was ancestral property of deceased Jugalkishore and Shankarlal. The plaintiff bad therefore no claim to it.

The defendant Surajbai further alleged that Kasturibai, the widow of deceased Jugalkishore had executed a will and had bequeathed all the property to the defendant No. 2. She also vaguely denied that the plaintiff''s claim was within time.

In the special pleading, the defendant Surajbai contended that Jugalkishore was an Inamdar and that there could be no adoption in the family without the previous permission of the Government. She also alleged that she had filed a suit against the plaintiff in the Court of the Munsif Hatod, being Civil Suit No. 48 of 1940, in which the issue of adoption was specifically raised and decided against the plaintiff, that this decision operated as res judicata and barred the trial of the plea that plaintiff was the adopted son of deceased Jugalkishore.

The trial Court decreed the plaintiff''s claim. In doing so, it held that the plaintiff was proved to be the adopted son of Jugalkishore; that the claim was neither barred by res judicata nor by the law of limitation. It further held that the defendants were in possession of seven Chasmas of house belonging to Jugalkishore and that the plaintiff''s claim with respect to the movable property was not proved. As regards the will executed by the deceased Kasturibai, it was held that Kasturibai being a Hindu widow, was not competent to bequeath the property and that the will was therefore inoperative and did not affect the plaintiff''s claim.

Aggrieved by this decree the defandants have preferred this appeal.

The main contentions raised in this appeal by Mr. Patel, learned Counsel for the appellants were; (i) that the plaintiff was not proved to be the adopted son of deceased Jugalkishore; and (ii) that in any event; the decision of the Munsif Hatod, in Civil Suit No. 48 of 1940 on this issue was conclusive and debarred the plaintiff from raising it again. Mr. Patel also contended that the three Chasmas house attached to the temple was purchased by Jugalkishore and Shankarlal jointly and that in any event, a decree for exclusive possession of the seven Chasmas of the house passed by the trial Court could cot be maintained.

The most important issue in this case is Issue No. 1 which is Whether the plaintiff is the lawfully adopted son of deceased Jugalkishore? The defendants have denied the factum of adoption and have challenged the validity only on the ground that Jugalkishore was an Inamdar and that no adoption in his family could be validly made without the previous permission of the Government.

According to the plaintiff''s case, his adoption took place sometime in the year 1915. To prove his case he examined some witnesses and also relied upon some documentary evidence.

P.W. 1 Shankarlal has deposed that Jugalkishore had no son and he therefore adopted Sadashiv that the ceremony of adoption took place at Ujjain where Narayan gave the boy and Jugalkishore took him in adoption About 50 or 75 persons were present, Munnalal, Bherulal, Shivnarayan, Kanhaiyalal, Rewashankar and others were present there; that from amongst these persons Munnalal, Rewashankar and Mitthulal are alive. The witness then goes on to state that the document Ex. P/1 was written at that time and that it was attested amongst others, by him; that the document Ex. P/1 bore his signature. In cross-examination he has stated that he did not know what was the name of Sadashiv before the adoption as he knew the plaintiff by the name of Sadashiv; that the document P/1 was executed at the place of adoption; that Sadashiv was then about eight years old and was present there. The witness was further asked whether Sadashiv had committed theft in the house and was convicted, and he replied in the affirmative.

P.W. 2 Mohammad Husen has deposed that he was present at the time of the adoption and knew that Sadashiv was adopted by Jugalkishore.

P.W. 6 Bherulal is another witness who claims to have witnessed the adoption ceremony. Like Shankarlal this witness has also deposed that Narayan gave the boy in adoption to Jugalkishore; that the ceremony was performed at Ujjain; that Shankarlal. Chunnilal and others were present on the occasion. In cross-examination this witness has stated that the original name of Sadashiv was Shankarlal and it was changed on adoption. This witness has also stated that the document P-1 was executed by Narayan at the time of adoption and that Narayan Singh it in his presence.

From amongst witnesses, P.W. 1 Shankarlal and P.W. 6 Bherulal are relations of the family, Shankarlal has stated that his father and Jugalkishore were cousin brothers. P.W. 6 Bherulal is the brother of Kasturibai wife of Jugalkishore. These persons are naturally expected to know the important events in the family and to have witnessed them. There is nothing in the deposition of these witnesses which would throw any doubt on their veracity.

The plaintiff has pledged his oath and has generally supported the evidence of these witnesses.

The oral evidence led by the plaintiff is supported by overwhelming documentary evidence.

Ex. P-1 which is the most important document, is a letter addressed to the Panchas of Rupakhedi by Narayan the natural father of Sadashiv. He has stated in that document that he had given his son Shankar in adoption to Jugalkishore and that by reason of this adoption, Shankar has become Jugalkishore''s son. This document is duly proved by P.W. 1 Shankarlal who is one of the persons who had attested it.

The plaintiff has then produced certified copies of the statements made by his adoptive mother Kasturibai and Bhuribal widow of Shankarlal. These two widows have made a statement on oath before the Inam Inquiry Officer, Depalpur, on 23-2-1929 in proceedings connected with the mutation of plaintiff''s name to the Inam lands held by the family in village Roonji, Gotampure. In their statement both of them have admitted that Kasturibai had adopted Sadashiv. On the same day and before the same Officer, they produced a genealogical tree, copy of which is produced at Ex. P- 14, In that genealogical tree the plaintiff is shown as the adopted son of Rawal Jugalkishore, husband of Kasturibai.

Kaluram, who is one of the appellants in the present case and is the husband and Am Mukhtar of Suraj Bai, was also examined before the Amin, Depalpur on 5-3-1931. In his statement, copy of which is produced at Ex. P-19, he has specifically admitted that the plaintiff was adopted by Jugalkishore about 10 or 12 years back and the ceremonies were performed according to law and customs of the community.

Exts. P-1, P-6, P-7 and P-8 are orders passed in regard to mutation of plaintiff''s name on the Inam lands which were held by Jugalkishore.

This documentary evidence is unimpeachable and shows that as far back as the year 1929, Kasturibai and Bhuribai, the widows of Jugalkishore and Shankarlal respectively, admitted before the Inam Inquiry Officer in their statements on oath that the plaintiff was the adopted son of deceased Jugalkishore. Kaluram, one of the appellants and the husband of Surajbai, likewise admitted that plaintiff was the adopted son of Kasturibai and stated further that the ceremonies as required by law and custom were performed in connection with this adoption during the lifetime of Jugalkishore himself. The documents P-4, P-6, P-7 and P.8 further show that the plaintiff''s adoption was recognized by the Government of the then Holkar State and that his name was mutated on the Inam Lands held by Jugalkishore.

The lower Court has relied upon all this evidence and has on its basis held that the plaintiff was the adopted son of Jugalkishore.

Mr. Patel learned Counsel for the appellants critisized the whole evidence as unreliable. In particular he referred to the statement of Mohammad Hussen to show that this was in conflict with the statement of Shankarlal and Bherulal as according to the learned Counsel, Mohammad Hussen''s evidence indicated that the adoption took place at Gotampura whereas according to the evidence of other witnesses, the ceremonies of adoption were performed at Ujjain. There is nothing in the statement of Mohammad Hussen to warrant the suggestion made by Mr. Patel, He has not been asked whether the adoption which was witnessed by him had taken place at Ujjain or Gotampura, and the mere fact that the witness is a resident of Gotampura cannot by itself be sufficient to justify Mr. Patel''s comments.

Mr. Patel''s main argument was based on Exts. D-1, which purports to be a document executed by Narayan in favour of deceased Jugalkishore on 27-8 1916, and D-10 which is a copy of an extract from the School Register. He also relied upon Ex. D-13 and certain other documents in which Sadashiv is mentioned as Narayan''s son.

Ex. D-1 is a document described as ''Ikrarnama'' for expenses and is alleged to have been executed by Narayan on 27 8-1916 in favour of Jugalkishore. It is mentioned in this document by Narayan that he has kept his eldest son by name Sadashiv with Jugalkishore for the purpose of education and that he undertakes to pay all his expanses. The document is produced in the statement of D.W. 4 Jagannath who is one of the attesting witnesses to this document. Jagannath has stated that Sadashiv referred to in this document is the plaintiff himself and that the document was executed at the time when the boy was kept with the deceased Jugalkishore, it is difficult to believe the statement of Jagannath that Sadashiv referred to in the document is the plaintiff. The document P-1 which was executed on Jeth Sudi Poonam, S.Y. 1973 and which admittedly refers to the plaintiff, shows that his name in Narayan''s family was Shankar and not Sadashiv. Then the boy referred to in P-1 was living with Jugalkishore, if not from before, at any rate, from the date of the document itself, Jagannath is definite that the document Ex. D-1 was executed when the boy mentioned therein was kept with Jugalkishore. It appears to me from all this that Sadashiv mentioned in D-1 was some other son of the deceased Narayan and was kept by him with Jugalkishore under the circumstances mentioned therein. The document D-1 does not therefore help the defendants.

The same thing may be said about D/10. The plaintiff has, in reply to a question put to him in cross-examination, definitely stated that when he was learning in school he described himself as Sadashiv s/o Jugalkishore. D-10 was not specifically put to him and his explanation as regards the person mentioned in D-10 was not obtained. D-10 also cannot therefore help the defendant''s case.

Reliance was also placed on D-13 which purports to be a statement made by the present plaintiff as an accused in Criminal Case No. 106 of 1941. A question was put to the plaintiff in cross examination whether he had in that Criminal case described himself as Sadashiv son of Narayan and he denied that fact. D-13 was not put to him at that stage and his explanation on that document was not obtained. This document too, is therefore not of much use.

In D-19, which is a copy of the Challan filed by the Gotampura Police against the present plaintiff, accused in that case is described as Sadashiv Narayan, son of Jugalkishore Brahmin of Gotampura. This Challan appears to have been filed by the police against the plaintiff on the complaint of Kasturibai and describes the plaintiff as the son of Jugalkishore. Instead of helping the defendants, the document in my opinion helps the plaintiff.

In appreciating the evidence produced by the plaintiff in support of his adoption, it must be borne in mind that the alleged adoption took place in the year 1916, that is, about 40 years back, and has since then been acknowledged by the relations and members of Jugalkishore''s family and has also been recognized by the public authorities. Being an adoption in an Inamdar''s family, it required the sanction of the Government and It appears from Ex. P-8 and other documents that not only such sanction was given by the State but the adoption was also recognized as a valid adoption and effect was given to it by mutating the Inam lands of Jugalkishore in the name of the plaintiff.

It is no doubt true as held by the Privy Council in AIR 1930 79 (Privy Council) that the onus of proving an adoption is on the party setting it up; but it is also true that if the plaintiff''s adoption is an old one and the plaintiff had been treated as an adopted boy by the members of the family and in public transactions, then a presumption arises in his favour. In AIR 1925 201 (Privy Council) their Lordships observed:--

It stands to reason that after such a long term of years, and the variety of transactions of open life and conduct, upon one footing alone namely, that the adoption was recognised as a valid act, the burden, resting altogether apart from the law of limitation, upon any litigant who challenges the authority of an admitted adoption, is Indeed of the heaviest order.

To the same effect are the observations of Mahajan, J., as he than was, in Panna Lal vs. Chiman Parkash AIR 1947 Lah 54. The learned Judge has also held in that case that in respect of an old adoption strict proof of the performance of the ceremonies cannot be demanded.

The authorities thus seem to lay down that where the alleged adoption is an old one and has taken place many years ago, strict proof of giving and taking or performance of the ceremonies necessary to constitute valid adoption is not necessary and may be difficult to obtain. If the alleged adopted son has been treated as such for a long series of years, very slight evidence is sufficient to prove the adoption.

The adoption in the present case is an old one and has also been proved by the plaintiff by examining some of the witnesses who were present when the ceremonies were performed. There is also evidence to prove that Bhuribai, the widow of Shankarlal and Kasturibai, the widow of Jugal Kishore acknowledged the adoption. Even the appellant Kaluram admitted that the plaintiff was adopted by Jugalkishore during his life-time. The adoption was sanctioned by the State Authorities and the plaintiff was recognized by them as the adopted son of Jugalkishore during the Inam Inquiry. They found that the plaintiff was the adopted son of Jugalkishore and mutated his name on the Inam lands which were at one time held by Jugalkishore. The evidence on record is thus sufficient to hold that the plaintiff is the adopted son of the deceased Jugalkishore.

The defendants have challenged the validity of adoption contending that being en adoption in an Inamdar''s family, the plaintiff''s adoption was not valid because it was made without obtaining the previous permission of the State. At the stage of arguments Mr. Patel, learned Counsel for the appellants, did not press this point. He frankly conceded that the sanction of the State was necessary only with respect to the Inam lands and that in the present case the State had by a past facto sanction, recognised the plaintiff''s adoption and had directed his name to be mutated in place of deceased Jugalkishore as an Inamdar, The point having thus been conceded, no longer survives and needs no further consideration.

The next point that arises for consideration is, whether the decision in Civil Suit No. 48 of 1940 operates as res judicata and debars the plaintiff from contending in this suit that he was the adopted son of deceased Jugalkishore.

The principle of res judicata is that if the res or the thing directly and substantially in dispute has already been adjudicated upon by a competent Court, it cannot be litigated again. To apply this principle, it is therefore necessary that the Court which adjudicated upon the dispute must be a Court of competent jurisdiction. For it cannot be disputed that a decree passed by a Court which had no jurisdiction to entertain the suit, is a nullity and binds no one. The first question that therefore arises for consideration is, whether the Munsif Hatod who decided Civil Suit No, 48 of 1940 was competent to entertain it?

Sec. 9, CPC provides that the Courts shall have jurisdiction to try all suits of Civil nature excepting suits of which their cognizance is either expressly or impliedly barred. At the material time suits with respect to adoption, succession and maintenance in the families of Jagirdars and Inamdars were outside the jurisdiction of the Civil Courts. Sec. 99 of the Jagirdar Manual which was the law prevailing in Holkar State and which applied both to Jagirdars and Inamdars, provided as follows:--

Questions regarding adoption, succession and maintenance in a Jagirdar''s family shall be outside the jurisdiction of Civil Courts. Such questions shall be decided departmentally.

It was conceded by Mr. Patel, learned counsel for the appellants during the course of his arguments that the suit filed by Surajbai against the present plaintiff in the Hatod Court in the year 1940 was a suit with respect to the Inam lands. This is also borne out by the recitals in the plaint filed in that suit, copy of which is produced at Ex. D/3-2 and from the written statement, copy of which is produced at Ex. D-3-1. As a matter of fact the defendant had in his written statement specifically contended that the Court had no jurisdiction to entertain the suit, was it pertained to Inam lands. The question of adoption which was raised in that suit was raised vis-a-vis the Inam lands and in view of the provisions of Sec. 99 of the Jagirdar Manual, the Civil Court had no jurisdiction to adjudicate upon it. It was a matter which had to be dealt with departmentally. It appears from Ex. P-8 that the department had examined the question of plaintiff''s adoption and had recognized it as valid. The Munsif, Hatod, was under the circumstances not competent to adjudicate upon the issue involving the validity of adoption of the plaintiff. The decision of this issue cannot be regarded as a decision by a competent Court and treated as conclusive and binding on the plaintiff.

The matter can also be considered from another aspect. Sec. 11 of the CPC provides that in order that the previous decision should operate as res judicata, the Court deciding it must also be shown to be competent to entertain the subsequently filed suit. The value of the claim in the present suit was Rs. 6,500 whereas the value of the suit filed in the Hatod Court was 150-. The present suit, even if it was filed in the Hotod Court, could not have been entertained by it. The decision of the Hatod Court in Civil Suit No. 48 of 1940 cannot under the circumstances be held to be conclusive u/s 11 Civil Procedure Code.

Mr. Patel, learned Counsel for the appellants contended that the value of the property has gone high now and that if the suit for possession of the present property were to be instituted in the year 1940, the Hatod Court would have been competent to entertain it. This argument is based on surmises and not on any factual date. It may be that the price of the property has gone up but there is nothing on record to indicate that the value of the property in suit would in the year 1940 have been less then Rs. 3,000. Under the circumstances the contention of Mr. Patel cannot be entertained.

The Munsif Hatod was not competent to try the issue relating to adoption in Civil Suit No. 48 of 1940. He also could not have entertained the present suit and for both these reasons the decision given by that Court cannot be regarded as conclusive and binding. The rule of res judicata does not operate in the present case and the trial of the issue relating to adoption in the present case is not barred by Sec. 11, Civil Procedure Code.

The last point that arises for consideration is, whether the three Chasmas of house adjoining the temple which was purchased in the year 1898, vide D-17, was the property of Jugalkishore or was joint property of both Jugalkishore and Shankarlal. The sale-deed which is produced at Ex. D-17 is in favour of both Jugalkishore and Shankarlal and prima facie shows that the property belonged to both of them. The trial Court has however proceeded on the assumption that this property was assigned to Jugalkishore in the partition between Jugalkishore and Shankarlal. In this respect the lower Court appears to have laboured under some misapprehension of facts. The property was purchased in the year 1898, whereas both the parties agree that the two brothers had separated long before, that is, in Samvat Year 1944. There was no subsequent partition between Jugalkishore and Shankarlal and no basis for the assumption that the whole of the seven Chasmas of house was assigned to Jugalkishore. The three Chasmas of house belonged to both the brothers and must now be treated as joint property of the plaintiff and the defendants. On this view of the matter, the decree passed by the trial Court for possession of seven Chasmas of house in favour of the plaintiff cannot be supported and will have to be modified. I hold that the plaintiff is entitled to four Chasmas of house described as Temple. He is also entitled to one-half share in the remaining three Chasmas which were acquired by Jugalkishore and Shankarlal, vide D-17. The plaintiff has not prayed for partition of this property but has asked for its exclusive possession. I think the plaintiff is not entitled to exclusive possession of this property but can be put in joint possession of it along with the defendants.

The result is that the appeal is partially allowed. The decree of the trial Court is maintained so far as the Temple property is concerned. So far as the remaining three Chasmas acquired, vide D-17, are concerned, the plaintiff''s claim is decreed for joint possession. As the appellants have succeeded in part, I direct that they shall pay half the costs incurred by the respondent in this appeal and bear their own.

Dixit, J.

I agree.