Second Appeal No. 45 of 1995. Case: Saraswati and Ors. Vs Chandrabhan and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 45 of 1995 |
| Counsel | For Appellant: C.S. Deshmukh, Advocate and For Respondents: B.S. Shinde, Advocate |
| Judges | T. V. Nalawade, J. |
| Issue | Hindu Adoptions and Maintenance Act, 1956 - Sections 10(iv), 3(a), 4; Indian Evidence Act, 1872 - Sections 101, 3, 60 |
| Judgement Date | January 11, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
T. V. Nalawade, J.
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The appeal is filed against the judgment and decree of Regular Civil Appeal No. 351 of 1984 which was pending in the District Court Beed. The District Court, first appellate Court, has set aside the judgment and decree of trial Court, the Civil Judge, Junior Division, Beed. Present respondent, plaintiff, had prayed for relief of declaration in respect of immovable properties and the sale transactions and such decree is given by the first appellate Court. Both the sides are heard.
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Survey No. 84 admeasuring 2 acres 15 gunthas and survey No. 92 admeasuring 1 acre 35 gunthas situated at village Ghargaon, Tahsil and District Beed are the suit lands. One house property situated in village Ghargaon is also suit property. Its number is not given but the boundaries of the property are given.
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One Rambhau was natural father of the plaintiff Chandrabhan. Baliram was real brother of Rambhau and they were residents of Ghargaon. Defendant No. 1 Yamunabai is widow of Baliram and defendant No. 2 Champabai is a daughter of sister of Yamunabai. Defendant No. 2 is the wife of plaintiff Chandrabhan. During pendency of the suit Yamunabai died.
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It is the case of the plaintiff that Baliram had no issue and Rambhau had two sons and daughters. It is contended that right from beginning Baliram had treated the plaintiff as his son and ultimately he adopted the plaintiff in the year 1950. It is contended that plaintiff was aged about 14 years at the relevant time. It is contended that the plaintiff was adopted in the presence of panchas and respectable persons and adoption ceremonies were performed as per custom of society of the plaintiff. It is contended that parties are Sudras as per Hindu law.
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It is the case of the plaintiff that after the adoption, he lived with Baliram and defendant No. 1 in the house of Baliram and he was treated as son by them. It is contended that after six months of the adoption, in the year 1951, Baliram died. It is the case of the plaintiff that the suit properties were owned by Baliram and since the death of Baliram the plaintiff has been in possession of the suit properties.
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It is the case of the plaintiff that the income of the aforesaid properties was not sufficient for the livelihood and so he shifted to village Wadgaon, Tahsil Kaij, District Beed. It is contended that he did labour work there and he maintained defendant Nos. 1 and 2.
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It is the case of the plaintiff that defendant No. 1 in collusion with Talathi of the village entered her name in 7/12 extract of the suit properties behind his back. It is his case that defendant No. 1 executed gift deed in favour of defendant No. 2 Champabai and then name of Champabai was also entered in the revenue record. It is contended that the suit house was however entered in the name of the plaintiff. It is contended that aforesaid entries in the record of agricultural lands were made behind his back and so they are not binding on him. It is contended that cause of action took place when he learnt about such entries on 1-4-1979 and when he received information that defendant No. 1 and 2 were trying to dispose of the suit properties.
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The suit was filed on 9-5-1979. During pendency of the suit, on 28-5-1979, the suit lands were sold by defendant Nos. 1 and 2 in favour of defendant Nos. 3 to 6 and amendment was carried out in the plaint on 15-7-1982 and this circumstance was mentioned and plaintiff then claimed relief of declaration that sale deeds are not binding on him.
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Defendant Nos. 1 and 2 filed joint written statement. They denied that plaintiff was adopted by Baliram. They denied that during life time of Baliram, plaintiff had lived in the house of Baliram with Baliram and Baliram was treating plaintiff as his son. They however admitted that plaintiff is son of Ramrao and Ramrao was brother of Baliram.
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It is the case of defendant No. 1 and 2 that the suit properties and other agricultural lands like Survey Nos. 86/1, 100/3 and 109/2 situated at Ghargaon were also owned by Baliram. It is contended that, these lands were sold by defendant No. 1 long back, as she was the owner of these lands.
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It is the case of the defendants that plaintiff lived in Wadgaon since many years. They have contended that plaintiff never maintained them. It is contended that, since many years defendant No. 2 is deserted by plaintiff and defendant No. 2 maintained defendant No. 1. It is the case of the defendant Nos. 1 and 2 that due to harassment of plaintiff and his brother, they left Ghargaon and they shifted to Chausala and after that plaintiff managed to get possession of the aforesaid house property.
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It is the case of the defendant Nos. 1 and 2 that after the death of Baliram, suit properties and other properties were entered in the name of defendant No. 1 as she is only successor of Baliram. It is their case that from the years 1955 to 1958 plaintiff had some how managed to enter his name in the crop cultivation column of the suit lands. It is contended that during those days defendant No. 2 was living with plaintiff. It is contended that in the year 1959-60 correction was made in the revenue record, name of the plaintiff was removed and from the year 1961 onwards, the name of defendant No. 1 was entered both in ownership and cultivation columns.
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It is the case of the defendant Nos. 1 and 2 that on 14-7-1972 defendant No. 1 gifted the suit lands to defendant No. 2 and accordingly entries in revenue record were made in favour of defendant No. 2. It is contended that from the date of gift, defendant No. 2 cultivated the suit lands. They have denied that the plaintiff had no knowledge about the aforesaid mutations and the transactions.
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It is the case of the defendants that defendant No. 1 had succeeded to the properties of Baliram and so she sold Survey No. 86/1 to one Housrao Tulsiram Dhas under sale deed dated 2-2-1966. She sold Survey Nos. 100/3 and 109/2 under sale deed on 9-9-1971 to one Mukund Bhanudas Dhas. It is contended that under these sale deeds possession was given of these lands to the purchasers and those lands are still with the purchasers. It is contended that, the circumstance that the plaintiff has not challenged these sale deeds shows that he was never adopted by Baliram. It is contended that the suit lands were also sold under registered sale deeds to defendant Nos. 3 to 6 and the possession is handed over by defendant Nos. 1 and 2 to these defendants. It is contended by defendant Nos. 1 and 2 that the case of the plaintiff that he is in possession of suit property is false.
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Written Statement was filed by other defendants also and their contentions are similar to the contentions made by defendant Nos. 1 and 2.
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Issues were framed by the trial Court on the basis of aforesaid pleadings. Both sides gave evidence. The case of the plaintiff rests mainly on the contention of his adoption by Baliram in the year 1950. If he fails to prove the adoption, he cannot get any relief. The trial Court had held that plaintiff failed to prove his adoption by Baliram. The trial Court had refused to believe the witnesses examined by the plaintiff who have given direct evidence on adoption. No document of adoption was created as per the case of the plaintiff and even the names of witnesses were not mentioned in the pleadings by the plaintiff. The trial Court considered the direct evidence and also the surrounding circumstances while giving decision. The first appellate Court has held that the inconsistencies appearing in the evidence of the witnesses to adoption are minor and they can be ignored as the evidence was given after many years of the adoption. The first appellate Court has placed reliance on some observations made by the Orissa High Court in a reported case.
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This Court, other Hon'ble Judge, admitted the present appeal by observing that substantial questions of law can be formulated on the grounds mentioned in appeal memo as Ground Nos. K, P, Q, R and S. No specific questions were formulated. The substantial questions of law can be formulated on the basis of those grounds as under:-
(I) Whether the first appellate Court has committed error in not considering the circumstance that other transactions of sale made by the defendant No. 1 in respect of three agricultural lands like Survey Nos. 86/1, 100/3 and 109/2 which were left behind by Baliram are not challenged by the plaintiff in the suit?
(II) Whether the first appellate Court has committed error in not considering the circumstance that after the death of Baliram name of defendant No. 1 only was mutated in the revenue record as successor of Baliram and the name of the plaintiff was not entered as successor of Baliram?
(III) Whether the first appellate Court has committed error in not considering the circumstance that the cooperative credit society could not have given loan to the plaintiff on the lands left behind by Baliram as plaintiff was not shown as owner in the revenue record and further there is the circumstance that it is defendant No. 1 who had repaid the loan?
(IV) Whether the first appellate Court has committed error in not giving due weight to the circumstance like plaintiff never used name of Baliram as his father anywhere and he continued to use the name of his natural father Rambhau?
This Court allowed both the sides to argue on following substantial question of law also:-
(V) Whether due to absence of specific pleadings with regard to particulars of adoption and due to inconsistencies in the evidence of the witnesses it can be said that there is sufficient evidence to prove the factum of adoption?
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Before considering the evidence given by both the sides, it is necessary to quote the position of law. The first appellate Court has relied on some observations made by Orissa High Court in the case reported as AIR 1976 Orissa 43 (Gouranga Sahu v. Bhaga Sahu). The observations used are as under:
Hindu Law Adoption Burden of proof...
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