[Cites 11, Cited by 0]
Bombay High Court
Shyamsunder Mahadeo Khandelwal And 2 ... vs Chandraprakash Ramdayal Agrawal And 6 ... on 15 May, 2026
2026:BHC-NAG:7352
SA 567 of 2007 - Judgment.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.567/2007
APPELLANTS : 1) Shyamsunder S/o Mahadeo Khandelwal.
Org. Defts. Aged about 66 years, Occ-Business.
Legal Representatives of Appellant 1 (i) to (vi)
L.Rs. of A-1
i) Smt. Shakuntala wd/o Shyamsunder Khandelwal,
Aged about 75 years
Occupation: House Wife (Widow).
ii) Mr. Sanjiv s/o Sayamsunder Khandelwal,
Aged about 56 years, Occupation: Private (Son).
iii) Mr. Sashi s/o Shyamsunder Khandelwal,
Aged about 51 years, Occupation: Private (Son).
iv) Mr. Sudhir s/o Shyamsunder Khandelwal,
Aged about 50 years,
Occupation: Private (Son).
All residents of behind Petrol Pump,
Near Mama Chowk, Govindpur, District-Gondia.
v) Smt. Shobhna w/o Shyamsunder Khandelwal,
Aged about 59 years, Occupation: Housewife,
Resident of Khandelwal Kirana Corner,
Niwadgunj, Jabalpur (M.P.) (Married Daughter);
vi) Sangita w/o Umesh Khandelwal
(Mali), Aged about 52 years,
Occupation: Housewife, Resident of Post Sonala,
Tahsil - Sonala, District - Buldhana
(Married Daughter)
(Amendment carried out as per Court's
order Dt. 16/10/23).
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2) Kisan Gopal 5/o Mahadeo Khandelwal,
Aged about 60 years, Occ-Business,
3) Omprakash alias Munna S/o Mahadeo
Khandelwal,
aged about 48 years, Occ-Business.
L.R.
Mahadeo S/o Harbax Khandelwal (Dead)
All R/o Kudwa Line, Gondia, Tahsil and
District-Gondia.
...VERSUS...
RESPONDENTS : 1) Chandraprakash S/o Ramdayal Agrawal
Org. Plffs. Aged about 54 years, Occ-Bidi
Manufacturer, R/o Lala Oli, Kamptee,
Tahsil and District-Nagpur.
2) Smt. Laxmibai Wd/o Seth Ramdayal Agrawal
(Dead) through L.Rs. i.e. Resp. No.1
L.R.
Mahadeo S/o Harbax Khandelwal (Dead)
(As per Court's order dt. 27.3.2014
(R. No.2 LR is deleted)
3) Ratnidevi Wd/o Mahadeo Khandelwal
Aged about 93 years, Oce-Household,
R/o Kudwa Line. Gondia, Tahsil and
District Gondia.
[As per Court's order dt. 11/4/08
(R.No.3 is deleted)]
4) Ramkisan S/o Mahadeo Khandelwal,
Aged about 68 years, Occ-Business,
R/o Kudwa Line, Gondia, Tahsil and
District-Gondia (Dead)
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4. Ramkisan s/o Mahadeo Khandelwal
Aged About 68 Years,
Occupation: Business, Resident of Kudwa Line,
Gondia, Tahsil and District Gondia (Dead),
through his Legal Heirs:
4 (a) Mr. Rajkumar s/o Ramkishan Khandelwal
Aged About 61 Years, Occupation:
Private (Son);
4 (b) Mr. Vinod s/o Ramkishan Khandelwal
Aged About 55 years, Occupation:
Private (Son);
Both Residents of Near Shitala Mata Mandir,
behind Khandelwal Rice Mill, Bajpai Ward,
Gondia-441601
4 (c) Mr. Krishnkant s/o Ramkishan Khandelwal
Aged About 59 Years, Occupation:
Private, a resident of Opposite Khandelwal
Rice Mill, Bajpai Chowk,
Gondia- 441601(Son),
4 (d) Mrs. Kavita w/o Rajesh Khandelwal,
Aged About 53 Years, Occupation:
Household, a resident of Flat No.1,
Trilok Plaza, Shahgunj, Chhatrapati
Sambhaji Nagar - 431001 (Married
Daughter).
4 (e) Rekha w/o Prakashchandra Khandelwal,
Aged About 64 Years, Occupation :
Household, a Resident of 162, Pashupatinath
Nagar, 1st Floor, Pratap Nagar, Jaipur,
Rajasthan-302033 (Married Daughter).
(Amendment carried out as per court's
order Dt. 24/2/26).
5) Smt. Shakuntala W/o Sitaram Khandelwal,
Aged about 61 years, Occ-Household,
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R/o, Katangi, Tahsil-Waraseoni,
District Balaghat, Madhya Pradesh.
6) Smt. Umadevi w/o Shyamsunder Khandelwal,
Aged about 49 years, Occ-Household,
R/o Ganj Para District-Durg (M.P.).
7) Smt. Puspa W/o Ramratan Khandelwal,
Aged about 45 years, Occ-Household,
R/o Gittikhadan, Nagpur, Tahsil and
District-Nagpur.
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Mr. J.T. Gilda, Sr. Advocate a/b Mr. R.K. Joshi, Advocate for appellants
Mr. S.C. Mehadia, Advocate with Mr. S.B. Mohta, Advocate for respondent No.1
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CORAM : ROHIT W. JOSHI, J.
Date of reserving the judgment : 27/03/2026
Date of pronouncing the judgment : 15/05/2026
1. The present Second Appeal is preferred against the
judgment and decree dated 03/04/2007, passed by the learned District
Judge - I, Gondia, dismissing Regular Civil Appeal No.44/2003, thereby
confirming the decree for possession dated 01/02/2003, passed by the
learned Joint Civil Judge, Junior Division, Gondia in Regular Civil Suit
No.250/2000 (Old Special Civil Suit No.18/1979).
2. The appellants in the present appeal are the legal
representatives of the original defendant, respondent No.1 is original
plaintiff No.1, respondent No.2 is the original plaintiff No.2, who has
expired and is represented by the respondent No.1. The respondent
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Nos.3 to 7 are also legal representatives of original defendant, who
have not joined the other legal representatives as appellants. The
parties will hereinafter be referred to as "plaintiffs and "defendant".
3. The plaintiff Nos.1 and 2 filed a suit against the defendant,
challenging the Gift-deed dated 15/04/1968, executed by late
Ramdayal Agrawal in favour of defendant and for possession of suit
properties, which comprise of two house properties bearing Municipal
House Nos.258 and 261 situated in Kudwa Line, Deshbandhu Ward,
Gondia. It is the case of the plaintiffs that plaintiff No.1 is son of
plaintiff No.2 and her husband late Ramdayal Agrawal. It will be
pertinent to mention that it is not specifically stated in the plaint that
the plaintiff No.1 is adopted son of late Ramdayal and plaintiff No.2.
However, during the course of evidence, case of adoption is set up,
which is accepted by both the learned Courts. It must also be stated that
in the written statement, the defendant has himself stated that the
plaintiff No.1 claims to be adopted son of late Ramdayal and plaintiff
No.2. It must also be stated that the defendant No.1 has a long
association with late Ramdayal (adoptive father), inasmuch as earlier
he was working with him as Munim/accountant and thereafter as a
working partner with late Ramdayal.
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4. It is the case of the plaintiffs that the suit properties are
ancestral properties and that late Ramdayal had, without legal
necessity, executed gift with respect to suit property bearing House
No.258 in favour of the defendant on the condition that the defendant
would vacate the suit property bearing House No.261 within a period of
four years. As against this, during the course of evidence the defendant
tried to contend that the so-called adoption of the plaintiff No.1 is not a
valid adoption, the suit properties are properties of the partnership firm
and not ancestral properties, as contended by the plaintiffs and further
that the suit was barred by limitation. Having provided a broad
overview of the respective cases of the parties, it will now be
appropriate to deal with respective cases in some detail.
5. The plaintiff has stated in paragraph No.1 of the plaint that
the plaintiff No.1 is son and plaintiff No.2 is widow of late Ramdayal
Onkarlal Agrawal who expired on 19/12/1971. It is stated that he was
engaged in ancestral business in tobacco and tobacco products. The
business was conducted under the name and style of 'Ramchandra
Onkarlal'. It is the case of the plaintiffs that the suit properties bearing
House Nos.258 and 261 are ancestral properties, which were in
possession of the defendant as a licensee. It is stated that the defendant
was associated with late Ramdayal initially as an accountant and
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thereafter as working partner in the business establishment at Gondia
and was solely looking after the said business. The plaintiff has stated
that at the instance of the defendant and on assurance that he will
vacate the suit House No.261, which is recorded in agreement dated
22/01/1968, late Ramdayal had executed a registered gift dated
15/04/1968 in his favour with respect to House No.258. It is contended
that the suit properties are ancestral properties and the gift is executed
without legal necessity and as such, the same is not binding on the
plaintiffs. It will also be pertinent to state that in paragraph No.6 of the
plaint, it is pleaded that in the suit properties and ancestral properties
the plaintiff No.1 has acquired right by 'birth' as a son. The gift with
respect to suit property bearing Survey No.258 is challenged on the
ground that the father Ramdayal had executed the same without legal
necessity.
6. The defendant filed his written statement opposing the
suit. The defendant denied that relationship of plaintiff No.1 as son of
Ramdayal. In response to paragraph Nos.1 and 6 of the plaint, the
defendant has specifically denied the status of plaintiff No.1 as son of
Ramdayal. However, in the specific pleadings, he stated as under : -
"The Plaintiff No.1 is an alleged adoptive son does not
have any right to property by virtue of adoption unless the
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adoption deed mentions the day of adoption his rights regarding
inheritance."
7. The said statement in the written statement assumes
significance since the defendant has spoken about the status of plaintiff
No.1 as adopted son of plaintiff No.2 and her husband Ramdayal,
although there is no positive statement in the plaint that plaintiff No.1
was adopted by plaintiff No.2 and her husband Ramdayal. It will also
be appropriate to state that at several places in the written statement
while referring to Ramdayal, the defendant has referred to him as
plaintiff's father. However, it must be reiterated that at two places in the
written statement, there is a specific denial as regards plaintiff No.1
being son of Ramdayal and plaintiff No.2 and in specific pleadings a
clear contention is raised that the plaintiff No.1, as alleged adoptive
son, does not get right over the suit properties by virtue of his adoption
since the adoption-deed does not speak about right to inherit property
being vested in plaintiff No.1.
8. It will be pertinent to state that the issues in the suit were
framed on 08/02/1982. The plaintiff No.2 has expired in the year 1981
prior to framing of issues. It will also be necessary to state that the
defendant has also expired before commencement of evidence of
defendant and therefore, the defendant also could not be examined as a
witness.
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9. During the course of evidence, the plaintiff contended that
his biological parents, namely, Harinarayan Bhaurilal Agrawal and
Rukhminibai Harinarayan Agrawal had given him in adoption to the
plaintiff No.2 and her husband late Ramdayal on 09/12/1953. It is
contended that adoption-deed was executed on 09/12/1953, and it was
registered on 10/12/1953. The adoption-deed dated 09/12/1953 is at
Exh.129. Likewise, a declaration of adoption dated 11/07/1971, was
executed by Ramdayal which was registered on 12/07/1971 is also
relied upon. The said document is at Exh.130. Reliance is also placed on
succession certificate issued in Case No.28/1972 on 11/04/1975 which
is at Exh.131. The succession certificate is issued in favour of plaintiff
Nos.1 and 2 with respect to deposits in bank account and shares of late
Ramdayal.
10. The plaintiff was around three years of age at the time of
his adoption. The plaintiffs have examined Harinarayan as PW-3 at
Exh.169. He is natural father of the plaintiff No.1. He has stated in his
evidence that Ramdayal (adoptive father) is his brother. He states that
since Ramdayal was issueless, he had requested him to give the plaintiff
in adoption. The witness states that he and his wife agreed to give their
son (plaintiff No.1) in adoption to Ramdayal and plaintiff No.2. The
witness has deposed about execution of adoption-deed and its
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attestation. He has stated that rituals and ceremonies with respect to
adoption were observed on the same day. The witness has specifically
stated that he and his wife as also Ramdayal and his wife, the plaintiff
No.2, were present in the function and several persons from the
community were invited to witness the ceremony, where he and his wife
had given the plaintiff No.1 in adoption to plaintiff No.2 and her
husband. He has specifically stated that Datta Homam was performed
and plaintiff No.1 was placed by his natural parents in the lap of
plaintiff No.2 and her husband, turban (Pagdi) was tied to plaintiff No.1
and all traditions and customs were followed. The witness has also
stated that since his adoption plaintiff No.1 stayed at Kamptee as son of
Ramdayal and plaintiff No.2 and that after demise of the adoptive
father - Ramdayal, plaintiff No.1 observed all rituals as a son and
Turban (Pagdi) was also tied. He further deposed that similarly after
demise of plaintiff No.2, the plaintiff No.1 observed all the rituals as her
son.
11. During his cross-examination, he denied the suggestion
that he was not real brother of Ramdayal and that real brother of
Ramdayal by name of Harinarayan was of some other person. In the
cross-examination, questions were put as to why the natural mother has
not signed the adoption-deed. He stated that it was not necessary.
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12. The plaintiffs have also examined PW-4 Kasturchand, who
deposed that he had attended the adoption ceremony of the plaintiff
No.1. The said witness stated that after adoption plaintiff No.1 stayed
with Ramdayal at Kamptee as a son and last rites of Ramdayal and
plaintiff No.2 were performed by plaintiff No.1. This is the evidence,
which is brought on record by the plaintiffs in relation to adoption.
13. The respondent examined one Ramkrushna Khandelwal as
their witness. This witness has signed the adoption-deed dated
09/12/1953 as an attesting witness. In his examination-in-chief, this
witness has stated that he knew deceased Ramdayal for a very long
time. He stated that Ramdayal (adoptive father) was also adopted son
of Onkarlal. He further stated that he did not recollect the name of
natural father of Ramdayal. He stated that Ramdayal was not blessed
with any issue. He stated that he knew the plaintiff No.1 since the
plaintiff No.1 was around 4 to 5 years old. He stated that Harainarayan
Agrawal (natural father of plaintiff No.1) was brother of Ramdayal.
With respect to adoption-deed at Exh.129 he admitted his signature as
witness No.1. He, however, stated that he signed the said document in
the shop of Ramdayal and that the witness No.2 - Rampal also signed
the document in his presence. He stated that Harinarayan was not
present at the time when he signed the adoption-deed dated
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09/12/1953 and that he did not sign the said document in presence of
Harinarayan. With respect to endorsement on the document
"Harinarayanji Jaipurwale read the adoption-deed and signed it before
us on 09/12/1953" (English Translation). He stated that the said
contents were written by him on instructions of Ramdayal. He also
stated that the rituals of adoption mentioned in the adoption-deed
dated 09/12/1953 were not performed in his presence and that he
never attended the office of Sub Registrar in relation to the said
document. It will be pertinent to mention that in paragraph No.3 of his
examination-in-chief, he stated that the day on which the adoption-deed
was written, Harinarayan was resident of Jaipur but on the said date,
he was present at Kamptee. In the cross-examination, this witness
stated that he met Harinayaran on 09/12/1953 after execution of the
document. He also admitted that the adoption-deed was handed over to
him by Ramdayal for perusal and that he signed the same after reading
and understanding the contents thereof. With respect to the
endorsement below his signature, which is quoted above, he stated that
the contents were correct. This implies that he admitted that
Harinarayan signed the document in his presence. He further stated
that since the year 1953 when plaintiff No.1 was around 4 to 5 years of
age, he was staying with Ramdayal. He admitted that Ramdayal treated
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plaintiff No.1 as his son. He specifically admitted that after 1953
Harinarayan and other persons recognized plaintiff No.1 as son of
Ramdayal.
14. The evidence of wife of the defendant was recorded
through Court Commissioner. She has stated about her relations of their
family with the family of Ramdayal. She stated that her relationship
with plaintiff No.2 was akin to that of real sister and they treated each
other as such. During the course of her cross-examination, the witness
avoided to give categorical answers to questions put to her regarding
status of plaintiff No.1 as adopted son of plaintiff No.2 - Ramdayal.
However, she admitted she had attended the marriage of plaintiff No.1
and that the marriage was performed from the house of plaintiff No.2.
She admitted that plaintiff No.1 was residing at Kamptee ever since he
was 3 to 4 years of age. She has stated that although Harinarayan was
ready to give the plaintiff No.1 in adoption, his wife was not willing.
She also stated that ever since the plaintiff No.1 was brought from
Jaipur to Kamptee, he resided at Kamptee. She however stated that she
was not aware as to whether adoption-deed was executed.
15. The aforesaid pleadings and evidence are with respect to
status of plaintiff No.1 as adopted son of plaintiff No.2 and Ramdayal.
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16. The other contention between the parties is as to whether
the suit properties were properties of joint Hindu Family of Ramdayal or
properties of the Firm Ramchandra Onkarlal, in which, defendant was a
working partner. Whereas it is the case of the plaintiffs that the suit
properties were ancestral properties, the defendant came up with a case
that the suit properties were properties of partnership firm. The said
aspect assumes significance since Ramdayal had executed registered
gift-deed with respect to suit property bearing House No.258 in favour
of defendant on 15/04/1968. The suit is filed seeking a declaration that
gift executed by Ramdayal is not binding on the plaintiffs. The suit is
filed on 15/10/1979. The nature of suit property assumes significance
with respect to substantial question of law framed in the appeal on the
point of limitation.
17. The gift dated 15/04/1968 is not in dispute. The said
document is at Exh.188. Perusal of the gift will indicate that late
Ramdayal had executed the said gift in favour of the defendant. The
document is a registered document. The document recites that the suit
property bearing House No.258 was owned by Ramdayal and that he
was transferring the same in favour of defendant out of love and
affection and also having regard to the fact that the defendant was
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working with Ramdayal as working partner at Gondia shop from the
year 1933-34. The gift-deed is at Exh.188.
18. It will be pertinent to state that prior to execution of the
said gift-deed, the defendant and late Ramdayal had executed an
agreement dated 22/01/1968 (Exh.160). The said agreement makes a
reference to three house properties bearing Nos.258, 260 and 261. The
agreement states that Ramdayal will execute gift-deed with respect to
house property bearing House No.258 in favour of defendant and that
the defendant will vacate the suit property bearing House No.261
within a period of four years from the date of execution of gift-deed
with respect to suit property bearing House No.258. The agreement
specifically recites that the defendant was only a working partner in the
firm in relation to its business at Gondia shop and that properties
forming subject matter of the agreement were absolutely owned by
Ramdayal and further that the defendant had no right over or share in
the suit properties. The sale-deed of the suit property bearing House
No.261 is dated 11/12/1926, which is at Exh.132. The sale-deed of
house property bearing House No.258 is dated 03/12/1931, which is at
Exh.133. It must also be stated that the sale-deed of suit property
bearing House No.258 records that some money payable to the business
concerned was adjusted against the sale consideration for purchase of
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the suit property. However, it is also necessary to state that the
defendant was inducted as a working partner in the year 1933-1934 i.e.
after purchase of the suit property.
19. The defendant has led evidence with respect to books of
accounts of the partnership firm to prove payments of maintenance
charges and property taxes with respect to the suit properties from the
account of the partnership firm. On the basis of this evidence, it is
contended that the suit properties are properties of the firm and not
properties of joint family of the plaintiffs. Apart from this, contention is
also raised that the properties were in fact purchased from the funds of
the partnership firm.
20. The learned Trial Court has decreed the suit. It is held that
the suit properties are ancestral properties of plaintiffs and that the gift
dated 15/04/1968 was executed by Ramdayal without any legal
necessity and as such, it was not binding on the plaintiffs. As regards
the case of adoption, the learned Trial Court has accepted the said case.
It must be reiterated that the plaintiff No.2 had died when the suit was
pending and her name was deleted from the array of the parties on the
ground that the plaintiff No.1 was her sole legal heir. The learned Trial
Court passed a decree for possession with respect to the suit properties
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in favour of the plaintiff No.1 by declaring that the gift-deed dated
15/04/1968 is void.
21. Aggrieved by the aforesaid decree, the defendant preferred
appeal being Regular Civil Appeal No.44/2003. The said appeal came to
be dismissed on 03/04/2007. The learned first Appellate Court has held
that the plaintiff No.1 had proved that he was adopted son of Ramdayal
and plaintiff No.2 and that the suit properties were ancestral properties
of Ramdayal, which were allowed to be occupied by the defendant as
licensee. It was held that the defendant failed to vacate and handover
the suit property No.261 to Ramdayal, which was in breach of
agreement dated 22/01/1968. As regards the gift with respect to suit
property bearing House No.258, the finding of the learned Trial Court
that the gift was without legal necessity and therefore, was not binding
on the plaintiff No.1 is accepted. The defence that the suit properties
were properties of the partnership firm is not accepted by the learned
First Appellate Court.
22. These concurrent decrees are subject matter of challenge in
the present Second Appeal, preferred by some of the legal
representatives of original defendant. The appeal was admitted vide
order dated 26/11/2007 on the following substantial question of law :-
"Whether the Gift Deed Exh.188 is a document which need
not be challenged and by ignoring it a suit on the basis of title for
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recovery of possession, could have been filed within a period of
12 years?
23. The said substantial question of law came to be modified
vide order dated 12/12/2024 and in addition, one more substantial
question of law was framed. Substantial questions of law framed in the
appeal are as under :-
"Whether the suit is/was barred by limitation, wherein
Gift Deed Exhibit 188 executed on 15.04.1968 has been
challenged in the suit dated 15.10.1979?"
"In view of specific pleading in the plaint to the effect
that the original plaintiff No.1 was a natural son of deceased
Ramdayal and the original plaintiff No.2 - Laxmibai, whether
both the Courts below committed an error of law in permitting
the plaintiff to lead evidence on the point of adoption?"
(reformulated)
Substantial Question of law No.1 :-
"Whether the suit is/was barred by limitation, wherein Gift Deed
Exhibit 188 executed on 15.04.1968 has been challenged in the
suit dated 15.10.1979?"
24. Mr. Gilda, learned Senior Advocate for the appellants
vehemently argued that the gift dated 15/04/1968 is a registered
document, executed by Ramdayal. He contends that the execution of gift
is not in dispute. The learned Senior Advocate contended that the prayer
with respect to declaration that the gift is not binding on the plaintiffs is a
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substantive prayer and the prayer for possession is merely a
consequential prayer. The contention of learned Senior Advocate is that
unless declaration with respect to gift-deed is granted in favour of the
plaintiffs, the decree for possession cannot be passed in their favour with
respect to suit property bearing House No.258. The learned Senior
Advocate contends that the gift-deed dated 15/04/1968 is a registered
document and limitation for filing a suit in order to challenge the same
will be governed by Article 58 or 59 of the Limitation Act. He contends
that the limitation under both these Articles is of three years and the
limitation shall commence from the date of registration of the document
i.e. 26/04/1968. Learned Senior Advocate, therefore, contends that the
suit ought to have been filed on or before 25/04/1971.
25. Per contra, Mr. Mehadia, learned Advocate for the
respondents contends that limitation for filing the suit will be governed
by Article 109 of the Limitation Act, which provides limitation of 12
years. His contention is that the suit properties are proved to be ancestral
properties of plaintiff and as such the suit is a suit to challenge alienation
of ancestral property by father, will be governed by Article 109. He
contends that the period of limitation will be 12 years and not 3 years, as
contended by the learned Senior Advocate for the appellants.
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26. Before dealing with rival contentions, it must be recorded
that limitation under Article 109 commences from the date on which the
transferee takes possession of the property, which is subject matter of
alienation. In the present case, it is not in dispute that the defendant was
already in possession of the suit property, (House No.258) prior to the
date of execution of the impugned gift-deed. However, the possession of
defendant as alienee/tranferee will commence from the date of execution
of gift. Prior to the said date, the possession will either be a licensee,
according to the case of the plaintiff or as a partner of the firm according
to the case of defendant. The limitation of 12 years would commence
from the date of execution of gift-deed, if the suit property bearing House
No.258 is held to be ancestral property.
27. The substantial question of law framed in the appeal is
pertaining to limitation to challenge the gift-deed and therefore, question
of limitation arises only with respect to the suit property bearing House
No.258 which is subject matter of the same. It is, therefore, necessary to
first determine the nature of the suit property bearing House No.258. The
sale-deed of House No.258 is dated 03/12/1931. The said document is at
Exh.133. The sale-deed is in the name of Ramdayal. Ramdayal was 18
years old on the date of execution of sale-deed. His age is mentioned as
18 years in the sale-deed. At the relevant time, the age of majority was 21
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years. Ramdayal was represented through his father-in-law, Motilal, as his
guardian. Ramdayal was belonging to a business family.
28. The defendant was inducted as a working partner in the firm
somewhere in the year 1933-34. Thus, as on the date of sale-deed, the
defendant was not a partner in the firm. It will also be pertinent to state
that the defendant was not a partner of the firm in true sense of the term.
He was a working partner in one of the shops of the firm which was run
from Gondia. He joined the business as working partner in the year 1933-
34 i.e. after the sale-deed with respect to suit property bearing House
No.258.
29. It will also be appropriate to refer to the agreement dated
22/01/1968 executed between Ramdayal and defendant. In the light of
special pleading in the written statement.
30. The defendant has stated that while the plaintiff No.1 was
residing with Ramdayal, the Kamptee shop was facing financial distress
and funds from Gondia shop were transferred to the Kamptee shop of the
plaintiff. It is stated that the defendant had not withdrawn his share of
profits from Gondia shop and that Ramdayal desired that the amount
deposited by defendant from Gondia shop should be remitted to him. The
defendant has stated that Ramdayal was under impression that the
plaintiff No.1 would create difficulties in that regard and therefore, he
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came down to Gondia to settle the issue amicably. The defendant has
pleaded that it was decided that Ramdayal would give House No.258 to
the defendant and that the plaintiff No.1 should settle the account and
pay all the money due and payable to the defendant along with interest
to him. It is stated in the written statement that parties agreed that upon
settlement of account, the defendant would vacate House No.261. The
defendant has pleaded that the plaintiff stated that he would require time
of four years to settle monetary claim of the defendant.
31. These averments in the written statement when read along
with agreement dated 22/01/1968 at Exh.160 will reveal that execution
of the agreement is not strictly in dispute. This document is proved in the
evidence of plaintiff and was marked as Exh.160. The defendant has also
proved this document in their evidence, wherein it is marked as Exh.187.
Thus, the document is undisputed document. There is a reference in the
written statement that possession of House No.261 will be delivered upon
settlement of account and that four years period was required by the
plaintiff No.1 for settlement of account.
32. In this context, when one refers to the agreement at
Exh.160, it is seen that Ramchandra Onkarlal is an ancestral business
undertaking of Ramdayal. It is also stated that defendant was inducted as
working partner in the said firm in the year 1933-35. Agreement
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specifically recites that the defendant had no concern with the business
undertaking of the firm at Kamptee and Nagpur and that Ramdayal was
owner of the suit properties bearing House No.258 and 261 as also House
No.260, which are subject matter of said agreement. It is stated that the
defendant has no right over or interest in the suit properties. The
agreement does not refer to settlement of account, as is contended by the
defendant. The agreement, however, speaks about registration of gift-
deed of House No.258 in favour of defendant and that within a period of
four years from the date of execution of gift-deed with respect to House
No.258 the defendant shall handover vacant possession of House No.261
to Ramdayal. The gift-deed also refers to House No.258 as property of
Ramdayal. The defendant has accepted gift of House No.258 from
Ramdayal. The defendant, therefore, cannot claim that the properties are
properties of the firm. The account entries, which are exhibited during
the course of evidence, will only demonstrate that taxes with respect to
suit property were paid by the firm and the firm also incurred expenses
towards minor repairs of the suit house. The account entries by
themselves cannot be treated substantive evidence to infer that the
properties are properties of the firm. It will be pertinent to state that with
respect to gift-deed dated 15/04/1968 the defendant has stated that
words "ancestral property" were incorporated in the said document under
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legal advice by plaintiff No.1. It is also stated that Ramdayal exerted
pressure on the defendant to admit that the property was an ancestral
property.
33. The learned Courts have considered the evidence in the form
of account entries and evidence in the form of agreement, registered gift
and sale-deeds of the suit properties to arrive at conclusion that the suit
properties are not properties of the firm. The findings recorded by the
learned Courts in this regard are findings of facts based on appreciation
of evidence. These findings of facts which are based on appreciation of
evidence cannot be interfered with in Second Appeal. It must however be
stated that the evidence in the form of agreement executed between
Ramdayal and defendant and gift executed by Ramdayal which is
accepted by defendant will obviously have primacy over the account
entries. The books of accounts, as is well settled are not substantive piece
of evidence. It must also be stated that sale-deeds with respect to both the
suit properties are prior to the date on which the defendant joined the
firm as working partner. The suit properties are therefore not properties
of the firm as contended by the defendant.
34. Next issue is to be considered as to whether the suit
properties are ancestral properties or separate properties of Ramdayal. If
the suit property is separate property of Ramdayal, he will have absolute
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right to gift the same to the defendant and in such situation, the plaintiffs
will not have right to challenge the gift. Even if, the plaintiffs were to
challenge the same, the limitation for challenging the same would be
three years, if the property is held to be property of Ramdayal. However,
if the property is held to be ancestral property, the limitation will be
governed by Article 109 and 12 years limitation will be available from the
date of defendant holding possession of the suit property as an
alienee/transferee.
35. It is not therefore necessary to consider as to whether the
suit property is an ancestral property. The evidence on record clearly
establishes that Ramdayal belonged to a business family. The business of
'Bidi' manufacturing and sale was an ancestral business of Ramdayal's
family. The suit properties were acquired when Ramdayal was a minor.
He was 13 and 18 years old when suit properties bearing House Nos. 258
and 261 were purchased in the years 1931 and 1926 respectively. It is
obvious that at this tender age of 13 and 18 years, he did not have any
separate income. On the contrary, there is overwhelming evidence and it
is almost undisputed that he was possessed the ancestral funds acquired
from ancestral business. The sale-deed dated 11/12/1926 (Exh.132) for
House No.261 and sale-deed dated 03/12/1931 (Exh.133) pertaining to
House No.258 are sufficient to infer that the properties are ancestral
SA 567 of 2007 - Judgment.odt
properties.
36. The finding by both the learned Courts that the properties
are ancestral properties therefore does not warrant any interference.
37. Since the properties are ancestral properties, limitation for
recovery of possession of suit property bearing House No.258, which is
subject matter of the gift-deed will be 12 years. The gift-deed is dated
15/04/1968. It is registered on 26/04/1968. The suit is filed on
15/10/1979 within a period of 12 years. The suit is obviously filed within
limitation. It will be pertinent to state that substantial question of law
with respect to limitation is pertaining to suit property bearing House
No.258, which is subject matter of gift and not with respect to the other
suit property bearing House No.261, which is not subject matter of suit. It
must however be stated that as per the agreement dated 22/01/1968 at
Exh.160 and 187, the defendant had agreed to deliver possession of suit
property bearing House No.261 within a period of four years from the
date of execution of gift-deed, which was executed on 15/04/1968. Time
for delivery of possession of House No.261 expired on 15/04/1972. The
suit is also within limitation with respect to the suit property.
38. In the light of the reasons recorded above, first substantial
question of law pertaining to limitation is answered in favour of the
plaintiffs and against the appellants/legal representatives of original
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defendant.
Substantial Question of Law No.2 :-
"In view of specific pleading in the plaint to the effect that
the original plaintiff No.1 was a natural son of deceased
Ramdayal and the original plaintiff No.2 - Laxmibai, whether
both the Courts below committed an error of law in permitting
the plaintiff to lead evidence on the point of adoption?"
39. Mr. Gilda, learned Senior Advocate for the appellants, has
vehemently argued that the evidence of plaintiffs with respect to alleged
adoption is inadmissible in the absence of pleadings. He argues that the
evidence is in fact contrary to the pleadings. Drawing attention to
paragraph Nos.1 and 6 of the plaint, he argues that the case of plaintiffs
is not that the plaintiff No.1 is adopted child of Ramdayal and plaintiff
No.2. He contends that the pleadings in the plaint suggest that plaintiff
No.1 is natural son of Ramdayal and plaintiff No.2. The learned Senior
Advocate then draws attention to evidence and contends that in the
evidence the stand is altered and a case of adoption is set up. He
vehemently argues that an adverse inference should be drawn against the
plaintiffs since their evidence is not in accordance with pleadings. He has
placed reliance on the judgments in the case of Abubakar Abdul
Inamadar (Dead) by LRS. and others Vs. Harun Abdul Inamdar and
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others, reported in (1995) 5 SCC 612; Rajgopal (Dead) by LRS. Vs.
Kishan Gopal and another, reported in (2003) 10 SCC 653; Biraji Alias
Brijraji and another Vs. Surya Pratap and others , reported in (2020) 10
SCC 729 and Niwas Builders Vs. Chanchalaben Gandhi, reported in 2003
(3) Mh.L.J. 312 in support of his contention.
40. Per contra, Mr. Mehadia, learned Advocate for the
respondents/original plaintiffs argues that the defendant was a close
associate of Ramdayal. He contends that the defendant was well aware
about the fact that the plaintiff No.1 is adopted son of Ramdayal and
plaintiff No.2 and therefore, even in the absence of a positive statement
in the plaint with respect to adoption, the defendant has made a positive
statement with respect to plaintiff's status as adopted son of Ramdayal
and plaintiff No.2 in the written statement. Mr. Mehadia further contends
that the overall reading of the written statement will indicate that
although at two places while responding to paragraph Nos.1 and 6 it is
denied that plaintiff No.1 is son of Ramdayal and plaintiff No.2, at several
other places there is implied admission in the written statement with
respect to plaintiff No.1 being son of Ramdayal and plaintiff No.2.
41. Without prejudice to the contention, Mr. Mehadia further
argues that in case where parties are aware about the rival cases and lead
evidence accordingly, then evidence brought on record cannot be
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discarded for want of pleadings. His contention is that test of prejudice
has to be applied in order to consider as to whether the evidence can be
admitted or not. Mr. Mehadia draws attention to issue No.1 and contends
that the learned Trial Court had framed a specific issue with respect
status of plaintiff No.1 as son of late Ramdayal and plaintiff No.2 and
both parties have led evidence on the said issue. The learned Advocate
further contends that attesting witness to the adoption-deed is examined
as a witness by the defendant and as such, the defendant cannot contend
that evidence with respect to adoption is inadmissible for want of
pleadings.
42. With the able assistance of the learned Advocates, I have
perused the rival pleadings and also evidence brought on record. I have
also perused the evidence and other documents with the assistance of the
learned Advocates.
43. It is true that there is no positive statement in the plaint that
the plaintiff No.1 is adopted son of Ramdayal and plaintiff No.2.
However, it is equally true that the aspect of adoption is introduced in the
pleadings by the defendant in his written statement. The learned Trial
Court has framed a specific issue on the point of adoption and both
parties have led evidence on this issue. The plaintiff had led evidence
with respect to adoption by examining his natural father and one more
SA 567 of 2007 - Judgment.odt
individual, who was present while the rituals of adoption were being
observed. The defendant has also joined the issue by leading evidence of
attesting witness to the adoption-deed. The defendant had a longstanding
association with Ramdayal and his family. The defendant was working
partner of Ramdayal since the year 1933-34. Prior to that he was working
with Ramdayal as his accountant. The evidence of defendant's wife will
indicate that the families of the plaintiffs and defendant were close and
there was a deep personal bond between the two families. She has stated
that her relationship with plaintiff No.2 was like that of real sister. She
has attended the marriage of plaintiff and almost all functions in the
family of Ramdayal. Whereas there cannot be any dispute with respect to
general legal proposition that evidence without pleadings is not
admissible and further that the evidence must be in accordance with
pleadings, this general rule of pleadings is not of universal application.
The rule is subject to exceptions. In cases where the parties join an issue
in the absence of pleadings and lead evidence on such issue being fully
aware about rival cases, the contention that such evidence is led without
pleadings and is therefore, inadmissible cannot be entertained. The test
of such cases will be whether any prejudice is caused for want of
pleadings. Reliance in this regard can be placed safely on the judgment of
the Hon'ble Supreme Court in the case of Bhagwati Prasad Vs.
SA 567 of 2007 - Judgment.odt
Chandramaul, reported in AIR 1966 SC 735. Relevant observations of the
Hon'ble Supreme Court in paragraph 10 of the judgment are reproduced
herein below for ready reference:-
"10. But in considering the application of this doctrine to the
facts of the present case, it is necessary to bear in mind the other
principle that considerations of form cannot over-ride the
legitimate considerations of substance. If a plea is not
specifically made and yet it is covered by an issue by implication
and the parties knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from relying
upon it if it is satisfactorily proved by evidence. The general rule
no doubt is that the relief should be founded on pleadings made
by the parties. But where the substantial matters relating to the
title of both parties to the suit are touched, though indirectly or
even obscurely, in the issues, and evidence has been led about
them, then the argument that a particular matter was not
expressly taken in the pleadings would be purely formal and
technical and cannot succeed in every case. What the Court has
to consider in dealing with such an objection is : did the parties
know that the matter in question was involved in the trial and
did they lead evidence about it ? If it appears that the parties did
not know that the matter was in issue at the trial and one of
them has had no opportunity to lead evidence in respect of it,
that undoubtedly would be a different matter. To allow one party
to rely upon a matter in respect of which the other party did not
lead evidence and had had no opportunity to lead evidence,
would introduce considerations of prejudice, and in doing justice
to one party, the Court cannot do injustice to another."
SA 567 of 2007 - Judgment.odt
44. In view of the written statement filed by the defendant and
also having regard to the fact that both sides have lead evidence on the
point of adoption pursuant to issue in that regard being framed by the
learned Trial Court, the second substantial question of law will also have
to be answered in favour of the respondent/plaintiff. This is more so
because the parties knew each other since long before filing of the suit
and were in fact doing business together and also had deep rooted family
connections over a period of years.
45. Although substantial question of law in this regard is not
framed, Mr. Gilda, learned Senior Advocate for the appellants advanced
submissions with respect to legality of the adoption and urged to frame a
substantial question of law on the said aspect. The learned Senior
Advocate contended that a child can be given in adoption by both his
parents and that either one of the two parents does not have authority to
give the child in adoption. He contends that similarly the child is required
to be taken in adoption by the adoptive father and mother both and
acceptance of adoption by any one of them is not permissible. The
contention is that in the case at hand, adoption-deed is executed only by
Harinarayan, the biological father, and that although Rukhminibai, the
natural mother of the plaintiff No.1, was allegedly present, she has not
executed the adoption-deed. He, therefore, contends that evidence on
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record is insufficient to infer consent of mother and as such the alleged
adoption is void.
46. It is true that adoption-deed dated 09/12/1953 is executed
only by natural father of plaintiff No.1. The natural mother has not
executed the said document. It will however be pertinent to state that the
natural father has entered the witness box. He has categorically deposed
that he and his wife were present in the adoption ceremony that was held
on 09/12/1953 and that they had given the plaintiff No.1 in adoption to
the plaintiff No.2 and her husband together by placing him on their lap.
He has stated that all the rituals were observed with respect to adoption.
47. I have perused the cross-examination of natural father of
plaintiff No.1. His testimony on the point of adoption is not shaken
during the course of cross-examination. Suggestion with respect to
consent of plaintiff No.2 was given to this witness, which he has denied.
Likewise, suggestion was given that natural mother was not present at
Kamptee during the function of adoption is also denied by this witness.
48. The said line of cross-examination gives rise to an inference
that the factum of performance of rituals with respect to the adoption is
not seriously disputed. There is no positive suggestion to this witness in
his cross-examination that the plaintiff No.1 was never given in adoption
and that the necessary rituals in that regard were never observed. The
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contention that the adoption is void since it is without consent of the
natural mother therefore does not give rise to any substantial question of
law. It will be pertinent to state that although contention with respect to
adoption of the plaintiff No.1 is raised in the written statement, it is not
the case of the defendant that the adoption is void since it was without
consent of natural mother or adoptive mother i.e. plaintiff No.2.
49. The findings recorded by the learned Courts on this aspect
are proper and are recorded by taking into consideration the entire
evidence.
50. Apart from this, Mr. Gilda, learned Senior Advocate contends
that the evidence on record is insufficient to infer that ceremonies and
rituals with respect to adoption were followed in accordance with the
established customs in order to hold that adoption is a valid adoption.
The learned Senior Advocate has placed strong reliance on the judgment
of the Hon'ble Supreme Court in the case of Shri Kishori Lal Vs. Mst.
Chaltibai, reported in AIR 1959 SC 504. He contends that burden to
prove valid adoption is a heavy burden, which is required to be
discharged by a person, who sets up a case of adoption. He draws
attention to evidence of plaintiff's natural father and contends that
whereas he has deposed that Datta Homam was performed, P.W.-4 who
had allegedly attended the adoption ceremony, merely deposed that Pooja
SA 567 of 2007 - Judgment.odt
was performed and that the said witness did not depose about Datta
Homam was performed. He contends that there is a material
contradiction in the evidence of said witnesses. Mr. Gilda, learned Senior
Advocate further argues that further evidence with respect to adoption
such as invitation cards published on the occasion, expenses incurred for
the ceremony, photographs etc. have not been placed on record and as
such, the factum of adoption is also not proved. Apart from this, a
contention is raised that the ceremony with respect to adoption was
never performed. Reliance in this regard is placed on the adoption-deed
dated 09/12/1953 to contend that the said document itself indicates that
the ceremonies were not performed and were to be performed. Mr. Gilda,
learned Senior Advocate contends that in the absence of any independent
witness with respect to ceremony, the findings by the learned Courts with
respect to adoption are liable to be reversed.
51. Per contra, Mr. Mehadia vehemently argues that the natural
father and another witness are examined in order to prove the adoption.
He contends that the natural father has deposed that Datta Homam was
performed, which is referred by Pooja by PW-4. He contends that this
cannot be treated as a material contradiction. He further contends that
the adoptive mother of plaintiff No.1 is the plaintiff No.2, who has joined
the adoptive son in filing the suit. He also draws attention to the
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succession certificate with respect to shares and bank accounts of
deceased Ramdayal which was obtained in the joint name of plaintiff
Nos.1 and 2. Referring to the evidence with respect to last rites of
Ramdayal and plaintiff No.2, Mr. Mehadia contends that there is
overwhelming evidence on record to indicate that the adoptive father and
mother always treated plaintiff No.1 as their son. He further refers to the
evidence of natural father and contends that, even the family in which
the plaintiff No.1 was born, treated him as son of Ramdayal and plaintiff
No.2. Learned Advocate places strong reliance on the judgment of the
Hon'ble Supreme Court in the case of L. Debi Prasad (dead) by L.Rs. Vs.
Smt. Tribeni Devi and others, reported in AIR 1970 SC 1286, wherein the
Hon'ble Supreme Court has held that formal giving and taking of son is
essential to establish the case of adoption. It is, however, held that in case
where the adoptive parents and natural parents considered the adopted
child, the adoption is valid and treat the adopted child as such. This by
itself is a very strong circumstance to hold that the adoption is a valid
adoption.
52. I have considered the rival submissions as aforesaid. I am
not in agreement with Mr. Gilda, the learned Senior Advocate on this
aspect. The evidence on record by plaintiff's natural father and PW-4
clearly indicates that ceremony was in fact performed on 09/12/1953.
SA 567 of 2007 - Judgment.odt
Both the witnesses have stood test of cross-examination. The statement of
natural father in his evidence with respect to fact of adoption has gone
unchallenged in his cross-examination. Suggestions are given that the
natural mother and adoptive mother did not consent. However, he had
denied the suggestions. There is overwhelming evidence on record to
believe the testimony of this witness. This witness has executed adoption-
deed on 09/12/1953. It is duly proved that all throughout after his
adoption, plaintiff No.1 has stayed at Kamptee along with his adoptive
parents. The evidence on record establishes that he has performed last
rites of both the adoptive parents. His marriage is performed by adoptive
parents. Succession certificate with respect to shares and bank account of
deceased Ramdayal is also jointly obtained by the plaintiff Nos.1 and 2.
Most importantly the plaintiff Nos. 1 and 2 have filed present suit stating
their relationship as son and mother which is an overwhelmingly strong
circumstance to infer that the adoption was with her consent.
53. The defendant had participated in business with the plaintiff
No.1 which is a fact evident from specific pleadings in the written
statement. After a period of around 18 years from the execution of
adoption-deed dated 09/12/1953, the adoptive father has executed a
registered declaration of adoption on 12/07/1971 (Exh.135). The
contention with respect to consent of adoptive and natural parents is,
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therefore, liable to be rejected.
54. It will also be important to refer to the evidence of
defendant's witness Ramkrushna, who is attesting witness to the
adoption-deed dated 09/12/1953. He has initially stated in his
examination-in-chief that he has signed the said document in the shop of
Ramdayal and not in the office of the Sub Registrar. He also stated that
the natural father Harinarayan did not sign the document in his presence.
However, in his further examination-in-chief, he admitted that
Harinarayan was at Kamptee on the day on which the document dated
09/12/1953 was executed. He also stated that he met Harinarayan on
09/12/1953 after execution of the document. He admitted that Ramdayal
treated the plaintiff No.1 as his adopted son and likewise all persons
dealing with plaintiff No.1 treated him as adopted son. He has admitted
that on the day on which adoption-deed dated 09/12/1953 was
executed, the plaintiff No.1 was also at Kamptee and also he was 3 years
old at that time. All this material on record is sufficient to establish that
the plaintiff No.1 was adopted son of Ramdayal and plaintiff No.2.
55. In the case of Kishorilal Vs. Chaltibai, (supra) the plaintiff
(Chaltibai) was widow of one, Lakshminarayan. The defendant
(Kishorilal) claimed to be adopted son of Lakshminarayan. Chaltibai, the
widow of alleged adoptive father, filed suit against the alleged adoptive
SA 567 of 2007 - Judgment.odt
son, seeking declaration that she had become owner of the suit
properties, being widow of her husband i.e. the alleged adoptive father
and for possession of the suit properties. The dispute thus was between
natural heir and a person claiming to be a legal heir by virtue of
adoption. There was no formal deed of adoption in the said case.
Likewise, it was found by the Hon'ble Supreme Court that oral evidence
of the witnesses who deposed on the fact of adoption was not only
insufficient but also self-contradictory. The facts of present case are
different. There is a registered deed of adoption executed by the natural
father. The adoptive father had also executed a registered deed of
declaration of adoption. Moreover, the oral evidence of the natural father
and one person who has attended the adoption ceremony is also
recorded. Attesting witness to the adoption deed is examined by the
defendant as his witness. The evidence gives a clear inference that not
only the natural and adoptive parents of plaintiff No.1 and all the persons
associated with them, but the defendant also recognized the plaintiff
No.1 as adopted son of Ramdayal and plaintiff No.2 and dealt with him
as such. In the present case, the natural heir i.e. widow of Ramdayal
herself has joined the suit against the defendant, appellant herein. The
defendant is also not natural heir of Ramdayal. In view of the aforesaid
distinguishing features Chaltibai (supra) will not be applicable to the
SA 567 of 2007 - Judgment.odt
present case.
56. In the case of L. Debi Prasad (supra) the Hon'ble Supreme
Court has held that although giving and taking in adoption is required to
be necessarily proved in order to establish valid adoption, but there is no
particular form for completing the said process of giving and taking in
adoption. Likewise it is also held that when transaction of adoption is old,
it is natural that human memory will fade and in such situation the
conduct of adoptive father qua the adopted son assumes great
significance. Relevant observations of the Hon'ble Supreme Court in
paragraph Nos.8 and 10 are quoted herein below for ready reference :-
"8. That is also the view expressed in Mayne's Hindu Law
wherein it is observed that the giving and receiving ate
absolutely necessary to the validity of an adoption; they are
the operative part of the ceremony, being that part of it which
transfers the boy from one family to another; but the Hindu
Law does not require that there shall be any particular form
so far as giving and acceptance are concerned; for a valid
adoption all that the law requires is that the natural father
shall be asked by the adoptive parent to give his son in
adoption, and that the boy shall be handed over and taken for
this purpose.
10. In the case of all ancient transactions, it is but natural
that positive oral evidence will be lacking. Passage of time
gradually wipes out such evidence. Human affairs often have
to be judged on the basis of probabilities. Rendering of justice
SA 567 of 2007 - Judgment.odt
will become impossible if a particular mode of proof is
insisted upon under all circumstances. In judging whether an
adoption pleaded has been satisfactorily proved or not, we
have to bear in mind the lapse of time between the date of the
alleged adoption and the date on which the concerned party
is required to adduce proof. In the case of an adoption said to
have taken place years before the same is questioned, the
most important evidence is likely to be that the alleged
adoptive father held out the person claiming to have been
adopted as his son; the latter treated the former as his father
and their relations and friends treated them as father and son.
There is no predetermined way of proving any fact. A fact is
said to have been proved where after considering the maters
before it, the Court either believes it to exist or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists. Hence if after taking an overall view
of the evidence adduced in the case, we are satisfied that the
adoption pleaded is true, we must necessarily proceed on the
basis, in the absence of any evidence to the contrary, that it is
a valid adoption as well."
57. In the peculiar facts of the present case, I am inclined to
accept the case of adoption and validity thereof set up by the plaintiffs.
58. No substantial question of law arises for consideration with respect
to sufficiency of proof of adoption and/or legality thereof.
59. Second Appeal is, therefore, dismissed with no order as to costs.
SA 567 of 2007 - Judgment.odt
CIVIL APPLICATION (CAS) NO.353/2026
60. The present application is filed under Order VI Rule 17 of
the Code of Civil Procedure, seeking amendment of written statement.
61. The application is strongly opposed by the respondent No.1.
It is contended that the written statement is filed way back on
15/12/1980 and now after a period of 46 years, the defendant cannot be
allowed to amend the written statement.
62. Perusal of the schedule of proposed amendment will indicate
that the defendant seeks to contend that document of adoption dated
09/12/1953 is not a deed of adoption but an agreement to take plaintiff
No.1 in adoption.
63. Perusal of written statement will indicate that such a stand
was never taken by the defendant. Such a case is also not set up during
the course of evidence. In the considered opinion of this Court, the
defendant cannot be allowed to take such a stand for the first time in the
second appeal and that too at the stage of final hearing. The contention is
also contrary to terms of the adoption deed.
64. It must be reiterated that the adoption-deed dated
09/12/1953 is not the only evidence with respect to adoption. In fact, the
adoption of plaintiff No.1 is by following customary rituals which are
SA 567 of 2007 - Judgment.odt
duly proved. Likewise the adoptive father has also executed document of
declaration of adopted dated 12/07/1971. The evidence also suggests
that the defendant also dealt with the plaintiff No.1, during the course of
business of Gondia Shop as can be seen from his pleadings with respect to
agreement dated 22.01.1968 and settlement of accounts. These aspects
have been dealt with while dealing with the appeal.
65. In view of the aforesaid, Civil Application for amendment of
written statement stands rejected.
(ROHIT W. JOSHI, J.)
At this stage, the learned Advocate for the appellants makes
a motion to grant stay to the present judgment for a period of ten weeks
in order to enable the appellants to approach the Hon'ble Supreme
Court.
In the present appeal, this Court has confirmed two
concurrent decrees passed against the appellants. The dispute in this
case principally revolves around adoption of plaintiff No.1, which is
proved by cogent evidence, as can be seen from the judgment. The suit
is filed in the year 1979 and it was decreed in the year 2003 and still
the plaintiffs are unable to reap the fruits of decree. In view of the
aforesaid, the request for grant of stay is rejected.
(ROHIT W. JOSHI, J.)
Wadkar/Tanmay/Khapekar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 15/05/2026 14:33:20
