Dr. Ram Kumar Khandelwal vs Smt. Chandan Gupta & Anr.
2011 Latest Caselaw 746 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RFA No.407/1995

%                                                       8th February, 2011


DR. RAM KUMAR KHANDELWAL                                               ...... Appellant
                                         Through:    Mr. Praveen Jain, Advocate


                            VERSUS



SMT. CHANDAN GUPTA & ANR.                                           ...... Respondents

Through: None

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under section 96 Code

of Civil Procedure, 1908 is to the impugned judgment and decree dated

26.5.1994 whereby the suit for partition, filed by Sh. Vishnu Swarup Gupta-

plaintiff (predecessor in interest of the respondents 1 to 5), of the property

no.526-527, Kucha Pati Ram, Bazar Sita Ram, Delhi-6, was decreed by

holding that the property in question had to be partitioned between the

two branches of the sons of late Lala Lallemal who owned the property,

one son being the plaintiff-Vishnu Swarup Gupta. By the impugned

judgment and decree the third branch of Lala Lallemal i.e. his son Sh. Inder

Narain, now represented by the appellant, has been denied any share in

the subject property. The trial court has held that appellant was not the

adopted son of Late Sh. Inder Narain and Munni Devi and therefore the

appellant could not lay claim to 1/3rd share in the subject property.

2. I may note that though there were originally 13 defendants in the suit,

some of whom filed their defences and some did not, however, ultimately,

everyone was proceeded ex-parte except the appellant who was arrayed

as defendant no.13, and thereafter shown as defendant no.12, and who

only contested the case.

3. The only issue which is relevant for determination of the present appeal is

whether the appellant is the adopted son of Smt. Munni Devi widow of Late

Sh. Inder Narain. The trial court has while dealing with this aspect held that

the appellant was not the adopted son of Smt. Munni Devi. The relevant

discussion by the trial court on this aspect is contained in paras 10 to 14 of

the impugned judgment and which read as under :

"10. These three issues are taken up together for decision as they can be conveniently dispose of by a common discussion of facts and in law. These issues arose out of the amended pleadings of the parties as has been noticed above, this is a suit for partition of the suit property which admittedly was owned by late Lala Lallemal. There is

no dispute that out of the four sons of late Lallemal one Baij Nath was given in adoption and one son (Inder Narain) died leaving behind his widow, Munni Devi, alone as they did not have any child. It is also not in dispute that after the death of Lall Lallemal the suit property devolved upon his two sons, Dr. Hari Ram and Sh. Sri Ram and Munni Devi, widow of his third son, Inder Narain in equal shares i.e. 1/3rd share each.

11. I would like to mention here that in the original plaint dated 27.11.1981 Vishnu, Swarup had pleaded that Munni Devi died leaving behind defendant no.13 (Dr. Ram Kumar0 as her legal heir and he had relinquished his 1/3 rd share in the suit property which he had as a legal heir of Munni Devi, however, subsequently Vishnu Swarup had moved an application under Order 6 Rule 17 CPC and Order 1 Rule 10 CPC alleging that he had impleaded defendant no.13 (Dr. Ram Kumar) under the misconception of fact and law that he (Dr. Ram Kumar) was the adopted son of Smt. Munni Devi whereas in fact he was never legally taken in adoption by Munni Devi and also a prayer was made in the said application for delete the name of Dr. Ram Kumar Khandelwal (present defendant no.12) and for permission make consequential amendment in the plaint to the effect that Muni Devi had died intestate. This application was opposed by Dr. Ram Kumar on the ground that the plaintiff could not be allowed to withdraw his admission that he (Dr. Ram Kumar) was the legal heir of Munni Devi. This application was disposed of by a consent order dated 20.9.85 to the effect that Dr. Ram Kumar was to remain a defendant in the suit but he was to prove his having been lawfully adopted by Munni Devi and accordingly Dr. Ram Kumar has adduced evidence in support of his claim to the suit property to the extent of 1/3rd share on the ground that he is the adopted son of late Munni Devi.

12. Dr. Ram Kumar (defendant no.12) examined himself as D-12-W1 and he deposed that on 13.1.1948 his adoption ceremony was solemnized at Lucknow when his natural parents, late Shri Bai Nath and Smt. Annapurna Devi had given him in adoption to Smt. Muni Devi and that at that time, late Lallemal two elder brothers of his real father, Shri Sri Ram and Shri Hari Ram, Krishan Swarup son of Sri Ram Bishamber Nath and Smt. Subhandra Devi, the sister of his adoptive mother and Suraj Kumar his real brother were

present. Defendant no.12 also deposed that Munni Devi was authorized by her husband late Sh. Inder Narain to take in adoption a male child. Defendant no.12 also examined his real brother Sh. Suraj Kumar Khandelwal as D-12-W-2 who deposed that on 13.1.1948 the adoption ceremony took place at Lucknow in the house of Shri Anand Behari Lal Khandelwal who was the maternal uncle of Munni Devi and that at that time Lala Lallemal, Sri Ram, Hari Ram, Anand Behari, his wife, Suraj Bhan and his wife and many others were also present. In his cross-examination, defendant no.12 stated that no adoption deed was executed about his alleged adoption. He also stated that he was not even born when the alleged permission to Munni Devi by her husband to adopt a child was given. D-12-W-1 and D-12-W-2 denied that suggestion put to them in their cross-examination that no adoption ceremony ever took place. As far as the statement of D-12-W-2 is concerned it is of no help to defendant no.12. Since he did not even state as to whether the essential ceremony of giving and receiving defendant no.12 in adoption was performed. In fact, D-12-W-2 does not even say that the natural parents of defendant no.12 were present on 13-1-1948. Defendant no.12 had pleaded in his written statement that the adoption ceremony was witnessed by Dr. Chander Bhan Rawat and many other friends. Neither Dr. Chander Bhan nor any other independent witness has been produced by the defendant no.12 to corroborate the plea of his adoption by Munni Devi. Defendant no.12 had also pleaded in the written statement that Munni Devi also had herself admitted in her will about his adoption. This averment on the face of it is incorrect as defendant no.12 has alleged that the factum of his adoption was evident from the will of Munni Devi which was registered on 12.1.1939 whereas adoption ceremony is alleged to have taken place in 1948. Defendant no.12 had also stated in his reply to the above referred amendment application moved by late Vishnu Swarup that in the Municipal Records his name had been recorded as the adopted son of Munni Devi. However, no such record has been proved. Even the alleged permission given to Munni Devi by her husband to take in adoption male child has not been proved. Defendant no12 has not stated as to how he came to know about the said permission when he himself says in his cross-examination that he was not even born when late Inder Narain had given the permission to Munni Devi to adopt a child. On the other hand late Shri Vishnu

Swarup in his examination in chief as PW-1 had stated that Munni Devi had dies intestate without any issue. In his cross examination by defendant no.12 the suggestion which was put to him was that defendant no.12 was treated by Munni Devi as her son since he was of the age of one year. This suggestion was put to PW-1 that defendant no.12 was adopted by Munni Devi. I am, therefore, of the view that defendant no.12 has failed to prove that he was adopted by late Munni Devi.

13. ......

14. As a result of my above discussion, I have come to the conclusion that after the death of late Lal Lallemal, the original owner of the suit property, his two sons namely Dr. Hari Ram Gupta and Sri Ram and Munni Devi, widow of his third son Shri Inder Narain, inherited the same. After the death, these three persons the legal heirs of Dr. Hari Ram Gupta and Sri Ram inherited the suit property, Munni Devi having dies issueless and these being no claimant of her share. Since the suit property is now being partitioned, the legal heirs of late Dr. Hari Ram Gupta i.e. the original plaintiff Shri Vishnu Swarup, who is now being represented by present the plaintiff and defendant no.1 to 3 collectively get ½ share and the legal heirs of late Sri Ram i.e. defendants no.4 to 11 also get ½ share in the suit property which is to be partitioned accordingly. " (Emphasis added)

4. A reference to the aforesaid paras shows that admittedly there is no

Adoption Deed. The trial court has referred to the inadequacies in the

testimonies in the witnesses of the appellant and held that it is not proved

that the appellant was adopted by Smt. Munni Devi widow of Late Sh. Inder

Narain. The trial court has referred to the fact that the appellant claimed

that Late Sh. Inder Narain had given permission to Smt. Munni Devi to

adopt a child, however, the appellant was not even born when the alleged

permission was said to have been given by Late Sh. Inder Narain to Smt.

Munni Devi. I have also gone through the statement of appellant recorded

as D12W1 and I do not find a specific statement that there was deposition

to the necessary aspect of acceptance of adoption by the adoptive mother

i.e. giving was stated but taking in adoption was not deposed to. All that is

stated on behalf of the appellant is that his natural father Baij Nath and his

natural mother Annapurna Devi gave him in adoption to Smt. Munni Devi.

In law, before an adoption is proved, it is necessary that either there is an

adoption deed or clear cut evidence that there is a giving and taking

ceremony. The deposition of appellant shows that there is nothing

deposed with respect to his being taken in adoption and only giving in

adoption has been mentioned.

5. In any case, the issue regarding adoption can and will be decided on the

aspect that if really the appellant was the adopted son of Smt. Munni Devi

there would have been plethora of documentary evidence to show that the

appellant was the adopted son. The first and foremost thing which comes

in the mind are the school certificates and the school records which would

have shown the appellant to be the adopted son of Smt. Munni Devi.

Admittedly, the appellant has not filed a single document of the school

records to show that the appellant was shown to be the son of Late Sh.

Inder Narain and Smt. Munni Devi in those records. I may note that

appellant is a well educated person and in fact is a professor. The

appellant could have therefore also filed records of his graduation and

post-graduation, and in which records again his parentage being of Late

Sh. Inder Narain and Smt. Munni Devi would have been shown if he really

was the adopted son of Munni Devi widow of Inder Narain. Again not a

single document in this regard has been filed. I am sure that besides the

aforesaid documentary evidence, there also can be different types of

documentary evidence to establish adoption, however, no such evidence

has been filed. The learned counsel for the appellant relied on the

following documentary evidence to contend that the same are

documentary proof of adoption. The first document is a summon issued by

the High Court of Allahabad in which the appellant is shown as the son of

Late Sh. Inder Narain. The second document on which reliance is placed is

a letter (only a photocopy) from the municipality of Kanpur addressed to

the appellant as the son of Smt. Munni Devi. First of all, both these

documents have not been proved in evidence. These documents are not

exhibited documents. These documents therefore cannot be relied upon as

evidence by the appellant to contend that this should be taken as proof of

adoption. The trial court has duly noted that the second document was not

proved. In any case, even assuming for the sake of arguments if we look

into these documents, I do not think that mentioning of the appellant as

the son of Late Sh. Inder Narain and Smt. Munni Devi in such documents

can lead to a necessary conclusion that the appellant was the adopted son

of Late Sh. Inder Narain and Smt. Munni Devi. I have already stated above,

that an adopted son will have more than enough clinching documentary

evidence from various records to show that the appellant was the adopted

son of Late Sh. Inder Narain and Smt. Munni Devi. As already referred to

above, no document which can be given necessary weightage to prove

adoption has been filed by the appellant.

6. Learned counsel for the appellant argued that the predecessor in interest

of the respondents 1 to 4, namely the plaintiff, in his plaint and replication

had quite clearly admitted the appellant as the legal heir of Smt. Munni

Devi and thus adoption need not have been proved. It is contended on

behalf of the learned counsel for the appellant that these admissions in

themselves in the judicial records are itself good enough to hold that no

further proof was required to show that the appellant was the adopted son

of Smt. Munni Devi. I note that in the plaint, there is no specific mention of

the expression adoption and what is only stated in the plaint is that the

appellant is the legal heir of Smt. Munni Devi. Secondly, the plaintiff,

predecessor in interest of respondents 1 to 4, specifically filed during the

pendency of the suit, an application under Order 6 Rule 17 for withdrawing

his admission that appellant/defendant no.13 was not legally taken in

adoption by Smt. Munni Devi and which was allowed by a consent order. I

may note that the application under Order 6 Rule 17 filed by the erstwhile

plaintiff was disposed of by the trial court vide its order dated 20.9.1985 in

which it was held as under :

"20.9.85

Present : Counsel for the parties.

Heard on the application under order 1 rule 10 read with order 6 rule 17 and sec. 151 CPC, moved by the plaintiff seeking deletion of deft. no.13 Shri R K Khandelwal from the array of defendants.

Plaintiff in his plaint had pleaded that lala Lalle Mal had four sons one of whom i.e. Baij Nath had gone away in adoption to some other family. Inder Narain another son had died in 1920 leaving behind his widow Munni Devi who also died in 1967 leaving behind deft. no.13 as her L.R. At another place the plaintiff had pleaded that this deft no.13 had relinquished his 1/3rd share in the joint family property. By filing the present application plaintiff wants to delete name of deft no.13 by pleading that the facts pleaded about deft no.13 being L.R. of late Smt. Munni Devi were so pleaded under some mis-conception of facts and law.

Ld. counsel for the deft. no.13 has urged that the plaintiff cannot be allowed to resile from the admission already made in the suit plaint and deft no.13 being L.R, by virtue of having been adopted by Smt. Munni Devi in 1948, is necessary party. With the consent of the learned counsel for the parties I decide the controversy in the following manner :

Shri R K Khandelwal defendant no.13 will remain as defendant but the question regarding his having been lawfully adopted by Smt. Munni Devi will be proved by deft no.13 with the necessary consequence of his having inherited some share in the joint family property left by Sh. Lalle Mal. I therefore, dispose of the application directing the plaintiff to suitably amend the plaint by moving another application under Order 6 Rule 17 CPC, mentioning therein it is not the transaction of auction sale where parties to given bids to purchase the property. Taking all the relevant circumstances into consideration and believing the statement of Shri Om Parkash Goel in my opinion the suit property is worth Rs.95000/-, with the result this court has pecuniary jurisdiction to try the suit. The issue is decided accordingly. Come up for plaintiff evidence on main issues on 12.8.85.

ADJ/26.4.85"

7. I am unable to agree with the contention of the learned counsel for the

appellant that admissions cannot be withdrawn. Of course, admissions

appearing in judicial record, are entitled to the highest weightage and it

is only in very limited circumstances that the admission should be

allowed to be withdrawn, however, I find that in the facts of the present

case and the evidence which has come on record, there were quite

clearly sufficient reasons to allow the erstwhile plaintiff to resile from his

admission, moreso it was by a consent order. Adoption after all is a very

important aspect and this needs to be established quite clearly because it

will have a lasting impact on the respective rights of the parties for

inheritance of properties. I have already time and again referred to above

that it was very easy for the appellant to lead clinching evidence for

adoption by filing documents, however no document worth the name has

been filed and only oral depositions made, and to which credibility cannot

be given. I may also note that in the cross examination of the erstwhile

plaintiff, a suggestion was put to erstwhile plaintiff that the appellant was

treated by Smt. Munni Devi, but, as her son. This suggestion is very

important because the suggestion is not that the appellant was the

adopted son of Smt. Munni Devi, but, the suggestion was that the

appellant was 'treated' by Smt. Munni Devi as her son. Also, I do not think

that any estoppel has arisen in terms of Section 31 of the Indian Evidence

Act, 1872 so that the erstwhile plaintiff could not have resiled from his

admission that the appellant was legal heir or adopted son of Late Smt.

Munni Devi. The plaintiff would have come to know that the appellant

would have been „treated‟ by Smt. Munni Devi as her son but actually

there was no adaption and hence he amended his plaint withdrawing the

admission.

8. Learned counsel for the appellant argued that the appellant by the

present appeal he is also challenging the order dated 20th September,

1985 whereby the trial court allowed the application under Order 6 Rule

17 and permitted the erstwhile plaintiff to resile from the stand earlier

taken that the appellant was the legal heir and adopted son of Smt.

Munni Devi. I have already reproduced the order dated 20.9.1985 above

and I have already noted that that order is a consent order. It is

categorically written in the order that the order is passed with the

consent of the learned counsel for the parties. A consent order cannot be

challenged by virtue of Section 96(3) of CPC. In any case, even assuming

that this order could have been challenged, I hold that in the facts and

circumstances of the case there was justifiable reasons for the erstwhile

plaintiff to seek amendment and the court to allow the erstwhile plaintiff

to resile from his stand that the appellant/defendant no.13 should not be

taken as the legal heir and adopted son of Smt. Munni Devi.

9. Learned counsel for the appellant finally argued that the onus to prove

that the appellant was not the adopted son lay on the plaintiff. I do not

agree. If a person claims to be adopted, it is upon that person to show

that he is an adopted son and the onus cannot be on the opposite party.

Under section 106 of the Indian Evidence Act, 1872 the onus to prove a

fact within the knowledge of the person is on that person only.

10. In view of the above, I do not find any merit in appeal. Merely because

two views are possible, this court is not entitled to interfere with the

impugned judgment and decree unless the same is wholly illegal or

perverse. I do not find any illegality or perversity in the impugned

judgment and decree. The appeal is therefore, dismissed leaving the

parties to bear their own costs. Interim orders stand vacated.

February 08, 2011                                     VALMIKI J. MEHTA, J.
vld