[Cites 6, Cited by 0]
Jharkhand High Court
Bishwanath Prasad vs Dwarika Prasad Bhagat @ Dwarka Prasad ... on 29 January, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026:JHHC:2300
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 14 of 1995 (R)
Bishwanath Prasad, son of Late Nathuni Chaudhuri, resident of
Mahalla Whitty Bazar, P.S.- Giridih (T), P.O. & Town- Giridih,
District- Giridih (Dead, Substituted vide order dated 29.08.2022)
1(a). Kamla Devi, Widow of Late Biswanath Prasad
1(b). Sulekha Devi, Widow of deceased son of appellant namely, Ajit
Prasad Jaiswal
1(c). Kumari Bhawna Jaiswal, W/o Sri Bhola Prasad Choudhary
1(d). Kumari Neha Jaiswal, W/o Sri Ranjeet Choudhary
1(e). Ritesh Kumar Jaiswal, S/o Late Ajit Prasad Jaiswal and grandson
of Late Bishwanath Prasad
All R/o Mohalla Whitty Bazar, P.S.- Giridih (T), P.O., Town and
District- Giridih
...... Plaintiffs/Respondents/Appellants
Versus
Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni
Chaudhuri, resident of Mohalla Whitty Bazar, P.S.- Giridih (T), P.O. &
Town- Giridih, District- Giridih (Dead, Substituted vide order dated
29.08.2022)
1(a). Ranjeet Bhagat
1(b). Surendra Bhagat
1(c). Nagendra Bhagat (Dead, substituted v/o dated 10.11.2025)
1(c)(i). Munti Devi W/o Late Nagendra Bhagat, R/o Mohalla- Whitty
Bazar, P.O. & P.S.- Giridih, District- Giridih
1(c)(ii). Ankit Jaiswal, Adopted S/o Late Nagendra Bhagat, R/o
Mohalla-Whitty Bazar, P.O. & P.S.- Giridih, District- Giridih
1(d). Bijay Bhagat (Dead, Abated vide order dated 10.12.2024)
1(e). Raju Bhagat
All S/o Late Dwarika Prasad Bhagat, R/o Mohalla Whitty Bazar,
P.S.- Giridih (T), P.O., Town and District- Giridih
... ... Defendants/Appellants/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. R.N. Sahay, Advocate
: Mr. Kirtivardhan, Advocate
: Mr. Aditya Aman, Advocate
For the Respondents : Mr. Yogesh Modi, Advocate
---
Lastly heard on 11.11.2025 Pronounced on 29th January, 2026
1. This second appeal has been filed against the judgment and
decree dated 02.12.1994 (decree signed on 13.12.1994) passed by the
learned 2nd Additional District Judge, Giridih in Title Appeal No.24 of
1991 reversing the judgment and decree dated 10.05.1991 (decree
signed on 27.05.1991) passed by the learned Sub-Judge-III, Giridih in
Partition Suit No. 15 of 1989/08 of 1990.
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2. The judgment and decree passed by the learned trial court has
been reversed by the learned 1st appellate court and consequently, the
plaintiff is the appellant before this Court.
3. This appeal was admitted for hearing vide order dated
21.11.1995 on the following substantial questions of law: -
(i) Whether even after adoption of the defendant by Man Kumari,
Nathuni Chaudhuri and his two sons, namely, the plaintiff
and the defendant continued to be in occupation of the suit
premises as members of the Joint Hindu Family?
(ii) Whether the plaintiff is entitled to any share in the suit
property?
4. The partition suit was filed by the sole plaintiff-Bishwanath
Prasad seeking partition and half share of Schedule B property.
5. Arguments of the appellants (plaintiff)
A. The learned counsel for the appellants has placed the trial court's
judgment and has given the factual background of the case. He
submits that the facts of the plaintiff and defendant case are
reflecting from the trial court's judgment.
B. Foundational facts have been submitted as under: -
a. It has been submitted that Man Kumari and Khoshal Kumari
were full sisters.
b. Man Kumari was married to Kali Charan Bhagat;
c. Khoshal Kumari was married to Bhagwat Prasad Bhagat;
d. Kali Charan Bhagat had two wives, namely, Man Kumari and
one more, but the name of another wife has not been
mentioned. However, the descendants through another wife
have been mentioned;
e. Another wife had a daughter, namely, Jamuna Devi, who in
turn had 7 daughters including one Sabitri Devi;
f. Sabitri Devi was married to Nathuni Choudhary, who had
two sons, namely, Dwarika Prasad and Bishwanath Prasad;
g. Bishwanath Prasad is the plaintiff of the case;
h. Dwarika Prasad is the defendant of the case.
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Kali Charan Bhagat (Husband) Bhagwat Prasad Bhagat (Husband)
| |
| | Koshal Kumari
Man Kumari Another wife
|
Jamuna Devi (daughter)
|
(Sabitrai Devi & 6 other daughters)
|
Nathuni Choudhary (husband of Sabitri Devi)
|
Dwarika Prasad (defendant) and Biswanath Prasad (plaintiff)
C. The plaintiff-Bishwanath Prasad had filed the partition suit with
respect to Schedule-B property and the plaintiff claimed ½ share
of the property. Man Kumari was the owner of Schedule-B
property.
D. Further facts in connection with the defendant Dwarika Prasad is
that Man Kumari had adopted Dwarika Prasad by registered deed
of adoption way back in the year 1944. The adoption deed was
challenged by Bhagwat Prasad Bhagat, husband of Koshal
Kumari in Title Suit No. 18/1947, whereby the deed of adoption
was set-aside. However, the same was subject matter of appeal in
First Appeal No. 11/1949, which ended in a compromise.
Consequently, the defendant claimed that he was the exclusive
owner of the Schedule-B property by virtue of the fact that Man
Kumari had adopted the defendant, and therefore, the property
could not be subject matter of partition.
E. Learned counsel for the appellants has referred to paragraphs 13
and 14 of the plaint to submit that the adoption was never acted
upon and the suit property was thrown in the joint family property
of the parties. Paragraphs 13 and 14 of the plaint are quoted as
under: -
"13. That for all intent purposes the plaintiff and defendant
contested the said suit and the appeal with a clear and
mutual under-standing that each of the plaintiff and the
defendant shall be entitled equally to the subject matter of
the said suit and the appeal. In legal paralence the suit
property was thrown to the said joint family.
14. That the said appeal ended in compromise according to
which the land and premises schedule B below was given to
the defendant who accepted the same for and on behalf of
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the plaintiff as well and the plaintiff and the defendant
always treated the same as their joint property and both the
parties are residing therein."
F. Learned counsel for the appellants has referred to paragraph 9 of
the trial court's judgment and has submitted that the said finding
has been reversed by the learned 1st appellate court vide
paragraph 25 of the judgment without discussing the materials on
record. The learned counsel has then referred to Exhibit-G which
is the order passed in F.A. No.11 of 1949 and has submitted that
the appeal against the judgment passed in the earlier Title Suit
has been practically dismissed.
G. The learned counsel for the appellants has submitted that in the
Title Suit No.18 of 1947 filed by Bhagwat Prasad Bhagat against
four defendants Dwarka Prasad Bhagat, Most. Man Kumari,
Sudarshan Chakra Prasad Bhagat and Mahadeo Prasad Bhagat
and in the suit, the registered adoption deed was set aside. He
submits that the appeal was filed by defendant Nos.1 and 2 which
was numbered as F.A. No. 11 of 1949, which ended in a
compromise. The respondent Nos.2 and 3 in the F.A. No. 11 of
1949 were the co-defendants in the suit.
H. The learned counsel for the appellants has submitted that as per
the compromise petition, the plaintiff Bhagwat Prasad Bhagat
accepted that defendant No. 1 i.e. Dwarka Prasad Bhagat, was
the adopted son of Kali Charan Bhagat and further it was agreed
that all the right, claim and title of defendant No. 2 Most. Man
Kumari with respect to her property, which is Schedule B
property in the present case, will vest in defendant No.1 i.e.
Dwarka Prasad and also the plaintiff Bhagwat Prasad Bhagat. It
was further stipulated that the property of Man Kumari was
divided between Dwarka Prasad Bhagat and Bhagwat Prasad
Bhagat amongst themselves; a portion to the west fell in the share
of Dwarka Prasad Bhagat and the portion in the east fell to the
share of Bhagwat Prasad Bhagat; Bhagwat Prasad Bhagat
undertook to redeem mortgage bond of Rs. 550/- executed in
favour of Ram Chandra Sah by Dwarka Prasad Bhagat over the
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said house which fell into the share of Bhagwat Prasad Bhagat.
It was also agreed that the parties could get their names mutated
in the Municipal Register and neither parties will raise objection
with respect to each other's share. The property was divided
between Bhagwat Prasad Bhagat and Dwarka Prasad upon
compromise.
I. The learned counsel for the appellants has submitted that in the
compromise, the sole plaintiff Bhagwat Prasad Bhagat had
accepted that the defendant No.1 namely Dwarka Prasad Bhagat
was the adopted son to Kalicharan Bhagat and the same will have
no bearing on the finding recorded by the learned trial court that
the adoption was invalid in the eyes of law. The learned counsel
for the appellants submits that merely because the plaintiff of the
earlier title suit, who had challenged the deed of adoption, had
accepted during compromise in the said suit that there was
adoption, the same will not nullify the finding of the learned trial
court. As a sequel to the aforesaid argument, the learned counsel
has submitted that the effect of invalid adoption is that the status
of Dwarka Prasad Bhagat continued to be in his own family of
biological father and therefore, he cannot acquire any right, title
and interest in the property of Man Kumari by virtue of adoption.
J. The learned counsel has relied upon the 24th Edition of Principles
of Hindu Law by Mullah at page No. 713 which deals with the
effect of invalid adoption. The learned counsel submits that if the
adoption is invalid, then both the parties, the plaintiff and the
defendant were entitled to ½ share of the property.
6. Arguments of the Respondents
i. The learned counsel for the respondents has referred to 22nd
Edition of Hindu Law by Mullah at page No. 707 and has
submitted that there the period of limitation to obtain a
declaration that the adoption is invalid, or never took place is six
years from the date on which the alleged adoption becomes
known to the plaintiff. The learned counsel submits that the
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registered deed of adoption in the present case has still not been
set aside.
ii. Learned counsel for the respondents has submitted that the
judgment of Title Suit No. 18 of 1947 is on record and marked as
Exhibit-10 and upon perusal of the said judgment, it appears that
Kalicharan Bhagat and Bhagwat Prasad Bhagat are also distantly
related and there was dispute of other properties also. The learned
counsel for the respondents has submitted that Bhagwat Prasad
Bhagat was the sole plaintiff in the earlier suit, who had
challenged the deed of adoption in the suit and at the stage of
compromise, he accepted the adoption as valid, and therefore, it
cannot be said that the adoption is invalid at any stage of the
matter or it was set aside by any court of law.
iii. The consequence of adoption has been mentioned in Sections 11
and 12 of the Hindu Adoption & Maintenance Act and as per this
provision, the adopted child acquires the status of child in the
adopted family. Learned counsel for the respondents has
submitted that as per Section 16 of the Hindu Adoption &
Maintenance Act, a registered deed of adoption is valid unless it
is proved to be invalid. He has also submitted that the adoption
deed is not under challenge in the present proceedings and the
present proceeding arises out of a partition suit. He has relied
upon the judgment passed by this Court in S.A. No. 493 of 2018
[Pawan Rout vs. Shanti Kumrain and Others] in which a
reference has been made to the judgment reported in (1969) 2
SCC 544 [Smt. Sitabai and another v. Ramchandra] and has
submitted that the consequence of adoption with respect to
Sections 11 and 12 Hindu Adoption & Maintenance Act has been
considered.
iv. The learned counsel for the respondents has submitted that the
adoption was valid, and therefore, the property devolved upon
the adopted son of Man Kumari namely Dwarika Prasad, and the
plaintiff in the present case had no right to seek partition with
respect to the property. He has further submitted that otherwise
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also as per the compromise, a portion was to go to Bhagwat
Prasad Bhagat, and the plaintiff is not claiming through Bhagwat
Prasad Bhagat. He has submitted that mere performance of last
rites of his biological father does not annul the adoption of
Dwarika Prasad by Man Kumari. The learned counsel for the
respondents has submitted that the plaintiff pleaded that there
were an adoption and the said fact stood admitted by the
defendant, and therefore, there is no question of challenging the
validity of adoption in the present proceedings, which is arising
out of a partition suit.
v. On the point of abatement with respect to deceased respondent
no.1(d), the learned counsel for the respondents has referred to
paragraph 12 of the judgement passed by the Hon'ble Supreme
Court reported in (2019) 11 SCC 787 (Sunkara
Lakshminarasamma vs. Sagi Subba Raju and Others) and
submitted that the effect of abatement has been duly dealt with in
the said judgement. The learned counsel submits that the
proceeding having abated in connection with respondent no.1 (d),
who is one of the substituted heirs of Dwarika Prasad Bhagat,
therefore, the right with respect to respondent no.1 (d) has
attained finality and the right of the other legal heirs and
successors of Dwarika Prasad Bhagat, who are on record that
cannot be affected, and therefore, the entire appeal has abated.
7. Rejoinder arguments of the Appellants
a) In response, the learned counsel for the appellants has submitted
that in the earlier title suit, read with the compromise, the
adoption was already held to be invalid. The learned counsel has
also submitted that the arguments advanced on behalf of the
respondents by referring to the judgment passed in the earlier title
suit have nothing to do with the present case and the respondents
have to stick to the written statement filed in the plaint.
b) The learned counsel for the appellants has further, in response,
submitted that non - substitution of respondent no.1 (d) has no
bearing in the present case as the case was filed against Dwarika
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Prasad Bhagat and it is his right, title and interest with respect to
the suit property, which was under challenge and his estate is
duly represented by the other respondents, who have been
substituted during the pendency of this case.
8. Case of the plaintiff
i. Man Kumari and Koshal Kumari were full sisters. Man Kumari
was married with Kali Charan Bhagat and Koshal Kumari was
married with Bhagwat Prasad Bhagat. Kali Charan Bhagat had
two wives. From the first wife, he had a daughter Jamuna Devi
and Jamuna Devi had a daughter Sabitri Devi. After death of the
first wife, Kali Charan took Man Kumari as his second wife. Man
Kumari was the owner of Schedule-A property.
ii. Sabitri Devi was married with Nathuni Choudhary and had two
sons, Dwarika Prasad Bhagat (the defendant) and Biswa Nath
Prasad (the plaintiff) and the father with two sons formed joint
Hindu Mitakshara family. Man Kumari had no issue and she
executed a registered deed of adoption, adopting the defendant
Dwarika Prasad Bhagat as her son in or about the year 1944.
iii. The said deed of adoption was challenged by said Bhagwat
Prasad Bhagat and the adoption deed was set aside by Sub-Judge,
Hazaribagh in Title Suit No.18 of 1947. Dwarika Prasad Bhagat
and his adoptive mother Man Kumari preferred F.A. No.11 of
1949 which ended in a compromise according to which, the
property mentioned in Schedule-A vested in Dwarika Prasad
Bhagat and Bhagwat Prasad Bhagat and out of Schedule-A
property, the Schedule-B property was allotted to the share of
Dwarika Prasad Bhagat. As a matter of fact, the said suit and
appeal arising therefrom were contested by Nathuni Choudhary
as karta of the joint family consisting of himself and his sons out
of the joint family income and the fund. While the said appeal
was pending in High Court, Nathuni Choudhary sold his
ancestral lands of his native Village Hazipur to meet the expenses
of the said appeal.
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iv. Even Man Kumari had every intention that Schedule-B property
of the present suit shall go to plaintiff and the defendant of this
suit in equal shares and even the defendant of this suit always
accepted such position and treated the Schedule-B property as
the joint family property of the plaintiff and the defendant of the
present suit. On 23.12.1948, Man Kumari and Dwarika Prasad
Bhagat (present defendant) executed an agreement accepting and
admitting the share of plaintiff and defendant of this suit in the
Schedule-B property to the extent of ½ and ½ and it was also
admitted that the plaintiff paid Rs.2,000/- towards the expenses
to be met against the said appeal before High Court. It was also
agreed in the compromise that whatever interest in the subject
matter of the litigation in High Court will be gained by the
defendant, the plaintiff and the defendant each shall have ½ and
½ interest thereon.
v. There were several letters written by the Sirista of the advocate
engaged on behalf of the defendant to Nathuni Choudhary, the
father of the defendant and plaintiff, which show that it was
Nathuni Choudhary, who was meeting the expenses of the said
appeal as karta of his joint family. Nathuni Choudhary used to
maintain accounts of the expenses of the suit and appeal which
were fully counter signed by Man Kumari. It was the case of the
plaintiff that for all intent purposes, the plaintiff and the
defendant of the present case contested the earlier suit and the
appeal with a clear and mutual understanding that each of them
shall be entitled equally to the subject matter of the said suit and
the appeal. It was the case of the plaintiff in this suit that the suit
property was thrown to the joint family stock.
vi. The said appeal ended in a compromise according to which the
land and premises of Schedule-B was given to the defendant,
who accepted the same for and on behalf of the plaintiff as well,
and the plaintiff and the defendant always treated the same as
their joint property and both the parties are residing therein. All
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the taxes including Municipal Taxes, ground rents and electric
charges are being met by the plaintiff and the defendant jointly.
vii. The plaintiff further stated that for last years, few differences
crept between the plaintiff and the defendant. The defendant
disconnects the electric supply off and on to the rooms in
occupation of the plaintiff. The defendant also gave out that the
holding in suit stands in his name and he will not give any share
in it to the plaintiff. The plaintiff having come to know about the
ill intention of the defendant demanded partition of the suit
property from the defendant in the month of March, 1989, but
the defendant did not agree to the same. Hence, the necessity for
the suit.
viii. The plaintiff stated that the cause of action for the suit arose in
the month of July, 1987 and in the month of March, 1989 and
thereafter day to day within the jurisdiction of the Court. The
plaintiff valued the suit property at Rs.31,000/- for the purposes
of jurisdiction and paid the fixed court fee of Rs.29.75 as a suit
for partition.
9. Case of the defendant
a) The suit is not maintainable, barred by limitation, waiver,
acquiescence and estoppel and the plaintiff has no cause of action
for the suit. The plaintiff is required to pay ad-valorem court fee
on the market value of the suit property which is not less than
Rs.10,00,000/- lacs, but the plaintiff has grossly undervalued the
suit property for ulterior motive.
b) The genealogy and the fact that Man Kumari was the owner of
the suit property as mentioned in paragraphs 1, 2, 3 and 4 was
not disputed. The defendant admitted that Man Kumari had
adopted the defendant as her son in the year 1944 and it was
added that after adoption, the defendant came and lived with Man
Kumari and Man Kumari transferred the said land and house
comprising of Holding No.315 of Ward No.3 of Giridih
Municipality to the defendant, who started all acts of possession
over the said properties as its exclusive owner. The defendant
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also admitted that the adoption deed was challenged by Bhagwat
Prasad Bhagat, the husband of Khoshal Kumari, and the adoption
was set aside in Title Suit No.18 of 1947. Thereafter, Dwarika
Prasad Bhagat and Man Kumari preferred an appeal being F.A.
No.11 of 1949 challenging the judgement passed in Title Suit
No.18 of 1947. The said first appeal was ultimately compromised
and accordingly the property of Schedule A vested in Dwarika
Prasad Bhagat and Bhagwat Prasad Bhagat and out of Schedule
A property, the property of Schedule B was allotted to the share
of Dwarika Prasad Bhagat.
c) The defendant stated that the joint family of Nathuni Choudhary
and the plaintiff (defendant had ceased to be a member after
adoption by Man Kumari) had nothing to do with the said suit or
appeal, nor Nathuni Choudhary or the joint family incurred a
single farthing in contesting the suit or appeal. No ancestral
land/native house of Nathuni Choudhary at Hazipur was sold to
meet the expenses of the said suit/appeal. It was stated that Man
Kumari herself transferred the said property to the defendant
alone, which itself shows her intention that she never desired to
give any interest to the plaintiff in the said property, nor the
defendant ever intended like that. He also denied execution of
any agreement on 23.12.1948 and stated that the plaintiff never
advanced Rs.2,000/- to meet the expenses of the appeal in the
Hon'ble High Court as the plaintiff was not at all capable to
advance a single farthing at that time and he had hardly passed
matriculation or had gone to Calcutta to study in college and he
was himself a dependent.
d) The defendant admitted that the appeal ended in compromise and
properties described in Schedule-B of the plaint was accepted to
have vested in the defendant, but denied that the defendant
accepted it on behalf of plaintiff also and the said property was
treated as joint properties of the parties.
e) He further stated that the plaintiff was never in joint possession
of the said properties, rather the plaintiff was in permissive
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possession of two room only on the first floor and the rest of the
house and land has been coming in open, adverse, exclusive and
peaceful possession of the defendant for more than twelve years.
f) The defendant denied that all municipal taxes, ground-rent,
electric charges were being paid by the plaintiff and asserted that
all papers concerning the said property stand in the name of the
defendant and stated that the plaintiff never paid a single
farthing, nor he could had paid a single farthing as he had/has no
interest in the said property. The defendant also stated that there
could be no occasion for demand of any partition in the suit
property by the plaintiff.
g) The defendant submitted that the natural father of the defendant
and the plaintiff Late Nathuni Choudhary was residing at
Hazipur and Patna and he was in service and had little time to
spend with the family. It was very difficult for him to provide
education to the plaintiff and hence, he requested Man Kumari
and the defendant to allow the plaintiff to live with them at
Giridih, so that he may be educated. The defendant and Man
Kumari agreed and the plaintiff resided at Giridih and was
educated. After matriculation, he went to Calcutta to study in
college. After about two-three years, he returned back in or about
1950-51 and was in search of some job. He was a partner in cloth
business with one Bishwanath Khandelwal for some period and
had dealt in money lending business also, for which he was
provided capital by Savitri Devi, who raised the fund after sale
of her house at Hazipur. The plaintiff and Savitri Devi were
provided accommodation in the first floor in two rooms, in which
the plaintiff was still residing. The possession of the plaintiff was
purely permissive and the plaintiff could not acquire any title or
interest therein.
h) The defendant further stated that he has been exercising all sorts
of acts of possession over the said properties since the date of
adoption and transfer of the said property by Man Kumari. He
got the map sanctioned in the municipality to construct the house
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and built it from his own fund, he raised money and capital for
business of his sons by pledging the said properties with the
bank, he has been contesting all matters relating to the said
properties, which clearly show that the defendant is the exclusive
owner of the said properties, and the plaintiff cannot have any
interest therein.
10. On the basis of the pleadings of the parties, the learned trial court
framed the following issues for consideration: -
I. Has the plaintiff got any valid cause of action for the suit?
II. Whether suit is maintainable in its present form?
III. Whether plaintiff is required to pay ad-valorem court fee
on the plaint?
IV. Whether the suit is barred under the law of limitation?
V. Whether T.S. No.18/47 and F.A. No.11/49 were contested
by Nathuni Choudhary and the plaintiff, to make Man
Kumari and defendant agreeable to share the fruits of the
said litigation half and half as shown in the agreement
dated 23.12.1948.
VI. Whether the said agreement is genuine and enforceable
under law?
VII. Whether Nathuni Choudhary and his sons form members
of Joint Hindu Mitakshara Family even after adoption of
defendant by Man Kumari?
VIII. Whether the plaintiff and defendant have been treating
and occupying the suit property as joint property or
whether the occupation of the plaintiff of two rooms only
on the first floor of the suit house is only permissive one?
IX. Whether plaintiff is entitled to have any share in the
property?
11. In course of trial, both the plaintiff and the defendant adduced
oral as well as documentary evidences.
Findings of the learned trial court
12. The learned trial court decided issue nos. V and VI in favour of
the plaintiff and held that the agreement i.e. Ext.-9 can be used as a
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strong piece of evidence regarding intention of Man Kumari that she
wanted to give half and half share to the plaintiff and the defendant.
The issue nos.VII and VIII have also been decided in favour of the
plaintiff by holding that even after adoption, Nathuni Choudhary (father
of plaintiff and defendant) and his sons i.e. plaintiff and defendant,
continued to be the member of joint Hindu family and both plaintiff and
defendant are treating and occupying the suit premises as joint property.
It has also been held that the defendant has not proved that the plaintiff
was in possession of suit premises on the basis of defendant's
permission. The issue no. IV has also been decided in favour of the
plaintiff by holding that the suit was not barred by limitation. The other
issues were also consequently decided in favour of the plaintiff and the
suit was decreed by holding that the plaintiff was entitled to ½ share
over schedule B property. The learned trial court recorded its findings
in Paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, whose
ultimate findings are as under:
"7. Issue No. V and VI: These two issues are taken together for
discussion for convenience. ...........................
Thus, on the basis of above discussed facts, circumstance
and evidence, I find and hold that the Title Suit No.18/1947 and
First Appeal 11/1949 were contested by Nathuni Chaudhary (father
of the plaintiff and defendant) and plaintiff Bishwanath Prasad as
well as Man Kumari and the defendant Dwarika Prasad Bhagat. In
the circumstance, I also find and hold that agreement i.e. Ext.-9 can
be used as a strong piece of evidence regarding intention of Man
Kumari that she wants to give half and half share to the plaintiff
and defendant. These two issues are accordingly disposed of.
8. Issue No. VII and VIII: These two issues are interconnected.
Therefore, these two issues are taken together for
consideration. ............................................
15. On the basis of above discussed evidences I find and hold that
even after adoption, Nathuni Choudhary (father of plaintiff and
defendant) and his sons i.e. plaintiff and defendant continued to be
the member of joint Hindu family and both plaintiff and defendant
are treating and occupying the suit premises as joint property.
Further I also find and hold that defendant has not proved this fact
that plaintiff is in possession of suit premises on the basis of
defendant's permission. These two issues are accordingly disposed
of.
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16. Issue No. IV: .....................On behalf of defendant, it has
been strongly argued that the plaintiff has filed this case to enforce
the agreement of year 1948 i.e. Ext.-9 in the year 1989 and
according to the defendant lawyers, the suit is time barred in view
of the article 54 of the limitation act. ...................
Considering facts and circumstances of the case and
evidence already discussed, I also find and hold that this suit has
not been filed to enforce the agreement i.e. Ext.-9, rather it has been
used as a piece of evidence.
Thus, on the basis of above discussed fact, I find and hold
that argument advanced on behalf of defendant that suit is barred
by law of limitation is not fit to be accepted.
17. Issue No. I, II, III and IX: In view of my finding in respect of
all other issues, I find and hold that plaintiff suit in its present form
is maintainable and plaintiff has valid cause of action for the suit
and he is also entitled for half share in suit premises as claimed by
him.
13. On appeal by the defendant, the learned 1st appellate court framed
the following points for determination and decision in the title appeal:
(1) Whether any agreement was executed by Man Kumari and
Dwarka Pd. Bhagat (deft.-appellant) in favour of
Bishwanath Prasad (plaintiff-respondent) on 23.12.1948
and, if so, whether that agreement is enforceable under law?
(2) Whether plaintiff-respondent Bishwanath Prasad is entitled
to ½ share in the suit property?
Findings of the learned 1st appellate court
14. The learned 1st appellate court took both the points of
determination together and recorded the admitted facts of the case at
paragraph Nos. 20, 21, 22 and 23. The learned 1st appellate court
recorded its findings at paragraph Nos. 24 to 53 and the findings are
summarized as under: -
a. Plaintiff has neither questioned the validity of adoption of
defendant Dwarika Pd. Bhagat by Man Kumari way back in the
year 1944 nor he could have challenged as the challenge would
be rendered as time barred. Therefore, the evidence-both oral
and documentary brought on the record by the plaintiff on the
point of adoption could not be gone into considered and
appreciated.
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b. It is a settled principle of the Hindu Law that by adoption, the
boy is completely removed from his natural family as regards of
civil rights and obligations. The adopted son loses his rights in
the coparcenary property and his natural family cannot inherit
from him, nor is he liable for their debts. The plaintiff is
completely estopped from contending and agitating that even
after adoption defendant continued to be a member of his joint
family, the Karta of which was his father Nathuni Chaudhuri as
he has tried to make out a case in his plaint.
c. The plaintiff has made out a case in the plaint that as the earlier
suit/appeal remained pending, it was contested by his father
Nathuni Chaudhuri as Karta of the family consisting of himself
and his sons with the money out of the joint family fund and
income with clear and mutual understanding that the defendant
and the plaintiff of the present case shall be entitled equally to
the subject matter of the suit.
d. The 1st appellate court by detailed discussions of the materials
on record considered the inconsistency arising from the varying
contentions of the plaintiff and observed that the inconsistencies
clearly crippled the case of the plaintiff that he and his father
had contested the earlier litigation and spent money for the
same. The learned court recorded that such fact as pleaded in
the plaint could not be proved by the plaintiff and the oral and
documentary evidences placed on record were rejected and the
learned court also recorded that the plaintiff could not prove the
sale of property in the village to finance the earlier litigation.
e. The learned 1st appellate court also considered the further case
of the plaintiff that even Man Kumari had every intention that
the suit property shall go to the plaintiff and the defendant in
equal share and even the defendant always accepted that
position and treated the suit property as the joint property of the
plaintiff and the defendant and for that purpose on 23.12.1948
Man Kumari and the present plaintiff and defendant executed
an agreement accepting and admitting the share of the plaintiff
and the defendant in the suit property to the extent of ½ and ½
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share and also considered the plea of the plaintiff that it was
also admitted that the plaintiff paid Rs.2000/- towards the
expenses of the earlier appeal which ended in compromise and
the parties always treated the suit property as their joint
property. The learned 1st appellate court rejected the aforesaid
contention of the plaintiff by discussing the materials on record
and held that even the agreement dated 23.12.1948 (Exhibit-9)
was forged and fabricated. The agreement is dated 23.12.1948
and it contains inter alia both the old Holding no.224 as well as
the New Holding No.315 of the suit property although the New
Holding No.315 of the suit property came into being
subsequently in the year 1949-50.
f. The court recorded that the plaintiff (P.W.7) has stated in his
evidence that the said agreement was executed by the defendant
and Man Kumari in his presence but also stated that he learnt
about the said agreement in the year 1977 after the death of his
mother. The court recorded that the fatal inconsistency arising
out of the said two statements of the plaintiff left no room for
doubt that the agreement dated 23.12.1948 (exhibit-9) is entirely
an ingenuine document and it is completely unacceptable and
unbelievable.
g. The plea of the plaintiff having paid Rs.2000/- for the expenses
on the earlier litigation was also rejected by citing reasons based
on materials on record.
h. The court also recorded that the admitted position is that the
plaintiff-respondent (P.W.7) has been in occupation and
possession of only two rooms of the suit house standing in the
suit premises and he does not claim to be in possession of any
other part of the suit property and the court observed that the
plaintiff has not made out a case of the joint possession of the
entire suit property by the parties including himself.
i. The court held that in view of the suit property being vested in
defendant after his adoption by Man Kumari, there was no room
or scope for a case of unity of title to the suit property between
the parties.
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j. The court also recorded that it was remarkable that the plaintiff
has not stated either in his plaint or in his evidence as to when
he came in occupation and possession of the said two rooms and
he does not claim to be a trespasser nor does he assert a hostile
title. Since there is no unity of title, he cannot claim occupation
and possession of the said rooms as a title-holder of the suit
property. The learned court held that in facts and circumstances
of the case, the occupation and possession of the said two rooms
by the plaintiff could not be anything else save and except a
permissive possession which was evidently the case of the
defendant as per his written statement.
k. The learned 1st appellate court ultimately observed that there
was no dispute that prior to the adoption in question the suit
property stood in the name of Man Kumari and that ever since
the said adoption, all documents and papers stand in the name
of the defendant. The municipal receipts produced by the
plaintiff were considered and it was held that all of them stood
in the name of either Man Kumari or the defendant except
exhibit 1, which disclosed that the plaintiff had paid the
municipal tax on 26.05.89, that is, after institution of the suit by
him on 11.05.89. The learned court observed that if the plaintiff
had paid all the other municipal taxes, all the remaining
municipal tax receipts too must have disclosed the same as is
disclosed by the said ext.1 and held that by merely producing
the municipal tax receipts, the plaintiff cannot create and claim
title in himself in respect of the suit property.
l. The 1st appellate court has completely rejected the plea of the
plaintiff that the property in question was thrown into the family
of the plaintiff, defendant and their biological father.
m. The learned 1st appellate court ultimately held as under: -
"52. Thus, on the basis of the detailed discussions
made above, I find and hold as follows: -
(1) That the plaintiff has not been able to prove that
Man Kumari and Dwarka Pd. Bhagat (deft-
appellant) had executed any agreement in favour of
plaintiff Bishwanath Prasad on 23.12.1948.
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(2) That agreement (Ext.-9) brought on the record by
the plaintiff is not a genuine document and hence not
enforceable under law.
(3) That plaintiff Bishwanath Prasad is not entitled
to any share in the suit property.
53. Therefore, in view of the aforesaid detailed
discussions both the points referred to above are
decided and determined in favour of the defendant
and against the plaintiff."
15. Thus, the learned 1st appellate court set aside and reversed the
judgment and decree passed by the learned trial court and allowed the
title appeal on contest.
Findings of this Court
On the point of abetment of appeal due to non-substitution of the
one of the legal heirs of the deceased defendant [respondent no.
1(d)]
16. It has been argued by the learned counsel for the respondents that
deceased respondent no.1 (d) has not been substituted, and therefore,
the proceeding has abated in connection with respondent no.1 (d). It has
also been argued that the entire appeal has abated. It has been further
argued that the rights with respect to respondent no.1 (d) have attained
finality and the rights of the other legal heirs and successors of the sole
defendant in the suit cannot be affected, as the entire appeal has abated.
Reliance has been placed on the judgement reported in (2019) 11 SCC
787 (supra), Paragraph 12 which is quoted as under:
"12. Order 22 Rule 4 CPC lays down that where within the time
limited by law, no application is made to implead the legal
representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This rule does not provide that
by the omission to implead the legal representative of a
defendant, the suit will abate as a whole. If the interests of the
co-defendants are separate, as in the case of co-owners, the suit
will abate only as regards the particular interest of the
deceased party. In such a situation, the question of the
abatement of the appeal in its entirety that has arisen in this
case depends upon general principles. If the case is of such a
nature that the absence of the legal representatives of the
deceased respondent prevents the court from hearing the
appeal as against the other respondents, then the appeal abates
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in toto. Otherwise, the abatement takes place only in respect of
the interest of the respondent who has died. The test often
adopted in such cases is whether in the event of the appeal
being allowed as against the remaining respondents there
would or would not be two contradictory decrees in the same
suit with respect to the same subject-matter. The court cannot
be called upon to make two inconsistent decrees about the same
property, and in order to avoid conflicting decrees the court has
no alternative but to dismiss the appeal as a whole. If on the
other hand, the success of the appeal would not lead to
conflicting decrees, then there is no valid reason why the court
should not hear the appeal and adjudicate upon the dispute
between the parties."
17. The said plea has been opposed by the learned counsel for the
appellants by submitting that the suit was filed against the sole
defendant, who was duly substituted and merely because one of the
substituted respondent, that is, respondent no.1 (d) has not been
substituted, the same will not have the effect of abatement of the entire
appeal as his estate is duly represented by the brothers of deceased
respondent no.1 (d).
18. This Court finds that the suit was filed seeking partition with
respect to Schedule B property and the original plaintiff claimed ½
share and the sole defendant opposed the suit by claiming to be the
exclusive owner of the suit property on the strength of his adoption by
the owner of the suit property Man Kumari way back in the year 1944.
In the suit, the legality and validity of the deed of adoption was not
under challenge. It was simply a suit for partition and the specific case
of the plaintiff was that the property which was acquired by the sole
defendant from Man Kumari was thrown into the joint family property
consisting of himself, his biological father and his biological full
brother.
19. Consequently, the suit involved in the present case, if decided in
favour of the appellants-the plaintiff, it would result in conferring ½
share of the suit property jointly in favour of legal heirs and successors
of the original plaintiff and ½ share in favour of the legal heirs of the
original defendant; if this appeal is dismissed, then the entire suit
property of Schedule B would not be subject to partition and would go
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jointly to the legal heirs and successors of the original defendant. The
impugned judgement passed by the 1st appellate court allowed the 1st
appeal and consequently dismissed the suit seeking partition after
holding that there was no unity of title and unity of possession between
the original plaintiff and the original defendant. Both the original
plaintiff and the original defendant have deceased and have been
substituted and in the present case. One of the legal heirs of the
deceased defendant, respondent no. 1 (d) has also expired during the
pendency of this second appeal and has not been substituted. It is not a
case where one of the defendants has not been substituted but it is a
case where one of the legal heirs who died after substitution has not
been substituted upon his death.
20. This Court is of the considered view that the estate of the
deceased sole defendant is sufficiently represented by the other
heirs/legal representatives on record and hence there will be no
abetment at all. For this, reference may be made to the judgement
passed by the Hon'ble Supreme Court in the case of Kishorilal (D)
through L.R and others versus Gopal and others in Civil Appeal
No.172 of 2026 and 173 of 2026 reported in 2026 INSC 48. The
Hon'ble Supreme Court has observed that there is a clear distinction
between non-substitution of deceased party and non-substitution of a
legal heir of a deceased party, in the latter, if the interest of the deceased
party is sufficiently represented by other legal heirs on record, there
will be no abetment. Para 38 (1) and 40 are quoted as under: -
"38. Upon consideration of the decisions cited by both sides,
the legal principles deducible therefrom, and relevant to the
issue in hand, are summarized below:
(1) Before declaring a suit or proceeding to have abated
on ground of non-substitution of the heirs/ legal
representatives of a deceased party, the Court must
examine whether the interest of the deceased party qua
the subject matter of the proceeding is sufficiently
represented by other parties already on record. If the
interest of the deceased party is sufficiently represented
by other parties already on record, and the decree/order
eventually passed in the suit or proceeding would not be
rendered non executable for absence of that party, the
suit or proceeding would not abate.
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2...
40. The decision in Dwarka Prasad (supra), relied by the
learned counsel for respondents, in our view, is not of
much help to the respondents because in that case the
vendor's interest was not represented at all. Whereas in
the present case, three out of four legal heirs of
Kishorilal (i.e., the vendor) were already on record. In
our view, there is a clear distinction between non-
substitution of the legal representatives/ legal heirs of a
deceased party and non-substitution of one of the heirs of
a deceased party. In the latter, if the interest of the
deceased party is sufficiently represented by other heirs/
legal representatives on record, there will be no
abatement as was held in Mahabir Prasad (supra) and
Bhurey Khan (supra). Therefore, in our view, Dwarka
Prasad's decision is distinguishable on facts."
21. This Court is of the considered view that there is no likelihood
of any conflicting decree if the appeal is allowed, at best, the original
plaintiff being represented through his legal heirs and representatives
and the original defendant also represented through his legal heirs and
representatives would be entitled to ½ and ½ share and on account of
non-substitution of one of the legal heirs of the deceased defendant, that
is respondent no. 1(d) there will be no abetment as the estate of the
deceased defendant is duly represented by the other legal heirs already
on record, who are the three full brothers of respondent no. 1(d).
22. This point is accordingly decided in favour of the appellants
and against the respondents.
Substantial Questions of Law No.(i)
Whether even after adoption of the defendant by Man Kumari,
Nathuni Chaudhuri and his two sons, namely, the plaintiff and the
defendant continued to be in occupation of the suit premises as
members of the Joint Hindu Family?
Substantial Questions of Law No.(ii)
Whether the plaintiff is entitled to any share in the suit property?
Both the questions being related are taken up together.
23. The perusal of the plaint and the written statement reveals that
the plaintiff and the defendant had same biological father namely
Nathuni Choudhary and the defendant was given in adoption to Man
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Kumari by a deed of adoption as back as in the year 1944. The plaintiff
in the plaint has not questioned the legality and validity of the adoption
of the defendant by Man Kumari. Further, the learned 1st appellate court
has rightly observed that even if he would have questioned the
adoption, the same would have been barred by limitation.
24. This Court is of the view that the learned 1st appellate court has
rightly taken note of the aforesaid fact and rightly come to a conclusion
that the point of adoption of the defendant by Man Kumari could not be
gone into in the present suit. It is further not in dispute that the Schedule
A property belonged to Man Kumari, who had adopted the defendant
by registered deed of adoption in the year 1944. However, the deed of
adoption itself was challenged by Bhagwat Prasad Bhagat, who had
married the sister of Man Kumari.
25. The aforesaid genealogy reveals that Kali Charan Bhagat had
two wives one of them was Man Kumari, who had no issue and another
wife had a daughter Jamuna Devi, who in turn had seven daughters
including Sabitri Devi and Sabitri Devi was married to Nathuni
Choudhary and both the defendant and the plaintiff were the sons of
Sabitri Devi and Nathuni Choudhary.
26. The property of Man Kumari i.e. Schedule A property of the
present suit during her lifetime was allocated to Bhagwat Prasad Bhagat
and Dwarika Prasad, and the Schedule B property of the present case
was allocated only to Dwarika Prasad as per compromise decree.
Consequently, during her lifetime, Man Kumari was totally divested of
her property contained in Schedule A and admittedly the Schedule B
property in the present case is a part of Schedule A property. In such
circumstances, the Schedule B property became the exclusive property
of Dwarika Prasad, who acquired the same in the capacity of the
adopted son of Man Kumari during the life time of Man Kumari.
Otherwise also, the property of Man Kumari, would have devolved only
upon the defendant being her adopted son and not upon the plaintiff and
it is nobody's case that the property in the hand of Man Kumari was
joint family property. The property of Man Kumari cannot devolve
upon children born through another wife of husband of Man Kumari.
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Further, another wife had no sons and only had a daughter, who in turn
had a number of daughters and Nathuni Choudhary (biological father
of the defendant and also the plaintiff) was grandson through one of the
daughter's daughters. This Court is of the considered view that the
property of Man Kumari, cannot be said to be joint family property of
Nathuni Choudhary and his two sons, the plaintiff and the defendant
and the property was the exclusive property of the defendant, who was
given in adoption to Man Kumari to the extent it related to Schedule B
of the plaint and the remaining portion of the property of Man Kumari
was allocated to the husband of her sister in the compromise arising out
of earlier suit which was compromised at the 1st appellate stage between
the present defendant, Man kumari and husband of the sister of Man
Kumari.
27. Thereafter, the learned 1st appellate court examined the
agreement dated 23.12.1948, marked Exhibit 9, which contained both
the old holding no.224 and the new holding no.315 of the suit property.
The court recorded that the plaintiff had categorically stated at
paragraph 34 of his evidence that the new holding no.315 of the suit
property came into being in the year 1949-50. The court further
observed that the mention of new holding number in the recital of the
alleged agreement, as back as on 23.12.1948, clearly proved that the
agreement dated 23.12.1948 was a colorable and tainted document
devoid of any credibility.
28. The 1st appellate court further scrutinized the agreement in the
light of the deposition of the plaintiff, who was examined as P.W. 7. He
deposed that the agreement was executed by Dwarika Prasad Bhagat
and Man Kumari in his presence. However, at the same time, during his
cross-examination, he has deposed that he came to know about the
agreement in the year 1977, after the death of his mother (Sabitri Devi).
The court observed that such evidence of P.W. 7 was inconsistent,
which also makes the agreement completely unacceptable and
unbelievable. The court ultimately held that, on the basis of said
agreement, the entire case of the plaintiff for his half share in the suit
property is not acceptable.
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29. The court also considered the case of the plaintiff that he had
contributed a sum of Rs.2,000/- to meet the expenses of litigation of the
previous suit and the appeal. The court rejected such plea by recording
a finding that the plaintiff himself was dependent from the year 1948 to
1954-55 and was penniless and he could not have contributed any
amount in the litigation as claimed by him. The court thereafter
observed that the plaintiff claimed that he was in occupation and
possession of only two rooms of the suit house standing on the suit
premises and has stated so in his evidence also. The court observed that
the plaintiff did not claim possession over any other portion of the suit
property and held that the plaintiff had not made out a case of joint
possession of the entire suit property by the parties including himself.
The court then held that in view of the suit property being vested in the
defendant Dwarika Prasad Bhagat after his adoption by Man Kumari,
there was no room or scope for a case of unity of title to the suit property
between the parties.
30. The court also observed that the plaintiff had not stated in his
plaint as to when he came in occupation and possession of the two
rooms. The court held that since there was no unity of title, the plaintiff
could not claim occupation and possession of the two rooms as a title
holder of the suit property. The court ultimately held that the plaintiff
was merely in permissive possession of the suit property as claimed by
the defendant in the written statement. The court also observed that
there is no dispute that prior to adoption in question, the suit property
stood in the name of Man Kumari, which stood admitted by the plaintiff
in his evidence and ever since the said adoption, all documents and
papers had stood in the name of the defendant Dwarika Prasad Bhagat.
The court also observed that no doubt the plaintiff has produced a
number of municipal tax receipts with respect to the suit property all of
which stood in the name of either Man Kumari or in the name of
Dwarika Prasad Bhagat and none of these municipal receipts save and
except Exhibit 1 disclosed that the plaintiff had paid the municipal taxes
in question. While referring to Exhibit 1, the court observed that it
revealed that the municipal tax was paid through the plaintiff on
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26.05.1989 i.e. after the institution of the suit by him. The court held
that the municipal receipts could not create any claim of title in favour
of the plaintiff with respect to the suit property.
31. The learned 1st appellate court recorded a finding that the suit
property was not joint Hindu family property. The 1 st appellate court
held that there were no unity of title and no unity of possession with
respect to the suit property between the parties, and the plaintiff never
claimed to be in joint possession of the entire suit property, rather he
was in possession of only two rooms. The learned 1st appellate court
has recorded a finding of fact that the plaintiff was in permissive
possession of said two rooms.
32. Admittedly, the suit property belonged to Man Kumari, who was
married to Kali Charan Bhagat as his 2nd wife after death of his 1st wife.
The full sister of Man Kumari was married with Bhagwat Prasad
Bhagat. From the first wife, Kali Charan Bhagat had a daughter namely,
Jamuna Devi and Jamuna Devi, inter alia, had a daughter namely,
Sabitri Devi married to Nathuni Choudhary and they had two sons, the
plaintiff and the defendant. The son of Nathuni Choudhary was given
in adoption to Man Kumari by registered deed of gift way back in the
year 1944 and the deed of adoption was challenged by the husband of
the sister of Man Kumari in T.S. No.18 of 1947, which was decreed,
against which, F.A. No. 11 of 1949, was filed which ended in a
compromise and the terms of compromise as recorded in the impugned
judgement passed by the learned 1st appellate court reveals that the
plaintiff of the said suit accepted that the defendant of the present suit
was adopted and in the said compromise, the schedule A property was
allocated jointly to the husband of the sister of Man Kumari and to the
adopted son of Man Kumari - the defendant of the present suit and out
schedule A property, the schedule B property was allotted only to the
defendant of the present suit-the adopted son.
33. This Court finds that the specific case of the plaintiff was that the
plaintiff had incurred huge expenses in conducting the previous suit and
the suit property (Schedule B) was thrown in the joint family
comprising of the plaintiff, the defendant and their biological father
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(Nathuni Choudhari) for which the plaintiff heavily relied upon the
agreement - Exhibit-9, and therefore, the property in the suit was
claimed to be partitioned ½ and ½ between the biological brothers, the
plaintiff and the defendant. However, at the same time, the adoption
deed of the year 1944 of the defendant by Man Kumari was not under
challenge.
34. Thus, in 1944, Man Kumari adopted the great-grandson of her
husband's second wife, born through the daughter of that second wife.
The genealogical table is as under: -
Kali Charan Bhagat (Husband) Bhagwat Prasad Bhagat (Husband)
| |
| | Koshal Kumari
Man Kumari Another wife
|
Jamuna Devi (daughter)
|
(Sabitrai Devi & 6 other daughters)
|
Nathuni Choudhary (husband of Sabitri Devi)
|
Dwarika Prasad (defendant) and Biswanath Prasad (plaintiff)
35. This Court is of considered view that Schedule B property
belonging to Man Kumari having been allotted to the defendant of the
present case in the compromise decree in which Man Kumari as well as
the defendant were also parties and admittedly the defendant of the
present case was the adopted son of Man Kumari, the said property
became the exclusive property of the defendant of the present case.
Since the defendant of the present case was the adopted son of Man
Kumari, the relationship of the defendant with his biological father, as
father and son, stood completely severed, and under such
circumstances, it cannot be said that the defendant of the present case
formed a joint family with his biological father and his biological
brother (the plaintiff).
36. The plea of the plaintiff that the property was thrown in the joint
family by the defendant and that the plaintiff had incurred expenses
with respect to the previous litigation concerning the suit property, and
the reliance on the agreement dated 23.12.1948, have been rejected by
the learned 1st appellate court by citing numerous reasons. Further, the
learned 1st appellate court has also recorded that even the plaintiff did
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not claim joint possession of the entire schedule B property. The
learned 1st appellate court has held that there was no unity of title and
unity of possession with respect to the suit property (Schedule B). The
findings of the learned 1st appellate court have been summarized above.
This Court finds no perversity in the matter of appreciation of evidences
placed on record by the learned 1st appellate court and this Court also
finds that the judgment has been passed by the learned 1 st appellate
court in accordance with law after taking into consideration every
aspect of the matter.
37. As a cumulative effect of the aforesaid findings, the substantial
question of law no. (i) is answered against the appellants (plaintiff) and
in favour of the respondents (defendant) by holding that even after
adoption of the defendant by Man Kumari, Nathuni Chaudhuri
(biological father of the defendant) and his two biological sons, namely,
the plaintiff and the defendant cannot be said to constitute a joint Hindu
family and hence cannot be said to be in occupation of joint family
property. The defendant got separated in all respects from the family of
his biological father upon his adoption by Man Kumari (his nani's step
mother).
38. Further, while answering the 2nd substantial question of law
against the appellants (plaintiff) and in favour of the respondents
(defendant), it is held that the Schedule B property was the exclusive
property of the defendant and the plaintiff is not entitled to half share
of the same as prayed for in the title suit.
39. Accordingly, this appeal is dismissed.
40. Pending interlocutory application, if any, is closed.
41. There shall be no order as to costs.
42. The office is to prepare decree accordingly.
43. Let a copy of this Judgment be communicated to the concerned
court through Fax/E-mail.
Pronounced on 29.01.2026
Saurav/- (Anubha Rawat Choudhary, J.)
Uploaded on 29.01.2026
