Madhya Pradesh High Court
Sakesh vs Mahesh on 25 August, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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1
I N T H E H I G H C O U R T O F M A D H YA P R A D E S H
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 25th OF AUGUST, 2025
SECOND APPEAL No.3249 of 2019
SAKESH
Versus
MAHESH AND OTHERS
Appearance:
Shri Ayushman Choudhary, Advocate for the appellant.
Shri Rohit Singh Solanki, Advocate(through V.C.) for the respondent [r-3].
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ORDER
1. The record of the Court of first instance and the First Appellate Court
have been received.
2. Heard learned counsel for the appellant on admission of appeal and the
substantial questions of law.
3. The respondents Mahesh, his mother Parvatibai and son Aniruddh had
filed a civil suit assailing the sale-deed dated 22.12.2009 executed by
defendant No.2 Rameshchandra @ Ashok Kumar in favour of defendant
No.1 Sakesh Soni and praying for declaring it null and void to the extent of
area of disputed property and declaration of joint user of the passage situated
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between the ancestral properties of both the parties. The plaintiff claimed that
his predecessor in the title, Chandulal and predecessor in the title of
defendant, Chunnilal were contesting a civil suit with regard to the disputed
property. In the Civil Suit No.31/1950, a compromise decree dated
13.02.1952 was passed, wherein it was decreed that the passage admeasuring
7 x 20 feet would be used by both the parties. The defendant no.2 had
executed sale-deed of his house in favour of the respondent No.2 including
the passage which was for common usage between the parties, therefore, the
sale-deed is null and void to the extent of passage admeasuring 7 x 15 feet.
Further, the well belonging to the plaintiff was shown as joint user in the
sale-deed which was exclusive property of the plaintiff, therefore, the
defendant Nos.1 and 2 have no right or title in the well.
4. The defendant Nos.2 and 3 in their written statement admitted that
their predecessor in title, Chunnilal and predecessor in title of plaintiff,
Chandulal were real brothers. The defendant No.2 had transferred the
property which came to his share in the family partition, to the defendant
No.1 by registered sale-deed. The plaintiffs are not title holder of the
disputed property. There is non-joinder of other family members in the suit.
5. The purchaser/defendant No.1 Sakesh(the appellant herein) did not file
any written statement.
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6. Learned record of the Court of first instance on completion of trial
vide judgment dated 23.12.2017, passed in RCSA No.42A/2010 passed the
following decree :-
1- पत व द कम क 2 द र पत व द कम क 1 क पक म त षतद तवकय पत तद क
22.12.2009 म उलख पव-पत म लमई 40 फट 5 इच ह&कर 28 फट ह' और
उसक पत म तदश क च +स,म म स मल क+आ असत रप स उलख ह' , इसतलए
उक तवकय पत उस स म क शन ह' ।
2- तवव तद 7 X 15 फ औस र एव गतलय र क उपय&ग -उपभ&ग क अत7कर
व द गण एव पत व द गण क& स मल रप स ह' ।
3- व द गण क मक क प छ पत म तदश म ख: क+आ व द गण क सत एव आत7पत
क ह' , त=सम पत व द गण क& क&ई अत7कर प प ह ह' ।
4- पत व द कम क 1 स 3 क& यह आदतश तकय = ह' तक व उ क द र औस र म
ब द व र क& अप वय स हट कर उस पवव A ख:त म कर द अनथ व द गण क& यह
अत7कर ह&ग तक नय लय क म धम स उस पवव ख:त म करव य।
5- पत व द कम क 1 स 3 क& यह आदतश तकय = ह' तक व व द गण क अप
लतटD क उपय&ग-उपभ&ग और औस र और गतलय र क उपय&ग-उपभ&ग म & सय
ब 7 उतन कर और ह तकस अन क म धम स ब 7 उतन कर व
6- पत व द गण अप एव व द गण क व द वय सय वह करग।
7- अत7वक श+ल पम तण ह& पर य त य सच अ +स र, =& भ कम ह& दय ह&।
द +स र तHक ब य = व।
7. The judgment and decree dated 23.12.2017 was assailed in First
Appeal No.RCA 13/2018 by defendant No.1 Sakesh. The first Appellate
Court i.e. Vth Additional District Judge, Dhar(M.P.) vide judgment dated
20.08.2019 dismissed the appeal and affirmed the impugned judgment.
8. Learned counsel for the present appellant Sakesh referring to the
evidence on record contends that the respondent/Plaintiff Mahesh was given
in adoption to his uncle Mansukhlal. In a complaint filed under Section 138
of the Negotiable Instrument Act and the Vakalatnama filed in that matter,
Mahesh had represented himself as son of Mansukhlal. The name of Mahesh
was mutated on properties of Mansukhlal after his demise, therefore, Mahesh
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has lost his right, title or interest in the property of his biological father
Purshottam. Mahesh had no right over the disputed property, therefore, he
was not entitled to challenge the execution of sale deed by defendant No.2 in
favour of defendant No.1. Plaintiff/Respondent No.1 Mahesh was not in
possession of the property, therefore, he cannot claim joint user over the
disputed property. Learned counsel for the appellant proposed the following
substantial questions of law :
(a) Whether, the learned Judges of the Courts below grossly erred in not dismissing the
suit on the ground that the suit proeprty was not properly described in the plaint ?
(b) Whether the learned Judges of the Courts below grossly erred in taking into account
the document Ex-P/17 i.e. compromise application despite the fact it had no mention
about the alleged suit properties ?
(c) Whether, the learned Judges of the Courts below grossly erred in not framing the
issue regarding adoption of the respondent No.1 by Mansukhlal ?
(d) Whether, the learned Judges of the Courts below have committed grave error of law
and facts both in holding that/in not taking into account the testimony of the respondent
Mahesh wherein he has categorically admitted that he was adopted by Mansukhlal ?
(e) Whether, the findings recorded by the Courts below is based on misreading of
evidence ?
(f) Whether the findings recorded by the Courts below is perverse and illegal ?
9. Heard the contentions and perused the record.
10. In the matter of Chandrabhan v. Saraswati, reported in (2022) 20
SCC 199, the Apex Court held as under:-
22. It is well settled that a second appeal under Section 100 of the Civil
Procedure Code, 1908 ("CPC") can only be entertained on a substantial
question of law. In H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496, this Court
held :
"16. In our opinion, therefore, the judgment of the High Court suffers from
serious infirmities. It suffers from the vice of exercise of jurisdiction
which did not vest in the High Court under the law. Under Section 100 of
the Code (as amended in 1976) the jurisdiction of the High Court to
interfere with the judgments of the courts below is confined to hearing on
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substantial questions of law. Interference with finding of fact by the High
Court is not warranted if it involves re-appreciation of evidence (see
Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 and
Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438).
The High Court has not even discussed any evidence. No basic finding of
fact recorded by the courts below has been reversed much less any reason
assigned for taking a view contrary to that taken by the courts below. The
finding on the question of readiness and willingness to perform the
contract which is a mixed question of law and fact has been upset. It is
statutorily provided by Section 16(1)(c) of the Act that to succeed in a suit
for specific performance of a contract the plaintiff shall aver and prove
that he has performed and has always been ready and willing to perform
the essential terms of the contract which were to be performed by him
other than the terms the performance of which has been prevented or
waived by the defendant."
23. In Ram Prasad Rajak v. Nand Kumar & Bros., (1998) 6 SCC 748, this
Court held that :
"7. ... Once the proceeding in the High Court is treated as a second appeal
under Section 100CPC, the restrictions prescribed in the said Section would
come into play. The High Court could and ought to have dealt with the
matter as a second appeal and found out whether a substantial question of
law arose for consideration. Unless there was a substantial question of law,
the High Court had no jurisdiction to entertain the second appeal and
consider the merits."
24. In Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC
438, this Court held that existence of substantial question of law was
the sine qua non for the exercise of jurisdiction under Section 100CPC.
*********
32. The principles relating to Section 100CPC relevant for this case may be
summarised thus:
32.1. An inference of fact from the recitals or contents of a document is a
question of fact. But the legal effect of the terms of a document is a
question of law. Construction of a document involving the application of
any principle of law, is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a principle of law in
construing a document, it gives rise to a question of law.
32.2. The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A question of
law having a material bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding precedents and
involves a debatable legal issue. A substantial question of law will also
arise in a contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents, but the court
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below has decided the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the substantial question of law
arises not because the law is still debatable, but because the decision
rendered on a material question, violates the settled position of law.
32.3. The general rule is that the High Court will not interfere with
findings of facts arrived at by the courts below. But it is not an absolute
rule. Some of the well-recognised exceptions are where (i) the courts below
have ignored material evidence or acted on no evidence; (ii) the courts have
drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of proof. When
we refer to "decision based on no evidence", it not only refers to cases
where there is a total dearth of evidence, but also refers to any case, where
the evidence, taken as a whole, is not reasonably capable of supporting the
finding.
11. The Supreme Court in case of Naresh and others Vs. Hemant and
others reported in (2022) SCC 802 held as under:-
11. The High Court invoked the presumption without proper consideration
and appreciation of the facts considered and dealt with by two courts
holding by reasoned conclusions why the presumption stood rebutted on
the facts. The High Court also committed an error of record by holding that
there was no evidence that Trimbakrao Ingole alone had constructed the
house, a finding patently contrary to the admission of PW1 in his evidence.
The fact that mutation also was done in the name of Trimbakrao Ingole
alone which remain unchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation of evidence
amounted to perversity is completely unsustainable. No finding has been
arrived at that any evidence had been admitted contrary to the law or that a
finding was based on no evidence only in which circumstance the High
Court could have interfered in the second appeal.
12. The High Court therefore manifestly erred by interfering with the
concurrent findings on facts by two courts below in exercise of powers
under Section 100, Civil Procedure Code, a jurisdiction confined to
substantial questions of law only. Merely because the High Court may have
been of the opinion that the inferences and conclusions on the evidence
were erroneous, and that another conclusion to its satisfaction could be
drawn, cannot be justification for the High Court to have interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673,
this court with regard to the scope for interference in a second appeal with
facts under Section 100 of the Civil Procedure Code observed as follows:
"12. ....The admissibility of evidence is no doubt a point of
law, but once it is shown that the evidence on which courts of
fact have acted was admissible and relevant, it is not open to a
party feeling aggrieved by the findings recorded by the courts
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of fact to contend before the High Court in second appeal that
the said evidence is not sufficient to justify the findings of
fact in question. It has been always recognised that the
sufficiency or adequacy of evidence to support a finding of
fact is a matter for decision of the court of facts and cannot be
agitated in a second appeal. Sometimes, this position is
expressed by saying that like all questions of fact, sufficiency
or adequacy of evidence in support of a case is also left to the
jury for its verdict. This position has always been accepted
without dissent and it can be stated without any doubt that it
enunciates what can be properly characterised as an
elementary proposition. Therefore, whenever this Court is
satisfied that in dealing with a second appeal, the High Court
has, either unwittingly and in a casual manner, or deliberately
as in this case, contravened the limits prescribed by s. 100, it
becomes the duty of this Court to intervene and give effect to
the said provisions. It may be that in some cases, the High
Court dealing with the second appeal is inclined to take the
view that what it regards to be justice or equity of the case has
not been served by the findings of fact recorded by courts of
fact; but on such occasions it is necessary to remember that
what is administered in courts is justice according to law and
considerations of fair play and equity however important they
may be, must yield to clear and express provisions of the law.
If in reaching its decisions in second appeals, the High Court
contravenes the express provisions of section 100, it would
inevitably introduce in such decisions an element of
disconcerting unpredictability which is usually associated
with gambling; and that is a reproach which judicial process
must constantly and scrupulously endeavour to avoid."
12. The Supreme Court in case of Rattan Dev Vs. Pasadm Devi reported
in (2002) 7 SCC 441 held that non application of mind by the first Appellate
Court to the evidence available on record raises a substantial question of fact
requiring hearing of second appeal on merits. The first Appellate Court is
bound to apply mind to all the evidence available on record and test the
legality of findings arrived at by the Court of first instance. In case of
Kulwant Kaur and others Vs. Gurdial Singh Mann (Dead) by LRs and
others reported in (2001) 4 SCC 262, it was observed that:-
34. Admittedly, Section 100 has introduced a definite restriction on to the
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exercise of jurisdiction in a second appeal so far as the High Court is concerned.
Needless to record that the Code of Civil Procedure Amendment Act, 1976
introduced such an embargo for such definite objectives and since we are not
required to further probe on that score, we are not detailing out, but the fact
remains that while it is true that in a second appeal a finding of fact even if
erroneous will generally not be disturbed but where it is found that the findings
stands vitiated on wrong test and on the basis of assumptions and conjectures and
resultantly there is an element of perversity involved therein, the High Court in our
view will be within its jurisdiction to dealt with the issue. This is, however, only in
the event such a fact is brought to light by the High Court explicitly and the
judgment should also be categorical as to the issue of perversity vis-a-vis the
Concept of justice. Needless to say however, that perversity itself is a substantial
question worth adjudication -what is required is a categorical finding on the part of
the High Court as to perversity. In this context reference be had to Section 103 of
the Code which reads as below:
103. In any second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the appeal-
(a) which has not been determined by the lower Appellate Court or by
both the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or
(c) Courts by reason of a decision on such question of law as is referred
to in the Section 100.
The requirements stand specified in Section 103 and nothing short of it will bring it
within the ambit of Section 100 since the issue of perversity will also come within
the ambit of substantial question of law as noticed above. The legality of finding of
fact cannot but be termed to be a question of law. We reiterate however, but there
must be a definite finding to that effect in the judgment of the High Court so as to
make it evident that Section 100 of the Code stands complied with.
13. The record of the Court of first instance and the First Appellate Court
is perused in the light of aforestated proposition of law.
14. The Court of first instance in Para 19 to 22 of the judgment considered
the effect of compromise decree between predecessor in title of the parties.
The Court of first instance relying on the judgment of Byram Pestonji
Gariwala v. Unin Bank of India And. Ors. [AIR 1991 SC 2234] concluded
that a compromise decree is binding on the parties to the compromise and it
is executable decree and has the effect of constructive res-judicata and
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estoppel between the parties and their successor in interest. The First
Appellate Court in Para 47 to 51 of the judgment reappreciated the evidence
and affirmed the findings of the Court of first instance.
15. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao
reported in AIR 1967 SC 591 and Sunderabai v. Devaji Shankar
Deshpande reported in AIR 1954 SC 82, the Supreme Court held that since a
compromise decree is not a decision of the court, the principle of res judicata
cannot be made applicable. However, it was held that the compromise decree
may in effect create estoppel by conduct between the parties and the parties
by estoppel will be prevented from initiating a subsequent suit. In
Sunderabai (supra) it was observed:
12. The bar of res judicata however, may not in terms be applicable in the
present case, as the decree passed in Suit No. 291 of 1937 was a decree in
terms of the compromise. The terms of Section 11 of the CPC would not be
strictly applicable to the same but the underlying principle of estoppel would
still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the
CPC at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:
"The present section does not apply in terms to consent decrees; for it
cannot be said in the cases of such decrees that the matters in issue between
the parties 'have been heard and finally decided' within the meaning of this
section. A consent decree, however, has to all intents and purposes the same
effect as res judicata as a decree passed in invitum. It raises an estoppel as
much as a decree passed in invitum."
16. The Court of first instance and the First Appellate Court, relying on the
compromise decree dated 13.02.1952 committed no error in concluding that
the plaintiff had suceeded to prove that the sale-deed executed by defendant
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No.2 in favour of defendant No.1 is void to the extent of common passage
admeasuring 7' X 15 feet and the well.
17. The Supreme Court, while considering the question of proof of
adoption and essential requirements for valid adoption, in the case of L. Devi
Prasad (dead) by Lrs Vs. Smt. Tribeni Devi and others reported in 1970(1)
SCC 677 observed as under :-
7. While considering the question of proof of the adoption pleaded, we
must bear in mind the fact that the same is alleged to have taken place in 1892
nearly 54 years before the present suit was instituted. Therefore, naturally, it
was extremely difficult for Shyam Behari Lai to adduce any oral evidence in
proof of that adoption. All the persons who could have known about the
adoption are likely to have died. Shyam Behari Lai himself could not speak to
that adoption. His evidence is at best hearsay. It is true, as observed by this
Court in Addagada Raghayamma and anr. v. Addagada Chenchamma and
anr. (1964) 2 SCR 933 that it is settled that a person, who seeks to displace the
natural succession to property by alleging an adoption must discharge the
burden that lies upon him by proof of the factum of adoption and its validity.
Again as held by this Court in Lakshman Singh Kothari v. Smt. Rup Kanwar
(1962) 1 SCR 477, that in order that an adoption may be valid under the
Hindu law, there must be a formal ceremony of giving and taking. This is true
of the regenerate castes as well as of the Sudras. Although no particular form
is prescribed for the ceremony, the law requires that the natural parent should
hand over the adoptive boy and the adoptive parent must receive him, the
nature of the ceremony varying according to the circumstances. In the course
of the judgment Subba Rao J. (as he then was) who spoke for the Court quoted
with approval the following observations of Gopalchandra Sarkar in his book
on Hindu Law, 8th Edn.;
"The ceremonies of giving and taking are absolutely necessary
in all cases. These ceremonies must be accompanied by the
actual delivery of the child; symbolical or constructive
delivery by the mere parol expression of intention on the part
of the giver and the taker without the presence of the boy is
not sufficient. Nor are deeds of gift and acceptance executed
and registered in anticipation of the intended adoption nor
acknowledgment, sufficient by themselves to constitute legal
adoption, in the absence of actual gift and acceptance
accompanied by actual delivery; a formal ceremony being
essential for that purpose."
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8. That is also the view expressed in Mayne's Hindu Law wherein it is
observed that the giving and receiving are 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.
9. There is no doubt that the burden of proving satisfactorily that he was
given by his natural father and received by Gopal Das as his adoptive son is on
Shyam Behari Lal. But as observed by the Judicial Committee of the Privy
Council in Rajendrao Nath Holder v. Jogendro Nath Banerjee and ors.1871
SCC Online PC 11; that although the person who pleads that he had been
adopted is bound to prove his title as adopted son, as a fact yet from the
long period during which he had been received as an adopted son, every
allowance for the absence of evidence to prove such fact was to be favourably
entertained, and that the case was analogous to that in which the legitimacy of
a person in possession had been acquiesced in for a considerable time, and
afterwards impeached by a party, who had a right to question the legitimacy,
where the defendant, in order to defend his status, is allowed to invoke against
the claimant every presumption which arises from long recognition of his
legitimacy by members of his family; that in the case of a Hindoo, long
recognition as an adopted son, raised even a stronger presumption in favour of
the validity of. his adoption, arising from the possibility of the loss of his
rights in his own family by being adopted in another family. In Rup Narain
and anr. v. Mst. Gopal Devi and ors; 1909 SCC Online PC 3, the Judicial
Committee observed, that in the absence of direct evidence much value has to
be attached to the fact that the alleged adopted son had without controversy
succeeded to his adoptive father's estate and enjoyed till his death and that
documents during his life and after his death were framed upon the basis of
the adoption. A Division Bench of the Orissa High Court in Balinki Padhano
and anr. v. Gopalkrishna Padhano and ors. AIR 1964 Orissa 117; held that
in the case of an ancient adoption evidence showing that the boy was treated
for a long time as the adopted son at a time when there was no controversy is
sufficient to prove the adoption although evidence of actual giving and taking
is not forthcoming. We are in agreement with the views expressed in the
decisions referred to above.
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 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
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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 matters 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.
18. In the case of M. Vanaja Vs. M. Sarla Devi (dead) reported in (2020)
5 SCC 307, it was held as under :
14. Section 7 provides that the male Hindu who is of sound mind and is not a
minor has the capacity to take a son or a daughter in adoption. The consent of
his wife has been made mandatory by the proviso to Section 7. Section 9 deals
with persons who are capable of giving a child in adoption. The other
conditions for avalid adoption are stipulated in Section 11 of the Act of 1956.
One such condition is 11 (6) which is as under:-
"11. Other conditions for a valid adoption.
Xx
(vi) the child to be adopted must be actually given and taken in adoption by
the parents or guardian concerned or under their authority with intent to
transfer the child from the family of his birth (or in the case of an abandoned
child or child whose parentage is not known, from the place or family where it
has been brought up) to the family of its adoption:
(vii) Provided that the performance of data homam shall not be essential to
the validity of adoption"
15. A plain reading of the above provisions would make it clear that
compliance of the conditions in Chapter I of the Act of 1956 is mandatory for
an adoption to be treated as valid. The two important conditions as mentioned
in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a
male Hindu adopts a child and proof of the ceremony of actual giving and
taking in adoption. The Appellant admitted in her evidence that she does not
have the proof of the ceremony of giving and taking of her in adoption.
Admittedly, there is no pleading in the plaint regarding the adoption being in
accordance with the provisions of the Act. That apart, the Respondent who is
the adoptive mother has categorically stated in her evidence that the Appellant
was never adopted though she was merely brought up by her and her husband.
Even the grand- mother of the Appellant who appeared before the Court as
PW-3 deposed that the Appellant who lost her parents in her childhood was
given to the Respondent and her husband to be brought up. PW 3 also stated
in her evidence that the Appellant was not adopted by the Respondent and her
husband. Therefore, the Appellant had failed to prove that she has been
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adopted by the Respondent and her husband Narasimhulu Naidu.
16. The Appellant relied upon a judgment of this Court in L. Debi Prasad
(Dead) by Lrs. (supra) to submit that abundant evidence submitted by her
before Court would point to the fact that she was brought up as the daughter
of the Respondent and her husband (Late) Narasimhulu Naidu. Such evidence
can be taken into account to draw inference that she was adopted by them.
The facts in L.Debi Prasad (Dead) by Lrs. (supra) case are similar to those in
the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in
the year 1892 when he was an infant. Shyam Behari Lal was unable to
establish the actual adoption but has produced considerable documentary
evidence to show that he was treated as the son of Gopal Das for a quarter of
century. This Court accepted the submission of Shyam Behari Lal and held
that there was sufficient evidence on record to infer a valid adoption. Though
the facts are similar, we are unable to apply the law laid down in L. Debi
Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by
Lrs. (supra) case pertains to adoption that took place in the year 1892 and we
are concerned with an adoption that has taken place after the Act of 1956 has
come into force. Though the Appellant has produced evidence to show that
she was treated as a daughter by (Late) Narasimhulu Naidu and the
Defendant, she has not been able to establish her adoption. The mandate of
the Act of 1956 is that no adoption shall be valid unless it has been made in
compliance with the conditions mentioned in Chapter I of the Act of 1956.
The two essential conditions i.e. the consent of the wife and the actual
ceremony of adoption have not been established. This Court by its judgment
in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. (2011) 2 SCC 298 held that
the consent of the wife is mandatory for proving adoption.
19. So far as the objection relating to adoption of the plaintiff by
Mansukhlal is concerned, the factum of adoption of plaintiff Mahesh by
Mansukhlal was not properly pleaded and proved by the defendant. Stray
reference of Mansukhlal as father in other matter does not establish the
factum of adoption and debar the plaintff Mahesh from succession to the
property of his biological father. Further, the suit was filed by plaintiff
Mahesh jointly with his mother Parvati Bai. Parvati Bai is successor in
interest of Purshottam Agrawal and Chandulal. Therefore, the Court of first
instance and the First Appellate Court committed no error in granting the
NEUTRAL CITATION NO. 2025:MPHC-IND:23632
impugned decree in favour of plaintiffs. The concurrent findings of the Court
of first instance and the first Appellate court are based on proper appreciation
of evidence on record. The findings of the court of first instance and first
Appellate Court cannot be said to be against the weight of evidence on record
or in ignorance of any material evidence on record. There is neither
impropriety nor perversity in the concurrent findings. Therefore, no case is
made out to interfere in concurrent finding of facts.
20. In view of the above discussion, this Court is of the considered opinion
that the appellant has failed to make out any perversity and substantial reason
for admission of present second appeal. No substantial question of law is
made out for consideration. Therefore, present second appeal is dismissed.
21. Both the parties shall bear their own cost.
22. Record of the Court of first instance as well as first Appellate Court be
remitted alongwith copy of this judgment after necessary formalities.
C.C.as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
pn
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