Smt. Asha Sanghi Wife Of Shri ... vs Neeraj Jain (Tholiya) Son Of Shri ...
2023 Latest Caselaw 5909 Raj/2

[2023:RJ-JP:28463]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Civil First Appeal No. 1262/2019

Smt. Asha Sanghi Wife Of Shri Jitendra Sanghi, Aged About 70
Years, Resident Of A-76, Bhabha Marg, Tilak Nagar, District
Jaipur (Rajasthan)
                                                               ----Appellant-Plaintiff
                                        Versus
1.       Neeraj Jain (Tholiya) Son Of Shri Nirmal Kumar Jain,
         Resident Of House No 40-A, Milap Nagar, Tonk Road,
         Jaipur Or Suman Bombay Dying Showroom, At Road,
         Opposite Railway Station, Guwahati (Aasam)
                                         ...Contesting Respondent-Defendant

2. Lal Chand Tholiya, Son Of Shri Ram Chandra Tholiya, Resident Of House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur (Died During Suit)

3. Goverdhan Lal, Son Of Shri Kishan Chand, Proprietor Govind Restaurant, Resident Of House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur

4. Rameshwar Syonarain Halwai, Situated At House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur

5. Ram Charan Tanwar, Son Of Shri Pooran Chand, Proprietor Wilson Photo Studio, Resident Of House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur

6. Ajay Purohit, Son Of Shri Jalam Singh, Resident Of House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur

7. Laxman Mittal, Son Of Shri Pritam Chand Mittal, Resident Of House No 2433, Kukdo Ka Darwaja, Ghee Walo Ka Rasta, Johari Bazar, Jaipur ...Proforma Respondents-Defendants

8. Anil Kumar Jain, Son Of Late Shri Sohan Lal Jain, Resident Of 12, Mahaveer Nagar - Ii, Maharani Farm, Durgapura, Jaipur

9. Kusum Sanghi, Wife Of Shri Arun Sanghi, Resident Of Siwad Area, Bapu Nagar, Jaipur

10. Smt Subina, Wife Of Shri Ankur Jain, Daughter Of Late

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Shri Sunil Kumar Jain, Resident Of America USA (Name deleted) ...Proforma Respondents-Defendants

11. Sunil Kumar Jain, Son Of Late Shri Sohan Lal Jain, Resident Of 114, Mahaveer Nagar - Ii, Durgapura, Jaipur (Died During Suit) Through Legal Representatives - 11/1. Smt Sunila Jain, Widow Of Late Shri Sunil Kumar Jain, Resident Of 114, Mahaveer Nagar - Ii, Durgapura, Jaipur 11/2. Sunny, Son Of Late Shri Sunil Kumar Jain, Resident Of 114, Mahaveer Nagar - Ii, Durgapura, Jaipur

---Proforma Respondents-Plaintiff No.2/1 & 2/2

For Appellant(s) : Mr. J. P. Goyal, Senior Counsel with Ms. Jyoti Swami, Adv. & Ms. Minal Bhargava, Adv.

Mr. Mohd. Adil, Adv.

For Respondent(s) : Mr. Bipin Gupta, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

DATE OF JUDGMENT 12/10/2023

Instant appeal filed by the appellant-plaintiff (for short 'the

plaintiff') against the judgment and decree dated 10.12.2019

passed by Additional District & Sessions Judge No.15, Jaipur

Metropolitan in Civil Suit No.32/2012, whereby learned trial court

had dismissed the suit filed by the plaintiff.

Facts of the case are that plaintiff and respondent No.11

jointly filed a civil suit for permanent injunction and mandatory

injunction against the respondents-defendants (for short 'the

defendants') claiming themselves to be owners of the suit

properties being natural successors of deceased Smt Lalita Devi

and Late Shri Gopi Chand. Respondent No.1-defendant (for short

'the defendant No.1') claimed himself to be sole owner of the suit

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properties on the basis of Will dated 10.09.1996 of Smt Vimla

Devi and stating himself to be adopted son of Smt Vimla Devi.

Trial court has framed the following issues on the basis of

pleadings of the parties:

(1) Whether plaintiffs are entitled to get permanent injunction

against defendants to the effect that neither they should not

mortgage, sale, gift, transfer, destroy the suit property as

mentioned in para 8 of the plaint in favour of any person,

company, institution and in favour of defendant Nos.2 to 7 nor to

get it done from others?

(2) Whether plaintiffs are entitled to get mandatory injunction to

the effect that defendant Nos.2 to 7 should not pay rent of the suit

property to defendant No.1 and either pay the same directly to

plaintiffs or deposit the same in the Court?

(3) Whether plaintiffs are legitimate children of Gopi Chand Ji.

Late Gopi Chand had not executed any Will and in the year 1972

as he was unable to execute any will?

(4) Whether Smt Vimla Devi Tholia had adopted Neeraj Jain

younger son of her younger brother Nirmal Kumar Jain by

registered adoption deed, so defendant is the absolute owner of all

movable and immovable property of Late Sh. Prakash Chand Jain

and Smt. Vimla Devi?

(5) Relief?

In order to prove his case, plaintiffs examined PW1-Asha

Sanghi, PW2-Jitendra, PW3-Naresh and exhibited some

documents. Defendants examined DW1-Neeraj, DW2-Nirmal

Kumar, DW3- Hemlata, DW4-Mahendra Kumar and exhibited some

documents. Trial court after considering the evidence led by the

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parties and hearing the arguments of both sides, dismissed the

suit filed by the plaintiff.

Learned senior counsel for the plaintiffs submits that the

judgment dated 10.12.2019 passed by the trial court is contrary

to the facts as well as law and liable to be quashed and set aside.

Learned senior counsel for the plaintiffs also submits that the trial

court had not appreciated the evidence led by the parties in the

right perspective. Learned senior counsel for the plaintiffs also

submits that the defendant No.1 failed to prove the will dated

13.09.1978 executed by Sh. Gopi Chand in favour of Prakash

Chand. Learned senior counsel for the plaintiffs also submits that

the said will was not proved according to law. So, plaintiff is

entitled for 1/3rd share in the properties of Late Gopi Chand.

Learned senior counsel for the plaintiffs also submits that

defendant No.1 relied on will executed by Smt Vimla Devi on

10.09.1996 but said will was not proved as per law. Smt Vimla

Devi was not absolute owner of the properties. Learned senior

counsel for the plaintiffs also submits that as per contention of the

defendant No.1, he was adopted by Smt Vimla Devi on

12.09.1997 but adoption deed was registered on 04.03.2000.

Learned senior counsel for the plaintiffs also submits that no

adoption ceremony took place. So, giving and taking ceremony

was not conducted. Learned senior counsel for the plaintiffs also

submits that at the time of registration of adoption deed,

defendant No.1 was 17 years old, so legally he could not be

adopted. So, adoption deed is void ab initio. Finding of the trial

court that plaintiffs had not challenged the adoption deed and Will

is contrary to the fact because there is no need to challenge the

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void adoption deed. Learned senior counsel for the plaintiffs also

submits that the trial court wrongly drew the presumption of

Section 16 of Hindu Adoption and Maintenance Act, 1956. Learned

senior counsel for the plaintiffs also submits that plaintiffs had

adduced ample evidence to rebut the fact that defendant No.1 was

never adopted and will was never proved by him. So, judgment of

the trial court be set aside.

Learned senior counsel for the plaintiff has placed reliance

upon the following judgments : (1) Jai Singh Vs. Shakuntala

reported in 2002 (3) SCC 634; (2) Sahodora Bai (deceased)

(Smt.) throguh LRs VS. Satya Prakash Mahajan & Anr.

reported in 2018 (1) DNJ (Raj.) 305; (3) Madhusudan Das

Vs. Smt. Narayani Bai & Ors. reported in 1983 (1) SCC 35;

(4) Deepsingh Vs. Sarwansingh reported in 1951 RLW (Raj.)

160; (5) Budharam Vs. Beerbal reported in 1954 RLW (Raj.)

608 and (6) Basanti Bai (Smt.) Vs. Smt. Sheela Bai reported

in 2019 (3) MPWN 34.

Learned counsel for the defendants has opposed the

arguments advanced by learned counsel for the plaintiffs and

submitted that the trial court rightly dismissed the suit filed by the

plaintiffs because plaintiffs had filed the injunction suit and they

had not challenged the validity of will and adoption deed.

Defendant No.1 had proved the adoption deed by adducing the

evidence of his natural father, mother and attesting witnesses of

so-called adoption deed. Learned counsel for the defendants also

submitted that the trial court rightly drew the presumption under

Section 16 of Hindu Adoption and Maintenance Act, 1956. So,

present appeal be dismissed.

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Learned counsel for the defendants has placed reliance upon

the judgment of Hon'ble Apex Court in the case of Mst. Deu Ors.

Vs. Laxmi Narayan & Ors. in Civil Appeal No.2227/1982

decided on 01.08.1996.

I have considered the arguments advanced by learned

counsel for the plaintiffs as well as learned counsel for the

defendants.

It is an admitted position that plaintiffs had filed the

injunction suit but they had not challenged the so-called will and

adoption deed. Defendant No.1 by way of evidence, proved his

adoption and the trial court rightly drew presumption under

Section 16 of Hindu Adoption and Maintenance Act, 1956 that

adoption deed is according to law. Defendant No.1 had proved the

adoption deed by adducing evidence of his natural father, mother

and attesting witnesses. So, in my considered opinion, trial court

has rightly dismissed the suit filed by the plaintiffs. So, present

appeal being devoid of merit, is liable to be dismissed, which

stands dismissed accordingly.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J

Jatin /518

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