HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. .. (1) S.B. Civil First Appeal No. 23 / 1993 (Arising out of Civil Original Suit No.104/1987) Swaroop Singh son of Doongar Singhji Devra, resident of Mev, District: Sirohi. –---Appellant Versus Subhash Singh son of Shri Khuman Singhji Ranawat, resident of Kankarva, Tehsil Kapasan, District Chittorgarh. ----Respondent (2) S.B. Civil First Appeal No.154 / 1992 (Arising out of Civil Original Suit No.47/1986) Appellants : Legal Representatives of Nathu Lal son of Modilal Mali: 1/1. Legal Representatives of Ganesh Lal son of Nathulal Mali: 1/1/1. Smt. Geeta Mali widow of Ganesh Mali 1/1/2. Chetan Mali son of Ganesh Mali Both residents of New Mali Colony, Jhada Aamla Tekri Road, Udaipur 1/1/3. Sunita Mali wife of Puneet Bamnoshia 1/1/4. Jaya Mali wife of Suresh Mali 1/1/5. Sashi Mali wife of Wardichand Mali All daughters of Ganesh Mali All residents of 16, New Ashok Vihar, Chandanwadi Road, Gali No. 4, Udaipur (2 of 35) [CFA-154/1992] 1/2. Smt. Shanta Devi wife of Shri Narainlal (d/O Nathulal Mali) Resident of Bhopalpura, Udaipur Through power of attorney holder Narainlal son of Hari Ram Mali resident of Sardarpura, Udaipur. ----(defendant) Versus Respondent : Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of Kankarva, Tehsil Kapasan, District Chittorgarh. ----(plaintiff) Connected With (3) S.B. Civil First Appeal No. 141 / 1992 (Arising out of Civil Original Suit No.48/1986) Swaroop Singh son of Shri Doongar Singhji Devra, resident of Mev, District Sirohi. –---Appellant Versus Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of Kankarva, Tehsil Kapasan, District Chittorgarh. ---Respondent (4) S.B. Civil First Appeal No. 142 / 1992 (Arising out of Civil Original Suit No.50/1986) Narayan Lal son of Shri Hari Ramji b/c Mali, resident of Sardarpura, Udaipur. ----Appellant Versus Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of Kankarva, Tehsil Kapasan, District Chittorgarh. ----Respondent (3 of 35) [CFA-154/1992] (5) S.B. Civil First Appeal No. 22 / 1993 (Arising out of Civil Original Suit No.49/1986) Swaroop Singh son of Shri Doongar Singhji Devra, resident of Mev, District Sirohi. –---Appellant Versus Subhash Singh son of Shri Kuman Singhji Ranawat, resident of Kankarva, Tehsil Kapasan, District Chittorgarh. ----Respondent _____________________________________________________ For Appellant(s) : Ms Rekha Borana For Respondent(s) : Mr. Arpit Bhoot _____________________________________________________ JUSTICE DINESH MEHTA Judgment 02.04.2018 The present group of appeals arise out of five separate judgments dated 20.08.1992 passed by learned Addl. District Judge No.2, Udaipur (hereinafter referred to as ‘the Trial Court’) in five civil suits involving common question of facts and law, questioning the identical sale deeds executed by defendant No.2 – Smt. Anand Kumari. All the five appeals are being decided conjointly vide this common order. However, the facts relating to Civil First Appeal No.23/1993 (Swaroop Singh Vs. Subhash Singh), emanating from the judgment and decree passed in Civil Original Suit No.104/1987 (Old No.103/1978) are being taken into consideration, as a lead case. (4 of 35) [CFA-154/1992] The facts apropos this appeal are that one Khuman Singh sold a part of open land ‘Badi’, vide registered sale deed dated 24.08.1996 to his wife – Smt. Anand Kumari. Said Khuman Singh died on 02.01.1972, whereafter his wife Smt. Anand Kumari adopted Subhash Singh, the plaintiff – respondent herein as per Hindu customs and rituals. Anand Kumari – owner of the land in question thereafter sold a part of the said land to defendant No.1 – Raj Kumari and executed a registered sale deed on 25.05.1976. The plaintiff Subhash Singh – the adopted son, instituted a suit for declaration and possession, inter alia, contending that his natural father Narendra Singh Ranawat had given him in adoption to Sh. Khuman Singh Ranawat, on whose behalf, the defendant No.2 – Smt. Anand Kumari had observed the requisite ceremony as per the customs prevalent. The plaintiff stated that apart from observing customary formalities on 14.1.1972, the defendant No.2 – Smt. Anand Kumari executed an adoption deed, ratifying the adoption, which was on behalf of herself and her husband Shri Khuman Singh Ranawat. It has also been asserted in the plaint that at the time of adoption, with a view to protect the plaintiff’s interest, who was a minor at the relevant time, the defendant No.2 had also executed an agreement (on the same date viz. 14.1.1972), in favour of his natural father Narendra Singh, inter alia, assuring that all the properties belonging to her and her husband would not be sold and that the plaintiff would be the sole owner / successor for the same. (5 of 35) [CFA-154/1992] Laying challenge to the sale deed dated 25.05.1976, the plaintiff contended that the contentious sale of plot No.225 carved out of House No.26/560, situated in Sardarpura, Udaipur by the defendant No.2 – Smt. Anand Kumari was illegal and unauthorized in teeth of the agreement dated 14.1.1972; for which it was sought to be declared illegal and without authority. The plaintiff’s entire case was edificed on the agreement dated 14.1.1972, purportedly executed by his adoptive mother Smt. Anand Kumari, at the time of his adoption. The plaintiff contended that the sale in question to defendant No.1 was illegal and liable to be declared as such, because the plaintiff having been adopted by defendant No.2 and her husband Khuman Singh, was the sole owner of the properties, belonging to them. It was thus prayed that the sale deed dated 26.5.1976 for the properties described in para No.4 of the plaint be declared null and void and ineffective against his rights. In response to the suit so filed by the plaintiff, defendant No.1 – Smt. Raj Kumari filed a written statement and while disputing the factum of execution of the agreement dated 14.1.1972, pleaded her ignorance about the same. It was in the alternative contended that as she was not given any intimation or notice of such agreement, it was inoperative qua her. It was also asserted that she was a bonafide purchaser, with whom the defendant No.2 had entered into an agreement of sale way back on 7.2.1968, even prior to the adoption of the plaintiff. The defendant No.1 asserted that as the plaintiff had not issued any (6 of 35) [CFA-154/1992] public notice of the alleged agreement dated 14.1.1972, he cannot take any advantage of the same against the interests of defendant No.1 – a bonafide purchaser. The defendant No.2 – Smt. Anand Kumari – mother of the plaintiff filed a written statement and she also disputed the very execution of the alleged agreement dated 14.1.1972. Smt. Anand Kumari maintained that on 14.1.1972, only the adoption deed was signed by her; and that the agreement dated 14.1.1972 mentioned in the plaint was a forged document. The defendant No.2 asserted that the plot in question was her self-acquired property, having purchased from her husband Shri Khuman Singh vide a registered sale deed, for which she was legally competent to deal with it. She also stated in her written statement that she had entered into an agreement of sale for the contentious property to the defendant No.1 on 7.2.1968, while handing over the possession of the plot to her and it was only in furtherance of such contract of sale, the sale deed dated 25.5.1976 came to be executed. At the time of admission and denial of the documents, the defendant No.2 categorically refused to have signed and executed the agreement (Exhibit-2) dated 14.1.1972, but accepted the execution of the adoption deed dated 14.1.1972 (Ex.1) filed along with the plaint. On the basis of the pleading of the parties, the Trial Court framed following issues :- (7 of 35) [CFA-154/1992] ^^1- D;k izfroknh;k ua- 2 us fnukad 14@1@72 dks oknh dh vksj ls mlds dqnrhZ firk Jh ujsUnzflag ds i{k esa ,d vuqca/k Jh [kqekuflagth ,oa Lo;a dh tk;nkn dks [kqnZcqnZ] jgu] csg ugha djus ckcr fy[kk \ 2- D;k csgukek fnukad 26@5@76 oknh ds eqdkcys esa 'kwU; gksdj csvlj gS \ 3- D;k fooknxzLr laifr izfroknh ua- 2 dh L=h/ku gksus ls mls bls LFkkukUrj.k djus dk vf/kdkj gS \ 4- izfrdkj D;k gS \** On behalf of the plaintiff, PW-1 Subhash Singh; his natural father PW-2 Narendra Singh; PW-3 Chandanmal; PW-4 Sajjan Singh; and PW-5 Pratap Singh appeared in the witness box; whereas DW-1 Narayan Lal; DW-2 Anand Kunwar; DW-3 Jaswant Singh; and DW-4 Hemchandra Trivedi appeared in the witness box to give their evidence. The Trial Court, after appreciation of the evidence both oral and ocular, decided Issue No.1 in favor of the plaintiff and held that the defendant No.2 – Smt. Anand Kumari had executed the agreement dated 14.1.1972 (Ex.2) in favour of plaintiff’s natural father – Narendra Singh and undertook not to sell, alienate or transfer her properties and the properties belonging to her husband. The Trial Court decided Issue No.2 also in favour of the plaintiff and held that the defendant No.2, having executed the agreement dated 14.1.1972 was precluded from selling the (8 of 35) [CFA-154/1992] property, vide subject sale deed dated 25.5.1976 to the defendant No.1. Issue No.3, as to “whether the contentious property was ‘stridhan’ of defendant No.2, for which she was not authorised to transfer the same”; has also been decided in favour of the plaintiff and against the defendant. While relying upon the judgment of Hon’ble Supreme Court, rendered in AIR 1991 p.1869, the Trial Court held that despite the property in question being a ‘stridhan’, the sale effected by the defendant No.2 is void in light of the agreement she had entered into, whereby she had bound herself that she would not sell or alienate the same. Having recorded these findings and decided the issues in favour of the plaintiff, the Trial Court decreed the suit and declared the sale deed dated 26.5.1976 to be null and void. While doing the same, the Trial Court had also directed the defendant No.1 to hand over the vacant possession of the said property within a period of two months vide operative portion of the judgment and decree dated 20.08.1992, which reads thus :- ^^11- mi;qZDr leLr foospu ds QyLo:i oknh dk okn fo:) izfroknh lO;; fMØh fd;s tkus ;ksX; gSA ifj.kkeLo:i oknh dk okn bl izdkj fMØh fd;k tkrk gS fd foØ;i= fnukad 26@5@76 rknknh :i;k 20]000@& tks okn ds isjk ua- 4 esa vafdr laifr ds fo"k; esa izfroknhx.k ua- 2 }kjk izfroknh ua- 1 ds gd esa fu"ikfnr fd;k x;k mls 'kwU; ,oa izHkkoghu ?kksf"kr fd;k tkrk gS rFkk oknh ds okni= ds isjk ua- 4 esa vafdr IyksV ij oknh dks vkf/kiR; lqiqnZ djus ckcr izfroknhx.k ds fo:) lO;; fMØh fd;k tkrk gSA (9 of 35) [CFA-154/1992] fookfnr ijhlj dks [kkyh djus gsrq izfroknhx.k dks nks ekg dk le; fn;k tkrk gSA** Calling in question the judgment and decree dated 20.08.1992 passed by the Court below, Ms. Rekha Borana contended that the learned Trial Court has seriously erred in decreeing the suit filed by the plaintiff – respondent herein. She pointed out that during the pendency of the suit, defendant No.2 – Smt. Anand Kumari had died and the plaintiff had taken no steps for substitution of her legal representatives, as a result whereof, the suit in question stood abated. It was further contended by learned counsel for the appellant that defendant No.1 – Raj Kumari had also died on 30.01.1990 and the plaintiff filed an application seeking substitution of her husband only, without bringing her other existing legal representatives on record. In light of these facts, learned counsel for the appellant argued that the suit in question had since abated and was liable to be dismissed for non-joinder of necessary parties. Ms. Borana vehemently argued that ignoring these fundamental lacunae in the frame of suit, the Trial court had seriously erred in passing the judgment and decree under consideration, particularly when no legal representatives of defendant No.2 - the seller of the property had been brought on record. Learned counsel for the appellant pointed out that the defendant No.2 – the seller of the property, Smt. Anand Kumari (10 of 35) [CFA-154/1992] earlier having refused the execution of the agreement dated 14.1.1972, in her written statement had later admitted her signatures on the document Ex.2, when she appeared in the witness box, which admission has prevailed over the mind of the Court below. Learned counsel for the appellant contended that the testimony of Anand Kumari is worthless and meant only to be discarded out-rightly in the facts peculiar to this case. Ms. Rekha Borana further contended that learned Trial Court has failed to consider a vital aspect of the matter that the property in question was a self acquired property of defendant No.2 – Anand Kumari, who was vested with all rights, including right to sell and alienate. She contended that Anand Kumari had agreed to sell the plot in question way back on 7.2.1968, even before adopting the plaintiff (14.1.1972) and the said property was in continued possession of defendant No.1 – Raj Kumari; and that the sale deed dated 25.5.1976 was only an act in furtherance of the earlier contract of sale. She asserted that the agreement dated 14.1.1972 (Ex.2) was a forged document and that is why, the same was not placed along with the written statement. She submitted that the defendant No.2 had also alleged the agreement dated 14.1.1972 to be a forged document and had taken a specific plea that no such agreement was executed by her. Ms. Borana argued that the defendant No.2 was bound by her stand and any deposition contrary to it cannot be given any credence, in view of the settled law that a party is bound by his/her pleadings and evidence or statement contrary to such pleadings cannot be looked into. (11 of 35) [CFA-154/1992] In last, Ms Borana contended that without prejudice to her earlier arguments, even if it is assumed that the agreement dated 14.1.1972 (Ex.2) was executed, the said document cannot be read in evidence and no rights flowing therefrom can be asserted as the same was an unregistered document. Extending her argument further, she urged that purported agreement seeks to extinguish or relinquish her rights in the immoveable property, in favour of the plaintiff, for which it was compulsorily required to be registered, as per the provisions contained under Section 17 (1) (b) of the Registration Act, 1882. In absence of registration, the same cannot be gone into as mandated by Section 49 of the Registration Act, maintained learned counsel. Learned counsel for the appellant argued that the document Ex.2 on which the entire case of the plaintiff rested, could not be read in evidence, while relying upon the judgment of Hon’ble Supreme Court rendered in case of Dina Ji & Ors., Vs. Daddi & Ors., reported in AIR 1990 SC 1153. Elaborating her contentions in light of the judgment of Apex Court, she argued that the document Ex.2, admittedly an unregistered document, can neither be led in evidence nor the proprietary rights of the appellant can be said to be extinguished or relinquished in favour of the plaintiff, without a registered document. The relevant part of the said judgment is being reproduced hereunder :- “9. This Section enacts that when the parties intend to limit the operation of proviso © to S.12, it is open to them by an agreement and it appears that what she included in the present deed of adoption was an (12 of 35) [CFA-154/1992] agreement to the contrary as contemplated in S.13 of the Hindu Adoptions and Maintenance Act. 10. Section 17 (1) (b) of the Registration Act clearly provides that such a document where any right in immovable property is either assigned or extinguished will required registration. It could not be disputed that this part of the deed which refers to creation of an immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of S.17 (1) (b) and therefore under S.49 of the Registration At, this could not be admitted if it is not a registered document. Unfortunately, the Hon’ble Judge of the High Court did not notice this aspect of the matter and felt that what could not be done because of the proviso (c) to S.12 has been specifically provided in the document itself but this part of the document could not be read in evidence as it could not be admitted. In view of this, the appeal is allowed. The judgments of the High Court and that of the lower appellate Court are set aside and that of the Trial court is restored. In view of these special circumstances, there is no order as to costs.” Learned counsel for the appellant cited another judgment of Hon’ble Supreme Court in case of Chiranjilal Srilal Goenka Vs. Jasjit Singh & Ors., reported in AIR 2001 SC 266, wherein the same principle has been elucidated. Relevant Para 21 of the said judgment is reproduced hereinfra :- “21. As against this, learned senior counsel for the respondent Mr. Sanghi submitted that the aforesaid letter si not to be construed as a deed, but is to be (13 of 35) [CFA-154/1992] taken as an offer letter and by conduct of adopting Radheshyam as son, Chiranjilal could not dipose of the property by will. In our view, this argument is totally devoid of any substance because if reliance is required to be placed on the letter for holding that it restrains Chiranjilal to dispose of the property by will, then it is required to be read as a document which limits the rights of Chiranjilal to deal with his property including the immovable property. Therefore, it would require registration. In any case, the aforesaid question is not required to be considered in detail because we have already arrived at the conclusion that there is no agreement between the parties before adoption indicating any contrary intention as contended.” Navigating the Court through the statements of various witnesses, particularly the statement of Jawan Singh Ranawant, the natural grand-father of the plaintiff, learned counsel for the appellant argued that their statements are most important and looking to his relations with the plaintiff and his status in the Society, they deserve due weightage. Learned counsel for the appellant submitted that Shri Jawan Singh DW-3 had clearly stated that on the fateful day of the plaintiff’s adoption, Chandanmal the ‘Kaamdar’ was not available in the town, whereas the crucial document Ex.2 had been drawn in the handwriting of said Chandanmal, purportedly on the same date. Ms. Borana in light of these facts contended that Shri Jawan Singh had denied not only the presence of Chandanmal but also the factum of execution of the agreement - Ex.2. She asserted (14 of 35) [CFA-154/1992] that these facts and circumstances clearly suggest that the agreement dated 14.1.1972 (Ex.2) was a forged and fabricated document. While resting her arguments, Ms. Rekha Borana informed that Shri Jawan Singh – natural grand-father of plaintiff was a man of repute, having held esteemed position of a Judge of Rajasthan High Court from 29.08.1949 to 10.10.1961. She submitted that testimony of such revered person, who otherwise was closely related to the plaintiff should not be disbelieved or discarded, particularly when he was the person who had drafted the adoption deed and at whose request, the defendant No.1 was persuaded to adopt the plaintiff. Learned counsel for the appellant cited the following judgments in support of her submissions that variance in pleadings and proof is not permissible :- 1. AIR 1974 SC 471 (Nagindas Ramdas Vs. Dalpatram Ichharam) (para 27) 2. 2015 AIR (SCW) 6475 (Ram Niranjan Vs. Sheo Prakash) (para 23 & 24) 3. 2011 AIR (SCW) 1061 (Kalyan Singh Chouhan Vs. C.P. Joshi) (paras 17, 18, 22 and 24) 4. 2003 AIR (SCW) 6005 (Sushil Kumar Vs. Rakesh Kumar) 5. AIR 1974 Raj. 73; Kusum Chand Vs. Kanhaiyalal) (para 6 & 9) (15 of 35) [CFA-154/1992] Learned counsel cited judgment of Hon’ble Supreme Court, reported in AIR 2004 SC 3974 (Ugre Gowda Vs. Nagegowda) in a bid to contend that mere adoption does not deprive a widow of her right to dispose of her self acquired property. Mr. Arpit Bhoot, learned counsel for the respondents supporting the judgment and decree under consideration submitted that the appellant – defendant has taken a refuge of an agreement to sell dated 7.2.1968, which agreement firstly has not been proved and even if the same is proved, it does not help the case of the appellant. The reason being, that by virtue of the execution of the document dated 14.1.1972 (Ex.2), the appellant’s power of transferring or alienating any of her properties was captivated or ceased, notwithstanding the prior agreement. Mr. Bhoot submitted that the appellant has not been able to cite any judgment or provision of law, which requires a public notice of the agreement Ex.2. He argued that the agreement Ex.2 has its own effect and the appellant-defendant, pleading or proving ignorance of such document, cannot claim immunity from the rigours of law. According to him, the appellant cannot claim herself to be a bonafide purchaser to claim immunity from the force of the binding agreement and avoid the decree under consideration. Responding to the argument of the appellant that as stated by Anand Kumari in her written statement, the consent of Subhash Singh had been obtained; Mr. Bhoot argued that such consent is inconsequential, particularly because Subhash Singh – the plaintiff was minor at the time of execution of the sale deed (16 of 35) [CFA-154/1992] and secondly and more importantly, as the agreement (Ex.2) stipulated the consent of his father Narendra Singh. Even if it is presumed that the respondent – plaintiff had given consent for alienation of the ‘Badi’ in question, being ignorant of his rights, the contentious sale was void and contrary to the agreement dated 14.1.1972, assertively argued Mr. Bhoot. He added that all the witnesses, may be the plaintiff’s witnesses or the defendants’ witnesses, admitted the signatures of Anand Kumari on the agreement dated 14.01.1972 (Ex.2), which proves the execution of the document Ex.2. In such situation and in face of the document Ex.2, any sale made by the defendant No.2 was illegal and contrary to the agreement or the promise she had made to the plaintiff’s father. Learned counsel for the respondent cited judgment of Hon’ble Supreme Court in case of B.T. Govindappa Vs. B. Narasimhaiah, reported in AIR 1991 SC 1969. Claiming parity from the facts and law enunciated therein, he contended that in present case also, the defendant No.2 Anand Kumari, having agreed to refrain from selling the property, could not sell the same and the sale deed executed in favour of the defendant No.1 (appellant) was clearly in contravention of the restriction so imposed by Smt. Anand Kumari on herself, vide Ex.2. Relevant para No.6 of the aforesaid judgment is being reproduced hereinfra :- “6. The High Court did not find favour with the contentions raised on behalf of the appellant. The High Court held that the sale deed in favour of the appellant was clearly in contravention of the (17 of 35) [CFA-154/1992] restriction imposed on Smt. Thimmamma in exhibit D- 1 and as such the sale deed Exhibit P-1 was invalid in law and conferred no title in the suit property on the appellant. In our opinion the High Court was right in taking the aforesaid view on account of the contents of exhibit D-1. There can be no manner of doubt that a Hindu woman is the full owner and entitled to deal with her stridhan property as she likes. She can also put any restriction or curtailment of her rights by her own consent and free will in her stridhan property. In the present case B. Narasamiah came by adoption in the family of Chikkahanumaiah and as a consequence of which he lost his right in the property of his natural father. At the time of adopting B. Narasamaiah not only Chikkahanumaiah but Smt. Thimmamma also agreed to grant the right of co-ownership in all the properties