CFA 110/1994 (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil First Appeal No.110/1994 Deen Dayal Vs. Sanjeev Kumar Date Of Judgment :: 29.4.2009 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. M.M. Ranjan with Mr. Rajat Ranjan, for appellant. Mr. Manoj Bhardwaj with Mr. Ashvin Garg, for respondent. ........ REPORTABLE By the Court :- This is a defendant's first appeal under section 96 of the Code of Civil Procedure directed against the judgment and decree dated 7/7/1994 passed by Additional District Judge No.1, Ajmer in Civil Suit No.252/1993 by which the CFA 110/1994 (2) suit of the plaintiff has been decreed. 2. The plaintiff Sanjeev Kumar had filed a suit for possession, declaration, injunction, recovery of mesne profits and other items with the averments that property bearing AMC No.28/805 situated at Adarsh Nagar, Ajmer was owned and possessed by Shri Dayaram who died issue-less in the year 1957 and after the death of Dayaram his wife Jai Devi inherited his property who also expired issue-less in the month of May, 1970, therefore Chameli Devi, sister-in- law (Bhabhi) inherited the said property in accordance to Hindu Succession Act being the nearest surviving member after the death of Smt. Jai Devi. It was further the case of the plaintiff that CFA 110/1994 (3) Smt. Chameli Devi took in adoption to the plaintiff Sanjeev Kumar on 2/5/1974 and a registered adoption deed was also got executed by her; that Smt. Chameli Devi died on 23/4/1975, thereafter Sanjeev Kumar (plaintiff) became the sole owner of the property left by Chameli Devi. It was also stated that Deen Dayal was the step brother of late Smt. Jai Devi and after her death he continued collecting rent on behalf of Chameli Devi and also used to reside with her but the defendant Deen Dayal was in no way heir of Jai Devi or Chameli Devi. It was further averred that Chameli Devi served a notice on 20/5/1974 to the defendant Deen Dayal to stop to collect the rent, thereafter Deen Dayal with melafide intentions lodged a CFA 110/1994 (4) First Information Report against Jai Prakash and Chameli Devi and in that criminal case Jai Prakash and Chameli Devi were arrested but after release on bail Chameli Devi was kept in wrongful confinement by the defendant Deen Dayal and she was not permitted to meet even to her adopted son. It has further been averred that after the death of Chameli Devi, the plaintiff being adopted son has become the sole owner of her property, therefore he is entitled for possession of immovable property as well as cash money and ornaments. 3. The defendant Deen Dayal in his written statement denied the factum of plaintiff's adoption and averred that plaintiff was never adopted by Smt. CFA 110/1994 (5) Chameli Devi and forged adoption deed was prepared by Jai Prakash, father of the plaintiff. It was further the case of the defendant that he was adopted son of late Shri Dayaram, that Smt. Chameli Devi was not having any relation with the property of late Shri Dayaram and the defendant Deen Dayal is the sole owner of the disputed property after the death of Dayaram and his wife Jai Devi and this fact has been admitted also by Chameli Devi in writing and she also relinquished her right and title, if any, in the said property. It was also averred that Smt. Chameli Devi had adopted Snehlata and therefore, Snehlalata is also a necessary party to the present suit. 4. The trial court on the basis CFA 110/1994 (6) of the pleadings, framed following issues:- ''1.क् या ौीमती चमेली देवी ने वाद के चरण सं.3 में उल् लेिखत सम् पित व अन् य सम् पित जय देवी से उत् तरािधकार में ूाप् त की? 2.क् या ूितवादी दयाराम का दत् तक पुऽ है? 3.क् या चमेली देवी ने ूितवादी को भवन की देखभाल करने व िकराया वसूल करने के िलये अिधकृत िकया जैसा िक वाद-पऽ के चरण सं.4 में कथन िकया गया है? 4.क् या चमेली देवी ने वादी को गोद िलया जैसा िक वाद-पऽ के चरण सं.7 में कथन िकया गया है? 5.क् या ौीमती चमेली देवी ने जय ूकाश को वाद-पऽ के चरण सं.9 के अनुसार एक सूचना-पऽ तामील िकया िजसकी अनुपालना में वादी, जयूकाश की िकरायेदारी के पǐरसर CFA 110/1994 (7) के एक भाग के कब् जे में है? 6.क् या चमेली देवी ने ूितवादी पर नोिटस िदनांक 20.5.74 तामील िकया। यिद हां, तो उसका वाद पर क् या ूभाव है? 7.क् या वाद-पऽ के चरण संख् या 12 में विणर्त तथ् यों के आधार पर ूितवादी भवन संख् या 28/805 का ूबन् ध व देखभाल करने का अिधकारी नहीं है एवं वादी इस िववादाः पत सम् पित का आिधपत् य ूाप् त करने का अिधकारी है? 8.क् या वाद-पऽ के चरण संख् या 13 से 15 में विणर्त कारणों के आधार पर वादी 14-00 {00 व सोने के आभूषण कीमती 3000/- ूाप् त करने का अिधकारी है? 9. क् या वाद न् यून मूल् यांिकत है? 10. क् या ूितवादी िवशेष व् यय पाने का अिधकारी है? 11. वादी क् या अनुतोष ूाप् त करने का CFA 110/1994 (8) अिधकारी है?" 5. The plaintiff Sanjeev Kumar apart from himself as PW2 examined Jai Prakash as PW1 and got exhibited three documents Exhibit-1 to Exhibit-3. The defendant Deen Dayal apart from himself produced A.R. Kulkarni, Vidhyanath and Mukandram in his evidence and got exhibited as many as 29 documents. 6. The learned trial court decreed the plaintiff's suit for declaration that the plaintiff is adopted son of Smt. Chameli Devi and also for possession of the house but dismissed the suit in regard to the claim of cash money and jewellery. Feeling aggrieved against the judgment and decree dated 7/7/1994, the defendant-appellant has preferred CFA 110/1994 (9) this appeal. 7. I have heard the learned counsel for the parties and perused the relevant material available on the record. 8. Learned counsel for the appellant firstly submitted that the suit filed by the respondent-plaintiff is not maintainable because earlier suit filed by him and his father Jai Prakash on the same cause of action was dismissed as withdrawn and no permission to file fresh suit was sought from the concerned court and this fact has been admitted by Jai Prakash (PW1) in his cross-examination. It was then submitted that though this plea has not been raised by the appellant-defendant in his written CFA 110/1994 (10) statement but being a pure question of law the same may be raised at any stage. Reliance has been placed upon the judgment delivered in the case of M.K. Ranganathan and another Vs. Govt. of Madras and others, reported in AIR 1955 SC 604, wherein it was held that a pure question of law may be raised even at the appellate stage. 9. Per contra, learned counsel for the respondent submitted that plea of bar being a subsequent suit on the same cause of action has neither been pleaded by the defendant in his written statement nor he incorporated this objection as a ground of appeal, therefore, it being a mixed question of fact and law cannot be permitted to be raised for the first time CFA 110/1994 (11) at the appellate stage. Reliance has been placed upon the judgment in Rikabdas A. Oswal Vs. Deepak Jewellers and others, reported in (1999) 6 Supreme Court Cases 40. 10. I have given my thoughtful consideration on the rival submissions made at the bar. It is not in dispute that appellant-defendant has neither taken this plea in his written statement that plaintiff-respondent had earlier also filed a suit on the same cause of action which was dismissed as withdrawn without leave of the Court nor such objection was raised by taking ground in his memo of appeal and for the first time during the course of arguments this plea has been raised by the counsel of the CFA 110/1994 (12) appellant-defendant referring the statement of Jai Prakash (PW1). In my considered view, this being a mixed question of fact and law, such plea cannot be permitted to be raised first time at the appellate stage, since in this situation the plaintiff shall be remedyless in rebutting the fact so asserted. Hon'ble the Apex Court in Rikabdas A. Oswal's case (supra) had occasioned to consider similar situation and held that plea of bar of subsequent suit must be expressly made in the written statement. It was further observed that where the defendant had neither taken the plea of bar of subsequent suit in the written statement nor in the grounds of appeal nor in the CFA 110/1994 (13) ground of review, the District Judge could not have entertained the said plea. As has been discussed here-in-before and also keeping in view the ratio laid down by Hon'ble the Apex Court in Rikabdas A. Oswal's case (supra), I do not find any force in this contention of the appellant raised at this stage in regard to the bar of subsequent suit. 11. Learned counsel for the appellant next contended that learned Additional District Judge has not considered the oral as well as documentary evidence in a proper manner and only raised the presumption of Section 16 of the Hindu Adoptions and Maintenance Act,1956 in regard to the valid adoption on the basis of registered CFA 110/1994 (14) adoption deed Ex.1 and has not considered the other evidence and circumstances at all. While placing reliance upon the judgment in Jai Singh Vs. Shakuntala, reported in AIR 2002 Supreme Court 1428, it was submitted that presumption is rebuttable one and it has been amply established that no ceremony of giving and taking had taken place which is a mandatory requirement of a valid adoption. To support this contention reliance has also been placed upon the judgment in Kartar Singh (Minor) through Guardian Bachan Singh Vs. Surjan Singh (dead) and others, reported in AIR 1974 Supreme Court 2101. It was then submitted that performance of ceremony of “giving and taking” neither noted in the CFA 110/1994 (15) deed nor described in the plaint and even according to the adoption deed Ex.1 Sanjeev Kumar was given in adoption by only his natural father Jai Prakash and no consent of her mother was obtained nor averred in the adoption deed, therefore, from the adoption deed Ex.1 itself, it is clear that this adoption is not lawful. It was further submitted that plaintiff continuously describing himself as a son of his natural father in the official record and no witness of such ceremony including the mother of the plaintiff was produced in the evidence. It was also submitted that adoption deed has been prepared by Shri Arjun Das, Advocate which was registered on 2/5/1974 and said deed is said to have been signed by Dal CFA 110/1994 (16) Chand Rathore (a client of Advocate Sh. Arjun Das) and Sitaram Munshi (Munshi of Arjun Das, Advocate) but for proving the adoption deed neither Arjun Das, Advocate nor any attesting witness was produced in the witness box. It was then submitted that Smt. Chameli Devi refuted such adoption soon after she came in knowledge about this fact and in this regard notice Ex.20 dated 13/8/1974 has been proved by Advocate Shri Mukundram Garg (DW4). It was also submitted that Smt. Chameli Devi also submitted affidavit on 3/8/1974 Ex.17 & 18 in the court in which she refuted the factum of this adoption. It was further submitted that plaintiff Sanjeev Kumar is the only son of his natural father Jai Prakash, the caste CFA 110/1994 (17) and Gautra of plaintiff Sanjeev Kumar and Smt. Chameli Devi are different and they were not, related and even known to each other prior to induction of Jai Prakash (father of the plaintiff) as a tenant in the disputed house, therefore, there was no occasion and reason for Smt. Chameli Devi to adopt plaintiff Sanjeev Kumar, specially in the circumstances where ordinarily an only son is neither given nor taken in adoption in Hindus. Reliance has been placed upon the judgment in A. Raghavamma and another Vs. A. Chenchamma and another, reported in AIR 1964 Supreme Court 136. 12. Per contra, learned counsel for the respondent contended that learned Additional District Judge having CFA 110/1994 (18) considered the entire evidence arrived at correct conclusion about the fact of adoption in question and there is no reason to set aside the said finding. While placing reliance upon the judgment in Dheer Singh Vs. Amar Singh and Ors., reported in 1998(2) W.L.C. (Raj.) page 704, it was contended that strong presumption of a valid adoption is attached with the registered adoption deed, which is in no way rebutted by the appellant-defendant but in the instant case plaintiff however succeeded to prove his adoption and its ceremonies including “giving and taking ceremony” by the oral testimony of PW1 Jai Prakash and PW2 plaintiff Sanjeev Kumar and further proved that natural mother of Sanjeev CFA 110/1994 (19) Kumar also gave her consent for this adoption and the statements of PW1 Jai Prakash and PW2 Sanjeev Kumar further find corroboration from the registered adoption deed Ex.1. According to the learned counsel for the respondent, minor contradictions in the statements of the witnesses after a lapse of many years of such ceremony are obvious, therefore, on the basis of minor contradictions, evidence of such witnesses cannot be discarded. Reliance has been placed upon the judgment in Nandkishore and another Vs. Brijbehari and another, reported in AIR 1965 Rajasthan 65, wherein it was held that though onus of proving adoption is on the party who alleges it, but after a lapse of a long time, it is natural CFA 110/1994 (20) that the evidence of adoption may disappear. 13. It was then submitted that though plaintiff Sanjeev Kumar and her adoptive mother were not of the same caste but they were known to each other and were residing in the same house and having a bond of love and affection, therefore, plaintiff Sanjeev Kumar was taken in adoption by Smt. Chameli. 14. I have considered the above submissions made at the bar in the light of the evidence and the material available on the record. 15. Plaintiff Sanjeev Kumar claims his right over the property in dispute on the basis of adoption and approached to the Court with a specific plea that he CFA 110/1994 (21) was taken in adoption by Smt. Chameli Devi on 2/5/1974 and an adoption deed was also executed and registered by her on the same day, therefore, he being an adopted son of Smt. Chameli Devi became the sole owner of the disputed house originally owned by Shri Dayaram which in turn was inherited by Smt. Chameli Devi, wife of Gopiram, who was the sister-in- law (Bhabhi) of deceased Dayaram, therefore the core question between the parties in this appeal is that of adoption of plaintiff Sanjeev Kumar. 16. The plaintiff apart from adoption deed which has been marked as Exhibit-1, has also relied upon his oral testimony as well as the testimony of his natural father Jai Prakash who was CFA 110/1994 (22) examined as PW1 to prove this adoption. 17. Jai Prakash (PW1) in his deposition stated that Chameli Devi adopted his son Sanjeev Kumar on 2/5/1974 where in the morning rituals were performed and his son was given in lap of adoptive mother Chameli Devi by Pandit and thereafter sweet (prashad) was distributed. He further stated that his wife also consented for this adoption and at that time along with his wife Vimla Devi and children, the persons of community were also present. He also stated that adoption deed was also executed and registered by Smt. Chameli Devi which was drafted by scrub Advocate Shri Arjun das whereas Dal Chand Rathore and Sita Ram signed the deed as a CFA 110/1994 (23) witness. He further stated that two years prior to this adoption he came in the disputed house as a tenant of Chameli Devi and before that he was not acquainted with her. He further admitted in his cross-examination that he and Chameli Devi were of different caste and Gautra. He also denied having any knowledge about the relatives of Chameli Devi on her maternal side. He further admitted that Sanjeev Kumar is his only son to whom he had given in adoption to Chameli Devi. He further admitted in his cross-examination that at the time of adoption no relative of Chameli Devi and Jai Devi was present. He further stated that at the time of adoption ceremony, Jagdish Prasad Bansal, Shri P.N. Mehra CFA 110/1994 (24) and Shri Narayan were present who are still alive. In the cross-examination, PW1 Jai Prakash further stated that Advocate Arjun Das who drafted the adoption deed had been his counsel in so many cases against the defendant. In his deposition at one place he stated that he along with Chameli Devi, went to Arjun Das for drafting of adoption deed whereas in his next breath he stated that draft was prepared in his house by Advocate Arjun Das. In regard to attesting witnesses of the adoption deed PW1 Jai Prakash stated that Sitaram is a Munshi of Arjun Das and another witness Dal Chand is also alive. PW1 Jai Prakash further admitted in his cross-examination that he was a tenant of defendant Deen CFA 110/1994 (25) Dayal to whom he used to pay the rent. He also stated that Chameli Devi died at Delhi but he was not present at the time of her funeral, therefore, he was not aware as to who performed the rituals at that time. 18. Another witness plaintiff Sanjeev Kumar (PW2) himself stated that at the time of his adoption he was only 12 years of age, he was taken in adoption by Smt. Chameli Devi and after Pooja and rituals he was given in the lap of Chameli Devi by his natural father Jai Prakash. He also stated that he was not in the relations of Smt. Chameli Devi nor he knows about her Gautra. He further stated that at the time of his adoption, his father, mother and two sisters along CFA 110/1994 (26) with other familiar persons were present, out of them one Dal Chand, O.P. Mehra and Jagdish Prasad Bansal are still alive. He further showed his ignorance whether at the time of his adoption any relative of Chameli Devi was present or not ? 19. This is the entire oral evidence which has been produced by the plaintiff in support of his plaint and from the above oral testimony, it is difficult to hold that Sanjeev Kumar was taken in adoption by Smt. Chameli Devi by performing ceremony of “giving and taking” for the following reasons which have been emerged from the plaintiff's evidence :- (a) That the adoption is said to have taken place in the morning on 2/5/1974 at CFA 110/1994 (27) the residence of Smt. Chameli Devi but none of her relative was called and present at this very important occasion; (b) That the plaintiff Sanjeev Kumar and his father Jai Prakash were not acquainted with Chameli Devi prior to their induction as a tenant in the disputed house in the year 1972; (c) That the plaintiff Sanjeev Kumar and his father Jai Prakash were not aware about the Guatra and caste of Chameli Devi to whom Jai Prakash opted to give his only son Sanjeev Kumar in adoption, even after this adoption; (d) That the natural mother of the plaintiff Sanjeev Kumar, though alive, CFA 110/1994 (28) has not been produced in the witness box for the reasons best known to the plaintiff Sanjeev Kumar; (e) That it is not disputed that Sanjeev Kumar is the only son of his natural father Jai Prakash even then he opted to give his only son in adoption. It is also significant to note here that in Hindus one of the important purpose of adoption is to ensure spiritual services for a man after his death by the offering of oblations and rice libations of water to the manes periodically. Therefore, ordinarily an only son is neither given nor taken in adoption. Mitakshara has dealt with this point and lays down as follows :- CFA 110/1994 (29) आपद महणाद् अनापिद न देय:। दातुरयं ूित षेध:। तथा, एक: पुऽो न देय:। नत् वेवैकं पुऽं दघात् ूित गृहीयात्वेित विशं ट ः मरणात् तथा, अनेक पुऽसदभावेs िप ज् यें टो न देय:। Similarly Saunaka ordains :- नेक पुऽेण कतर्व् यं पुऽदानं कदाचन। बह पुऽेण कतर्व् यं पुऽदानं ूयत् नत ु :।। “By no man having an only son (ek-putra) is the gift of a son to be ever made. By a man having several sons (Bahu-putrena) such gift, is to be made on account of difficulty. CFA 110/1994 (30) The Hon'ble Apex Court in A. Raghavamma and another's case (supra) has observed that though it is well known that ordinarily an only son is neither given nor taken in adoption unless there are special circumstances for such adoption of only son. 20. In the instant case, as has been discussed here-in-before, Jai Prakash gave his only son in adoption whereas nothing has been shown as to what special reasons or circumstances persuaded to him to give his only son Sanjeev Kumar in adoption to the old widow lady Smt. Chameli Devi. (f) That the witnesses of adoption ceremony as stated by Jai Prakash (PW1) CFA 110/1994 (31) and Sanjeev Kumar (PW2) have not been produced in the witness box to prove the ceremony of “given and taken”, though it has been admitted that all these witnesses are alive. The neighbourers and important community persons were also not invited at this very important and auspicious occasion reasons best known to the plaintiff Sanjeev Kumar and natural father Jai Prakash; (g) That the adoption deed is said to have been drafted by Shri Arjun Das, Advocate, who is admittedly the counsel of Jai Prakash in so many cases filed by him against the defendant Deen Dayal and one attesting witness Sitaram is the Munshi of Scrub Advocate Shri Arjun Das; CFA 110/1994 (32) (h) That neither Arjun Das, Advocate nor two attesting witnesses Sarva Shri Sitaram and Dal Chand were examined for the reasons best known to the plaintiff; (i) That there are major and noticeable contradiction in the statements of plaintiff Sanjeev Kumar (PW2) and his father Jai Prakash (PW1) in regard to the ceremony of “giving and taking”. PW1 Jai Prakash stated that his son was given in lap of adoptive mother by Pandit whereas Sanjeev Kumar says that he was given in the lap of Chameli Devi by his natural father Jai Prakash. 21. So far the oral testimony of defendant Deen Dayal is concerned, he categorically denied about adoption of CFA 110/1994 (33) Sanjeev Kumar and stated that Sanjeev Kumar was never taken in adoption on 2/5/1974 by Smt. Chameli Devi. He further stated that after the death of Jai Devi her plot no.44, Adarsh Nagar was transferred in his name and his name has been recorded as owner of the house in the record of Nagar Parishad. He also stated that Jai Prakash was his tenant who executed rent note in his favour and used to pay him the rent. He further stated that a suit for eviction was filed against Jai Prakash which was decreed. DW1 Deen Dayal further stated that Chameli Devi adopted his daughter Snehlata at Delhi in the presence of relatives and community persons and “given and taken” ceremony was also CFA 110/1994 (34) performed and registered adoption deed was also executed by Chameli Devi in favour of Snehlata. He further stated that Chameli Devi died at Delhi and at that time he and his relatives performed necessary rituals. Defendant's another important witness is Mukundram (DW4), Advocate who proved the notice Ex.A20 dated 13/8/1974 which was served by him upon the plaintiff's