Case: Shuganchand Vs. Prakash Chand &amp; Others

allowed his appeal and dismissed the appellants suit. The High Court has held that since Kanakmals wife was alive at his death it was she alone who was competent to adopt with a view to obtain the estate of Kanakmal, and that the adoption made by the widowed daughter-in-law would not have the effect of divesting the estate which had vested in Kanakmals widow. It is on this narrow ground that the respondent has succeeded in the High Court. The High Courts decision was pronounced on February 1, 1954. It is this decision which is challenged before us by the appellant who has brought the appeal to this Court with special leave.6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her. Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.7. Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC 118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. It is true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs. We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her.Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. Itis true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs.We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life.