Case: Umakant Vishnu Junnarkar Vs. Pramilabai &amp; Another

personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties. 13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/- or 150/- per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price. 14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/- in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive. 15. The second contention of the plaintiff that the gift deed dated dated 30-3-1943 was executed by Baburao was a sham and nominal transaction does not require, in our opinion, any serious consideration. The plea of the plaintiff-appellant was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent. The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performance suit. We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted.

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

Explanation:
0[ds]9. We felt that in the particular circumstances of this case it was not necessary to consider the larger question raised by Mr. Bal that in no circumstances can a High Court dismiss a first appeal summarily without giving reasons10. It is enough to state that, as pointed out by this court in Mahadev Tukaram Vetale v. Smt. Sugandha, AIR 1972 SC 1932 , an appeal raising triable issues should not be summarily dismissed. Though a fairly large volume of evidence, oral and documentary, had been led by the parties, it was mentioned to us, particularly by the learned counsel for the appellant, that he proposes to rely only on very few items of evidence on record. We also felt that both sides were anxious that a very early end should be given to this litigation and that the matter should be disposed of by this Court itself on merits12. On the question regarding the character of the suit properties in the hands of Baburao, it must be stated at the outset that the plaintiff himself, who was very young on the date of his adoption, had no personal knowledge. It is only necessary to refer to the evidence adduced by the plaintiff himself which, in our opinion, will show that Baburao did not receive any assets from his father which would enable him to acquire the suit properties13. There is evidence on record of P.W. 6, the paternal uncle of the appellant. While the appellant claimed that his adoptive father, Baburao, was getting income from a family temple, P.W. 6 has stated that Baburao was in service and was getting salary. He further deposed that Baburao went to Thana in or about 1938 and after that he was not getting any share from the income of the family temple. Even prior to 1939, it is evidence of P.W. 6 that there were several shares in the family who were entitled to share the income from the temple. His evidence clearly shows that the income from the temple was only about 1 to 4 seers of rice and the cash income was about Rs. 100/or 150/per year. Even accepting in full the evidence of this witness, it is clear that the finding of the Trial Court that Baburao did not get any assets from his father and that he did not get income from the temple which could have been utilised for the purchase of the plot and building the house is correct. It is significant to note that P.W. 6 admits that the period from 1925 to 1940 was one of a low cost of living and that food stuffs and other articles were available at a very cheap price14. We may state that the appellants plea was that Baburao obtained in or about 1922 in the family partition a sum of Rs. 3000/in the form of ornaments and cash and this according to the plaintiff provided a nucleus for Baburao later on for purchasing the plot and building the house. There was absolutely no evidence which is worth considering led by the plaintiff to sustain this plea. P.W. 6, who is none else than the brother of Baburao, does not at all speak of any sharer having obtained this amount in the family partition. We are of the opinion that the finding that the suit properties were acquired by Baburao from and out of his own earning as an overseer in the Public Works Department is correct. If so, it follows that the claim of the plaintiff that the suit properties were the ancestral properties in the hands of his adoptive father Baburao in which he obtained a right as a consequence of adoption on February 25, 1941, had to be rejected. Inasmuch as the existence of a family nucleus in the hands of Baburao is not accepted by us, the question of Baburao having blended his own income with any ancestral assets in his hands does not survive15. The second contention of the plaintiff that the gift deed dated dated3 was executed by Baburao was a sham and nominal transactiondoes not require, in our opinion, any serious consideration. The plea of thet was that he having been admitted in the family in 1941, Baburao would not have had any intention of conferring full title in the first respondent so as to deprive the appellant of his rights in the property. According to the appellant the gift deed was executed only for the purpose of safeguarding the property and to see that the appellant does not behave improperly towards his adoptive mother, the donee. While we do sympathise with this claim made by the appellant, it is, in our opinion, devoid of any merits. One of the circumstances that has been relied upon in support of this contention was that even after the execution of the gift deed, the property stood in the names of both Baburao and the first respondent and that mutation was effected in the name of the first respondent only after 1946 when Baburao died. We are not inclined to accept this contention of Mr. Bal. The plaintiff has no doubt attempted to find support in this regard from the evidence given by the first respondent, the adoptive mother of the appellant. In our opinion the evidence of the mother has to be rejected as she is only trying to help the appellant after a decree had been obtained against her in the specific performance suit by the second respondent.The criticism that has been levelled by Mr. Bal against the judgment of the Trial Court is that it has acted illegally in relying upon the evidence given by the mother in the specific performancesuit.We do agree that the evidence given by the first respondent in the specific performance suit is not by itself substantial evidence in the present litigation. The Trial Court has only referred to her evidence in the previous suit to show that she was giving conflicting versions to suit the occasion. But it is pertinent to note that the adoptive mother giving evidence as P.W. 5 in the present litigation has stated that she has executed a registered will on October 20, 1949, in respect of the suit properties. She has further deposed that in the said will she had claimed that the suit properties were acquired by her husband (the adoptive father of the plaintiff) from and out of his salary, supervision work and consultation work. But her evidence before the Court was totally different, namely, that her husband had ancestral assets in his hands which were utilised for the purchase of the plot and construction of house. She has again significantly admitted that in 1949 when she executed her will, she was very friendly with plaintiff. She has also stated that she has a right to dispose of the property, which she had acquired, under the will as she pleases. These answers make it very clear that the plea of the appellant that the gift deed was a sham and nominal transaction cannot be accepted.