Skip to content


Babu Lal Vs. Moti Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Civil Appeal No. 939 of 1979
Judge
Reported inAIR1984All378
ActsHindu Law
AppellantBabu Lal
RespondentMoti Lal and ors.
Appellant AdvocateS.K. Vidyarthi, ;R.K. Khare and ;Govind Saran Nigam, Advs.
Respondent AdvocateH.N. Tilhari, ;R.S. Tripathi and ;Rakesh Kumar Srivastava (2), Advs.
DispositionAppeal dismissed
Excerpt:
.....evidence on record it is not established that the plaintiff moti lal became perfect sanyasi as no religious ceremonies with regard to that affair were performed while adopting sanyas by moti lal. arya priti nidhi sabha air1930all643 it has been held that 'the mere fact that a person declares that he has become a sanyasi or that he has described as such or wears clothes ordinarily worn by the sanyasi would not be sufficient to make him a perfect sanyasi. ' 13. the division bench in the aforesaid case has very clearly held that the person who adopts sanyas must perform the necessary ceremonies without which the renunciation will not be complete. ' 15. it is thus well settled that in the absence of necessary ceremonies having been performed by a person entering in the life of sanyasi,..........in suit is ancestral and plaintiffs have two-third share in the house in dispute. it was further held that moti lal plaintiff no. 1 is the real brother of plaintiff no. 2 and defendant babu lal and that he has got one-third share in the property in suit. it was further held that the suit was not filed by an imposter on behalf of moti lal. with these findings the suit was decreed.4. aggrieved by this order babu lal filed an appeal. this appeal was heard and dismissed by the lower appellate court vide its judgment and decree dated 12th sept. 1979. before the appellate court a question was raised on behalf of the defendant-appellant that moti lal on his own admission should be taken to have become sanyasi and his civil death should be presumed and in this view of the matter.....
Judgment:

K.N. Misra, J.

1. This second appeal arises out of a suit for partition filed by plaintiffs-respondents Moti Lal and Nand Lal in respect of property situated in village Munshiganj, hamlet of Sakatpur, Pargana Asiwan-Rasoolabad Tahsil Hasanganj, District Unnao.

2. Plaintiffs and defendant Babu Lal are real brothers. Plaintiffs claimed two-third share in the house in suit and claimed its partition. Suit was contested by Babu Lal, who asserted that plaintiff Moti Lal has not been heard of for more than thirty years and as such his civil death will be presumed and the defendant, thus, claimed one-half share in the house in suit. It was further asserted that Moti Lal, who has joined in the suit as plaintiff is not his real brother and he is an imposter. Plaintiff Moti Lal examined himself as PW 1, his wife Pikbena was also examined as PW 5 and plaintiff Nand Lal was also examined as PW 2. Some other witnesses were also examined. Defendant examined himself and also examined some other witnesses, the reference of which is not necessary.

3. Trial Court, after taking evidence of the parties, held that the house in suit is ancestral and plaintiffs have two-third share in the house in dispute. It was further held that Moti Lal plaintiff No. 1 is the real brother of plaintiff No. 2 and defendant Babu Lal and that he has got one-third share in the property in suit. It was further held that the suit was not filed by an imposter on behalf of Moti Lal. With these findings the suit was decreed.

4. Aggrieved by this order Babu Lal filed an appeal. This appeal was heard and dismissed by the lower appellate court vide its judgment and decree dated 12th Sept. 1979. Before the Appellate Court a question was raised on behalf of the defendant-appellant that Moti Lal on his own admission should be taken to have become sanyasi and his civil death should be presumed and in this view of the matter defendant-appellant 'would be entitled to one-half share in the house in suit. The plea was repelled by the lower appellate court holding that no such plea was taken by the defendant in the written statement and from the evidence on record it is not established that Moti Lal became perfect sanyasi and so his civil death has not been established.

5. Aggrieved by the judgment and decree passed by the trial court as well as the lower appellate court, the defendant-appellant has come up in second appeal.

6. Learned counsel for the appellant contended that the lower appellate court erred in ignoring the admission of Moti Lal who categorically admitted to have become sanyasi and so legally he ceased to hold any interest in the property because on becoming sanyasi his civil death will be presumed in law. The learned counsel in support of his argument referred to the admission of Moti Lal, wherein he has stated that thirty years ago he became sanyasi. Learned counsel contended that if an admission emerges from the cross-examination itself on a relevant fact, the same cannot be brushed aside merely on the ground that no foundation has been laid in the written-statement for such a plea. He urged that even in the absence of such a plea in written-statement on the said question, the admission could be taken to be conclusive proof of the fact and on its basis it has to be held that Moti Lat became sanyasi thirty years ago and as such he ceased to hold any interest in the property. I am unable to agree with this contention.

7. It is no doubt correct to say that the admission of a party withdrawn and rebutted and explained away, or shown to be factually incorrect or erroneous in law, would be binding on him and it can be read and relied upon as substantive evidence to establish a relevant fact. But it is equally well settled that no amount of evidence, which may either be afforded by an admission of a party or it may be any other evidence, oral or documentary, can be looked into upon a plea, which was never put forward (See , Siddik Mahomed Shah v. Mt. Saran).

8. In Trojan & Co. v. RM. N.N. Nagappa Chettiar : [1953]4SCR789 Hon'ble Supreme Court observed that 'The decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the court would not be entitled to grant a relief not asked for.'

9. In Mangal Sen v. Kanchhid Mal : [1982]1SCR331 the Hon'ble Supreme Court while considering the question whether a plea of waiver can be taken into consideration in the absence of specific pleading in that behalf observed that : 'As rightly observed by the District Court, the defendant did not put forward any plea of waiver in the written statement filed by him before the trial Court and in the absence of any specific pleading in that behalf, the trial court wax not really called upon to go into the question of waiver.'

10. In this view of the matter I do not find any error has been committed by the lower appellate court in observing that since this case was not pleaded by the defendant in the written-statement the same cannot be looked into. Apart from it, the lower appellate court has observed that on the evidence on record it is not established that the plaintiff Moti Lal became perfect sanyasi as no religious ceremonies with regard to that affair were performed while adopting sanyas by Moti Lal.

11. Learned counsel for the appellant contended that since this fact was admitted by Moti Lal that he became sanyasi thirty years ago and as such it was not necessary for the defendant to further establish that religious ceremonies were performed by Moti Lal while adopting sanyas. I am unable to agree with this contention.

12. In Baldeo Prasad v. Arya Priti Nidhi Sabha : AIR1930All643 it has been held that 'The mere fact that a person declares that he has become a sanyasi or that he has described as such or wears clothes ordinarily worn by the sanyasi would not be sufficient to make him a perfect sanyasi. It is essential that he must enter into the fourth stage of his life in accordance with the necessary requirements. He must not only retire from all worldly interests and become dead to the world, but to attain this he must perform the necessary ceremonies without which the, renunciation will not be complete.'

13. The Division Bench in the aforesaid case has very clearly held that the person who adopts sanyas must perform the necessary ceremonies without which the renunciation will not be complete. In this view of the matter I am of the opinion that if Moti Lal in his statement said that he became sanyasi thirty years ago will not make him sanyasi until he has proved that he has entered into that religious order after performing the necessary religious ceremonies. If necessary religious ceremonies have not been performed the renunciation of worldly interests will not be complete and it cannot be taken that the person has adopted sanyas.

14. In Krishna Singh v. Mathura Ahir AIR 1980 SC 707 Hon'ble Supreme Court held that 'In order to prove that a person has adopted the life of a sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desires for them or that such ceremonies are performed which indicate severance of his natural family and his secular life. It must also be proved in case of orthodox sanyasi that necessary ceremonies have been performed, such as Pindadans or Birajohoma or Prajapathyesthi without which the renunciation will not be complete.'

15. It is thus well settled that in the absence of necessary ceremonies having been performed by a person entering in the life of sanyasi, renunciation will not be perfect, nor his civil death can be assumed so as to divest him from all right in the property belonging to him. There was neither any pleading or any issue on the point, nor any evidence was led to establish that necessary religious ceremonies were performed by Moti Lal at the time when he is said to have adopted sanyas. and as such merely on his admission and declaration to the effect that he had taken sanyas thirty years ago will not make him a perfect sanyasi so as to disentitle him in claiming any right in the property. Plaintiff Moti Lal claimed one-third share in the properties. It was for the defendant, who had contested the claim of plaintiffs, to establish that Moti Lal had ceased to hold interest in the property having entered into the religious order of a perfect orthodox sanyasi by performing necessary religious ceremonies without which renunciation and retirement from worldly affairs will not be complete and he will not become dead to the world. Such a case was neither pleaded nor it was established by any evidence on record that necessary religious ceremonies were performed by Moti Lal while adopting religious order of orthodox sanyasi. His admission or declaration of becoming sanyasi will not help the defendant-appellant in the absence of any evidence to establish the said fact, as held in Baldeo Prasad's case : AIR1930All643 (supra).

16. In the present case the only defence taken was that Moti Lal was not heard for a long period and as such his civil death was to be presumed. It was further asserted that plaintiff No. 1, who has filed the suit, is not real Moti Lal and is not his brother and that some imposter has filed the suit. A concurrent finding has been recorded by the courts below to the effect that Moti Lal. who has filed this suit is real brother of the appellant and he is not an imposter. I have gone through the judgment and evidence on record and I do not find any error in that finding. The courts below, in my opinion, have rightly held that plaintiff to have two-third share in the property.

17. In the result, this appeal fails and is accordingly dismissed. I however, direct the parties to bear their own costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //