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Rup Kishor Vs. Patrani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All818
AppellantRup Kishor
RespondentPatrani and ors.
Cases ReferredRamcharan Sahu v. Goga
Excerpt:
- - we, however, do not think it necessary to go into this question in detail because the appeal must fail on other grounds. it is obvious that the dispute had then clearly arisen between the alleged reversioners and the widow and her alleged adopted son, and any statement made by mt......was duly executed by the parties concerned. he then goes on to allege that a suit was brought by kishan chand claiming to be the bandhu of the deceased son against the collaterals of the present plaintiff, which was ultimately struck off on a compromise having been arrived at by the parties to that suit. in that suit the plaintiff was represented by his natural father, damodar das, who signed a deed of relinquishment and a deed of transfer, acting as the plaintiff's guardian. under this deed the plaintiff relinquished all rights so far as the villages lilhar and karanpur pindri were concerned.3. we may note in this connexion that these villages had been recovered by kishan chand from the transferee of mt. durga dei by a separate suit in 1908 to which the present plaintiff was not a.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for recovery of possession of a share in villages Lilhar and Karanpur Pindri, by avoidance of a deed of relinquishment and a deed of transfer, dated 7th May 1911, executed on behalf of the plaintiff, when he was a minor, by his natural father Damodar Das.

2. The plaintiff's case briefly put is as follows: Brij Kishor was the original owner of this property and had no child. Shortly before his death he gave an oral permission to his wife, Mt. Durga Dei, to adopt a son, and then died in 1878. In 1905 Mt. Durga Dei, acting on this permission, adopted the plaintiff, and a deed of adoption was duly executed by her on 11th March 1905. The plaintiff alleged that in a suit brought by Jivan Das and others, claiming to be the collaterals of Brij Kishor against the present plaintiff Rup Kishore, a compromise was arrived at under which the estate was divided in the ratio of 6 annas and 10 annas between the claimants and the present plaintiff, and a tamliknama, dated 10th August 1906, was duly executed by the parties concerned. He then goes on to allege that a suit was brought by Kishan Chand claiming to be the bandhu of the deceased son against the collaterals of the present plaintiff, which was ultimately struck off on a compromise having been arrived at by the parties to that suit. In that suit the plaintiff was represented by his natural father, Damodar Das, who signed a deed of relinquishment and a deed of transfer, acting as the plaintiff's guardian. Under this deed the plaintiff relinquished all rights so far as the villages Lilhar and Karanpur Pindri were concerned.

3. We may note in this connexion that these villages had been recovered by Kishan Chand from the transferee of Mt. Durga Dei by a separate suit in 1908 to which the present plaintiff was not a party. Kishan Chand had then succeeded as against the transferee in proving that he was the next heir of the last male owner. These villages were not in dispute in the suit brought by Kishan Chand in 1910 against the present plaintiff, but were dealt with by the deeds of relinquishment and transfer mentioned above. The plaintiff's case is that these deeds are in no way binding upon him, inasmuch as they were executed without the sanction of the Court, and his natural guardian had no authority to bind him.

4. The contesting defendants are Kishan Chand's widow and her transferees. They deny that there was any permission given by Brij Kishor to adopt. The factum of adoption, however, is not disputed before us and is proved by overwhelming evidence. They further plead that the present claim is barred by limitation.

5. The learned Subordinate Judge has dismissed the suit; hence this appeal.

6. It may perhaps be difficult to support the finding that the plaintiff is bound by the compromise effected by his natural father Damodar Das. We, however, do not think it necessary to go into this question in detail because the appeal must fail on other grounds.

7. We take up first the question of the oral permission to adopt. This is said to have been given in 1878, and was certainly not acted upon for nearly 27 years. The burden, therefore, lies heavily on the plaintiff to establish that such an oral permission had actually been given.

8. There is now no oral evidence available of witnesses who could testify to the permission having been given in their presence. The plaintiff relies on certain documentary evidence in support of his case.

9. Reliance is placed on the deposition of Mt. Durga Dei, dated 20th May 1905 in suit No. 2 of 1905 brought by Jivan Das and others to contest the adoption. It is obvious that the dispute had then clearly arisen between the alleged reversioners and the widow and her alleged adopted son, and any statement made by Mt. Durga Dei in the course of that litigation cannot be used in evidence against Kishan Chand and his representatives, who were no parties to that suit. Section 32, sub-Cl.(5) would be inapplicable as the statement was made after the dispute had arisen. Section 33 cannot apply inasmuch as the present defendants had no opportunity to cross-examine Mt. Durga Dei.

10. Reliance is next placed on the statement of two witnesses, Kewal Kishan and Kundan, who were examined in another suit No. 202 of 1906, brought by the plaintiff Rup Kishor against a third party Batuk Nath Sircar. To this suit also the present defendants were no parties. Batuk Nath Sircar denied the adoption of Rup Kishor and some evidence was led on the question. The case, however, was ultimately compromised. In our opinion the depositions of the witnesses are not admissible against Kishan Chand's representatives. Section 32, sub Clause (5) cannot apply because the dispute has arisen previously and also arose in that particular case. Section 33 is not applicable because the present defendants had no opportunity to cross-examine these witnesses.

11. There is a third ground on which also these depositions are not admissible. In their statements the witnesses, Kewal Kishan and Kundan, merely tried to prove the oral permission given by Brij Kishor to his wife and did not say a word as to the adoption of the Rup Kishor. Their statements, therefore, did not relate to the existence of any relationship by adoption, inasmuch as they did not state that Rup Kishor was the adopted son of Mt. Durga Dei.

12. A question of law has been raised by the learned advocate for the appellant in respect of these three depositions. His contention is that Section 32, Sub-C1. (5) becomes applicable when the statement was made before the question in issue was raised which according to his contention means before the commencement of the present litigation. For this view he relies on the head-note in the case of Mauladad Khan v. Abdul Sattar [1917] 39 All. 426, which says that the statement to be admissible must be before the litigation in the present case arose. That head-note in our opinion, is misleading. The learned Judges in their judgment at p. 358 had used, a different language, namely, that the plaint contained a statement made before the question in dispute in the present suit was raised. The plaint which was referred to in that case had been filed before any dispute had arisen. The head-note of the same case, as reported in Ram Charan Sahu v. Goga : AIR1927All446 , does not contain any such passage. The point, in our opinion, is concluded by the case decided by their Lordships of the Privy Council, viz., Kalka Prasad v. Mathura Prasad [1908] 30 All. 510. In this case a dispute arose in 1896 on the death of Mt. Parbati. In 1898 in a suit brought by one Sheo Sahai a pedigree was filed. After this the suit, which went up in appeal to their Lordships of the Privy Council, was filed in 1901. At p. 522 their Lordships held that the pedigree filed in 1898 was inadmissible having been made post litem motam. We may also refer to another case decided by their Lordships of the Privy Council, Bahadur Singh v. Mohar Singh [1902] 24 All. 94, where statements made in, 1847 were held to be admissible on the ground that it did not appear that the heirship of the then claimants was really in dispute at that time. No such point could have arisen for consideration if the statements made prior to the suit before their Lordships were automatically admissible. We must, therefore, exclude from consideration the depositions of Mt. Durga Dei, Kewal Kishan and Kundan.

13. The last piece of evidence relied upon is the deed of adoption executed by Mt. Durga Dei. It does undoubtedly contain a recital that she had the permission from her deceased husband. In ordinary circumstances a recital of this kind made by the widow may be of some weight. There are, however, circumstances which in our opinion destroy its value. In the first place, as soon as this deed was executed, the reversioners challenged the statements and actually brought a suit No. 2 of 1905, followed by another suit No 14 of 1906. In the second place, the recital in the document is not consistent with the statement of Mt. Durga Dei when made in the reversioners' suit. In the deed she had alleged that the permission was given to her four days before Brij Kishor's death. In her deposition, on the other hand, she alleged that the direction to adopt was given at the time of his death-in fact when the husband was at the point of death and had been brought downstairs-and that he died an hour and a half after giving this direction. It is, therefore, apparent that Mt. Durga Dei herself was not consistent in her statements. We, therefore, decline to accept the recital in the deed of adoption as any satisfactory evidence of the truth of the statement.

14. There is no other evidence in support of this alleged permission, and in the absence of any satisfactory evidence we must uphold the finding of the Court below that no such permission has been proved. The result, therefore, is that the plaintiff's claim as the adopted son of Brij Kishor falls to the ground.

15. In para 4 of the plaint the plaintiff had set forth the particulars of the compromise and the tamliknama between himself and the reversioners, Jivan Das and others. Although he did not expressly base his claim on a title derived from these reversioners, he claimed only a 10/16th share which was given to him under that compromise. The learned advocate for the plaintiff, therefore, contends that even independently of his claim as the adopted son, the plaintiff is entitled to recover this property as a representative of the reversioners Jivan Das and others, and that if Kishan Chand is not an heir, the plaintiff can succeed against Kishan Chand's representatives on the strength of an assignment from the reversioners Jivan Das and others.

16. But before succeeding on this second ground the plaintiff will have to show that his claim on such a new case is within time, and that Jivan Das and others were in fact the next heirs of the deceased.

17. Mt. Durga Dei died on the 8th June 1905. The present suit was instituted more than 12 years from her death. The claim by the plaintiff, as a representative of the reversioners Jivan Das and others, would fall under Article 141, Indian Limitation Act, being a suit by a Hindu entitled to the possession of an immovable property on the death of a Hindu female. Prima facie the suit was filed beyond time. Under 0. 7, Rule 6 the plaint ought to have shown the ground upon which exemption from the law of limitation was claimed. Time began to run against Jivan Das and others as soon as Mt. Durga Dei died in 1905. Once time began to run there could be no suspension. Section 9, Indian Limitation Act prescribes that once time has begun to run, no subsequent disability or inability to sue stops it. The present plaintiffs, therefore, cannot take advantage of his minority so far as this question of limitation is concerned. It was the duty of the plaintiff or his predecessors, Jivan Das and others, to have instituted the suit within 12 years of the death of the widow. We have already remarked that in the previous litigation, to which the present plaintiff was a party, the villages Lilhar and Karanpur Pindri were not the subject-matter of dispute at all. Kishan Chand only brought a suit to recover these from the transferee of Mt. Durga Dei, and Kishan Chand and his representatives have been in possession all along Even when the compromise of the 7th May 1911 was arrived at, Kishan Chand's, right to retain possession of these villages was not challenged. There was in fact no acknowledgment by Kishan Chand of any title of the plaintiff with regard to these properties. The present claim for recovery of these villages, therefore, must be held to be barred by time.

18. The learned advocate for the plaintiff contends that in view of the compromise effected in 1911 the running of limitation must be deemed to have remained suspended till the plaintiff was able to institute the present suit to set aside that compromise. In our opinion it is impossible to hold that there was any such suspension at any time or that the Court ever recognized the right of Rup Kishor or his predecessor to get these villages as against Kishan Chand. It cannot, therefore, be suggested that Rup Kishor having got what he wanted, it was not incumbent upon him to bring a suit. This question has been considered at some length in the case of Ramcharan Sahu v. Goga : AIR1927All446 , and it is, therefore, not necessary for-us to discuss the point at any length. We hold that the present claim is barred by limitation.

19. In view of our finding that the claim is barred by limitation it is not necessary to go into the question of Jivan Das pedigree, which the Court below has found not proved.

20. The appeal is accordingly dismissed with costs.


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