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Govindram (through L.R's.) Vs. Ramgopal and Ors. (24.07.1984 - MPHC) - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 537 of 1973
Judge
Reported inAIR1984MP136; 1985MPLJ20
ActsHindu Law; Hindu Adoption and Maintenance Act, 1956 - Sections 11
AppellantGovindram (through L.R's.)
RespondentRamgopal and Ors.
Appellant AdvocateR.R. Saghmare, Adv.
Respondent AdvocateN.K. Sanghi, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Sumantrabai v. Rishabhkumar
Excerpt:
.....the only heir of deceased bhanwarlal and shantilal having acquired the rights of mansingh in the suit property as a result of deed of release executed by mansingh, shantilal alone was entitled to convey the right to redeem the property in question to the plaintiff and the lower appellate court was, therefore, justified in decreeing the plaintiff's suit. 4. it is now well settled that for a valid adoption amongst jains, no authority, express or implied, is necessary for a widow of a sonless man making an adoption to him and that the only essential ceremony for the validity of the adoption is the giving and taking of the adopted son. learned counsel for the appellants contended that their testimony was unreliable because in another suit filed against shantilal by some person, those..........of shantilal was valid and that the plaintiff had, therefore, acquired the right to redeem the suit property. the lower appellate court further held that the defendant-appellants were, however, entitled to recover expenses amounting to rupees 1.200/- from the plaintiff. in this view of the matter, the lower appellate court allowed the appeal and setting aside the judgment and decree passed by the trial court, decreed the plaintiff's suit directing that the plaintiff was entitled to re-deem the mortgaged property from the! defendants after making payment of the amount due under the mortgage along with a sum of rs. 1.200/-. aggrieved by the judgment and decree passed by the lower appellate court, the defendants have preferred this appeal. the plaintiff-respondents have also filed.....
Judgment:

G.G. Sohani, J.

1. This is defendants' second appeal arising out of a suit for redemption - instituted by the plaintiff-respondent. The plaintiff's case, in brief, was that Dhnnraj s/o Hceralal and Bhanwarlal s/o Keshrilal, who were related, owned two shops at Bhanpura that they mortgaged these shops by executing a - registered deed of mortgage on 27-1-1943 in favour of defendants Nos. 1, 2 and 3 to secure an advance of Rs. 2,000/- and delivered possession of the mortgaged property to the said defendants. It was furthere averred that Bhanwarlal, who was a Jain, died some time in the year 1949 leaving behind him his widow Nanibni and daughter's son Shantilal, defendant No. 4, who was adopted' by Nanibai. It was further averred that Nanibai died some time in the year 1903 and thus, defendant No. 4 Shantilal became the sole surviving legal representative of the property of deceased Bhanwarlal. As regards the other mortgagor Dhanraj, the plaintiff averred that Dhanraj died some time in the year 1951; that his -son Kanmal, before his death, had adopted Mansingh, defendant No. 5, and that Mansingh executed a registered deed of release on 2-7-1957 in favour of defendant No. 4, Shantilal, surrendering his rights in the mortgaged property. The plaintiff further averred that Shantilal, defendant No. 4, sold the equity of redemption to the plaintiff by a registered deed of sale dated 18-3-1966 and as defendants Nos. 1 to 3 failed to redeem the mortgaged property despite repeated demands in that behalf, the plaintiff brought the present suit for redemption. The suit was resisted by the defendants-appellants inter alia on the ground that the adoption of Shantilal was not valid and that he could not, therefore, convey the equity of redemption to the plaintiff. The trial Court upheld this contention and dismissed the plaintiff's suit. On appeal, the lower appellate Court held that the adoption of Shantilal was valid and that the plaintiff had, therefore, acquired the right to redeem the suit property. The lower appellate Court further held that the defendant-appellants were, however, entitled to recover expenses amounting to Rupees 1.200/- from the plaintiff. In this view of the matter, the lower appellate Court allowed the appeal and setting aside the judgment and decree passed by the trial Court, decreed the plaintiff's suit directing that the plaintiff was entitled to re-deem the mortgaged property from the! defendants after making payment of the amount due under the mortgage along with a sum of Rs. 1.200/-. Aggrieved by the judgment and decree passed by the lower appellate Court, the defendants have preferred this appeal. The plaintiff-respondents have also filed cross-object ions partly aggrieved by the judgment and decree passed by the lower appellate court.

2. Shri Waghmare, learned counsel for the appellants, contended that the lower appellate Court erred in law in holding that the adoption of Shantilal was valid. If was contended that as Shantilal had not acquired any right to redeem the property in question he could not convey that right to the plaintiff. In reply, Shri Sanghi, learned counsel for the plaintiff-respondent, contended that from the evidence on record, it was clearly established that Shantilal was validly adopted son of deceased Bhanwarlal and that even assuming that the adoption of Shantilal was not valid, Shantilal being the only heir of deceased Bhanwarlal and Shantilal having acquired the rights of Mansingh in the suit property as a result of deed of release executed by Mansingh, Shantilal alone was entitled to convey the right to redeem the property in question to the plaintiff and the lower appellate Court was, therefore, justified in decreeing the plaintiff's suit. It was further coil-tended that the lower appellate Court had erred in law in directing the plaintiff to pay the amount of Rs. 531-83 on account of repairs to the mortgaged property.

3. In view of the contentions urged before me the first question that arises for consideration is whether Shantilal's adoption was valid. Learned counsel for the parties conceded that as the approach by the lower appellate Court in this behalf was not proper, inasmuch as it held that giving and taking of a boy was not necessary for a valid adoption amongst Jains, it was a fit case where this court should appreciate the evidence on record to ascertain whether there was in fact a' valid adoption of Shantilal.

4. It is now well settled that for a valid adoption amongst Jains, no authority, express or implied, is necessary for a widow of a sonless man making an adoption to him and that the only essential ceremony for the validity of the adoption is the giving and taking of the adopted son. The lower appellate Court erred in law in holding that the ceremony of giving and taking of the adopted son was not necessary. It did not, therefore, refer to the evidence on record in that behalf. Learned counsel for the parties took me through the relevant evidence. PW 7 Shantilal deposed that after the tying of turban before the Panchas, his father stating that he was giving his son in adoption, had physically handed over Shantilal to Nanibai and that Shantilal sat on the lap of Nanibai, who declared that henceforth Shantilal would be her son. To the same effect is the testimony of PW 8 Indermal and PW 10 Bapulal, members of the community of Shantilal, who were present at the ceremony of adoption. Learned counsel for the appellants contended that their testimony was unreliable because in another suit filed against Shantilal by some person, those witnesses had, in their statements Exs. D-3 and D-4, referred to the ceremony of tying of the turban only. I fail to see any contradiction in the earlier testimony of these witnesses. The previous statements of these witnesses are not shown to be inconsistent with their testimony in this suit. An omission in an earlier statement will not by itself mean that the earlier statement is inconsistent with the statement made during the trial. Moreover, the omission is explained by these witnesses by stating that no question was put to them in their earlier statements about the physical act of giving and taking in adoption. There is nothing in the cross-examination of these witnesses to render their testimony suspect. Moreover, PW 1 Mansnigh, one of (he co-owners of the property left behind by deceased Dhanraj and Bhanwarlal, acted upon the adoption of Shantila! and executed a deed of release Ex. P 2 in favour of Shantilal, acknowledging him to be the adopted son of deceased Bhan-warlal. As held by this Court in Mt. Sumantrabai v. Rishabhkumar, AIR 1952 Nag 295, that where the adopted son has been treated as such by persons, who were vitally interested in denying it, the burden on those, who challenge the adoption, is of the heaviest order. The defendant-appellants have not brought any material on record to discharge that burden. Having given my anxious consideration to the matter. I have come to the conclusion that the plaintiff has satisfactorily proved that Shantilal's adoption by Nanibai has been satisfactorily proved. The facts that PW 1 Mansingh, the other co-owner of the equity of redemption, had surrendered his rights in favour of PW 7 Shantilal by executing the registered deed of release Ex. P 2 and that PW 7 Shantilal had validly conveyed his rights by the registered deed of sale Ex. P 3 in favour of the plaintiff, were not disputed before me. Therefore, though for different reasons, I affirm the finding of the lower appellate Court that PW 7 Shantilal was validly adopted by Nanibai and that the right of redemption in the suit property was validly conveyed t0 the plaintiff.

5. As regards cross-objections, learned counsel for the plaintiff-respondent pointed out that the plaintiff could not have been directed to pay the amount of Rupees 303-42 being the amount of bill Exs. D~16, D-17, D-18 and D-19 as there was no evidence to show that that expenditure was incurred and the amount of Rs. 122.15 towards electric fitting and the amount of Rs. 106-06 towards taxes. Learned counsel for the appellants was unable to show as to how the defendant-appellants could be held entitled to those amounts at the time of redemption. The decree passed by the trial Court, therefore, deserve to be modified to that ex-: tent.

6. No other point was urged.

7. For all these reasons, this appeal is dismissed and the cross-objections are partly allowed. The judgment and decree passed by the lower appellate Court are affirmed with this modification that the plaintiff is entitled to redeem the mortgaged property after making payment of Rs. 2.000/- (Two Thousand), the mortgage amount, and a sum of Rs. 668,17 (Six Hundred and sixty-eight and paise Seventeen only) on account of repairs to the mortgaged property. Parties shall bear their own costs of this appeal and cross-objections.


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