Kalyan Dutta, J.
1. This second appeal to directed against the judgment and decree of the learned District Judge, Jodhpur, dated 8th July, 1966 by which the two appeals NOS. 25 of 1962 and 131 of 1962, filed by the defendants against the preliminary decree and the final decree passed in a suit for redemption by the Additional Civil Judge, Jodhpur, were dismissed with costs and the cross-objections filed fey Sardar Mal and has son Sudan Mal were partly accepted and the amount of mesne profits at the rate of Rs. 60 p.m. with effect from the date of final decree till the date of tine judgment of the learned District Judge, was added in the decree as payable by the defendants to the plaintiffs.
2. The relevant facts giving rise to the suit for redemption, out of which this appeal arises, may be described as follows :--
3. Sardar Mal and his son Surjan Mal filed a suit for redemption of a shop in dispute situated in Sire Bazar. Jodhpur, on the basis of a mortgage-deed (Ex. 25) executed by Mst. Bugi widow of Ladu Ram in favour of Chunni Lal Baheti on Falgun Sudi 10 Samwat-year 1957 (28-2-1901). The suit was filed against Manak Lal and Moti Lal sons of Chunni Lal and their mother Mst. Dhapi Bai alias Tulsi Bai. The allegations in the plaint were that one Ladu Ram owned and possessed a shop situated in Sire Bazar, Jodhpur. He died in Samvat-year 1956 leaving behind has widow Mst. Bugi and. his two married daughters Mst. Sayar Kanwar and Mst. Udi. He had two sons Narain Das and Ranchor Das. During the lifetime of Laduram, Ranchor Das went in adoption to another family at Laskar and Narain Das went away from has house and was not heard of thereafter by his parents and others, who would naturally have heard of ham, if he had been alive. After Ladu Ram's death, his widow Mst. Bugi took Sardar Mal plaintiff in adoption and kept him with her tout she could not execute an adoption-deed in his favour. She went to Laskar for bringing back the will executed in favour of Ranchor Das but to Laskar she fell sick and died in the month of Baisakh Samvat-year 1971, Before her death, she. however, directed her daughter Sire Kanwar and close relative Garu Ram Jajoo to execute a deed of adoption, in favour of Sardar Mal on her behalf and get it duly registered. In pursuance of her directions the daughters of Mst. Bugi executed a deed of adoption to favour of Sardar Mal Jajoo and got it duly registered by the then registering authority, Since then Sandar Mal was being treated as an adopted son of Ladu Ram. The alternative case of the plaintiff Sardar Mal was that if lor any reason his adaption is not considered to be valid in the eye of law, he became owner of the properties of Ladu Ram, because Ladu Ram's nearest reversioner Goru Ram relinquished his claim to Ladu Ram's property in his favour on 24-1-1922 and on Ashad Sudi 9, Samvat year 1979 by executing a will in his favour. Similarly Kanhaiya Lal son of Ranchor Das also relinquished his claim, if any. to Ladu Ram's property in his favour by executing a registered deed of relinquishmemt on 2nd July, 1936.
4. On 15th January, 1954, the defendants put forward a plea that the old mortgage-deed of Samvat-year 1957 was substituted by another mortgage-deed of Samvat-year 1968 and that the plaintiffs' suit was not maintainable on the basis of the old mortgage. Sardar Mal plaintiff, therefore, amended his plaint and based his suit upon the substituted mortgage-deed dated 17th December, 1911, which was executed by Mst. Bugi in favour of Chunnilal, father of Motilal and Manaklal defendants for a sum of Rs. 4,000. The defendants thereupon submitted a written. statement, wherein the mortagage was admitted but the factum and validity of adoption of Sardar Mal by Mst. Bugi was challenged. The defendants further alleged that Goru Ram was not the nearest reversioner of Ladu Ram and that he did not execute any will in favour of Sardar Mal in raspect of the property of Ladu Ram. Likewise they denied that Kanhaiya Lal had executed any deed of relinquishment of his right to the property of Ladu Ram, in favour of Sardar Mal. Alternatively, it was pleaded that if any such deed of relinquishment as alleged by the plaintiffs is proved to have been executed, it was registered at Pali and it was not valid as the property affected thereby was situated at Jodhpur and not at Pali. The defendants further pleaded that Ladu Ram and his wife exeouted a will on 25th January, 1896, in favour of their son Ranchor Das, who had gone in adoption to Ramdeo Jajoo resident of Laskar, Gwalior. By virtue of this will, the entire property belonging to Ladu Ram and Bugi was bequeathed to Ranchor Das, who only could be the true owner of Ladu Ram's property after the death of Mst. Bugi in. Samvat-year 1971. The case of the defendants, therefore, was that after the death of Ranchor Das. his son Kanhaiya Lal became the owner of Ladu Ram's property and as during the pendency of the suit Kanhaiya Lal sold away the equity of redemption to the defendants for Rs. 1,500, on 30th January, 1954, the defendants became the full owners of the property in dispute of which they were already mortgagees. Hence their contention was that the shop in dispute could not be redeemed. The plaintiffs, on the other hand, prayed that a decree for redemption of the property in dispute may be passed upon payment of whatever sum is found to have been borrowed for legal necessity by Mst. Bugi and that excessive interest may fee reduced and mesne profits be awarded to them with effect from the date of notice Ex. 16, dated 15th March, 1945. The defendants asked for better particulars. The plaintiffs thereupon furnished better particulars on 29th April, 1957, wherein it was alleged that a sum of Rs. 1,250 only out of the mortgage money of Rs. 4,000, was paid to Mst. Bugi for legal necessity and that interest may be calculated on the sum that may be found due.
5. The learned Additional Civil Judge, Jodhpur, framed the following issues upon the pleadings of the parties:--
1. Whether the plaintiff No. 1 Sardar Mal is the adopted son of Ladu Ram? If so. whether his adoption is valid?
2. Whether Sardar Mal is the next reversioner and heir to Ladu Ram? If so, what is its effect on the suit?
3. Whether Rs. 1,250, only were paid to Mst. Bugi out of the mortgage money amounting to Rs. 4,000, mentioned in the mortgage-deed?
4. Whether Mst. Bugi executed: another mortgage deed in Samvat-year 1968 for Rs. 4,000, without consideration and there being novation of contract, the suit, on the basis of the former mortgage-deed is not maintainable (deleted vide order dated 12-8-1957)?
5. Whether the plaintiffs are entitled to more than Rs. 1,251, as interest, in case a decree for redemption of the mortgage property is passed (deleted. vide order of the court dated 29-10-61)?
6. Whether Gauru Ram bequeathed the disputed shop in favour of the plaintiffs? If so, whether he had a right to do so?
7. Whether Katihaiyalal of Laskar relinquished his rights in the disputed shop in favour of the plaintiff? Whether he had right to do so and whether the deed registered at Pali is legally valid?
8. In case issue No. 7 is decided in favour of the plaintiffs, whether Kanhaiyalal of Laskar had a right to sell the shop in question (in favour of the defendants) in the face of his having relinquished the rights (in favour of the plaintiff)?
9. Whether the sale effected by Kanhaiya Lal in favour of the defendants is without consideration? If so, what is its effect on the suit?
10. Whether the said sale by Kanhaiya Lal in favour of the defendants being effected during the pendency of the present suit is ineffective against the plaintiffs?
11. Whether the defendants spent Rs. 141, in getting shutters and electric fittings and other repairs to the suit property? If so, whether they are entitled to recover the amount from the plaintiff?
12. Whether the plaintiff is entitled to get the mesne profits from the defendants? If so, how much?
13. What relief the plaintiff is entitled to get?
14. Whether the amount of mortgage money in excess of Rs, 1,250, was paid to Mst. Bugi by the mortgagee for her legal necessity (this issue was framed on 14-9-61)?
Thereafter he recorded the evidence of the parties. The plaintiffs produced 12 witnesses in support of their claim. Besides oral evidence, they produced 25 documents. The defendants examined 17 witnesses and also produced a good number of documents. The learned Additional Civil Judge considered the entire evidence and decreed the plaintiffs' suit for redemption upon payment of Rs. 3,814.87. Aggrieved by the preliminary and final decrees passed by the Additional Civil Judge, the defendants preferred appeals Nos. 25 and 137 of 1962 in the court of the learned District Judge, Jodhpur. The plaintiffs also filed cross-objections. The learned District Judge dismissed both the appeals with costs and partly allowed the cross-objections filed by Sardar Mal as stated above. Hence this second appeal and cross-objections.
6. During the course of hearing arguments advanced by the learned counsel for the parties, it came to my notice that the trial court did not frame a distinct issue in respect of the will alleged to have been executed by Ladu Ram and his wife Mst. Bugi on Magh Sudi 10 Sarnvat-Year 1952 (corresponding to 25th Jan., 1896) in favour of their son Ranchor Das, who had gone in adoption to some other family at Laskar Gwalior. As the parties were at variance on this proposition of fact and as it appeared that the issues framed by the trial court were not comprehensive enough to cover the important question whether this will was duly executed by Ladu Ram and Mst. Bugi in a sound disposing state of mind and whether this will was revoked later on by Mst. Bugi during her lifetime, I thought it proper to frame the following new issues upon the pleadings of the parties:--
1. Whether Ladu Ram and Mst. Bugi duly executed will Ex. DW5A/1 on Magh Sudi 10 Smvt. 1952 in favour of Ranchor Das in respect of the property in dispute in sound disposing state of minds?
2. If so, whether this will was revoked by Mst. Bugi during her lifetime?
3. Whether this will stood revoked by reason of Sardar Mal plaintiff being adopted to Ladu Ram by Mst. Bugi after Ladu Ram's death?
After framing the aforesaid new issues. I remitted the same to the trial court for recording additional evidence of the parties on these issues and to return the evidence to this Court together with its finding thereon and the reasons therefor. The learned Additional Civil Judge recorded the evidence of the parties on these issues and upon consideration thereof arrived at a conclusion that the will Ex. DW 5A/1 was executed by Ladu Ram and Mst. Bugi in sound disposing state of mind on Magh Sudi 10 Smvt. 1952 and that it was not revoked by Mst. Bugi during her lifetime. He further held upon evidence that the will executed by Ladu Ram and Mst. Bugi does not stand revoked by reason of Sardar Mal plaintiff having been adopted to Ladu Ram by Mst. Bugi after Ladu Ram's death. The evidence recorded by the Additional Civil Judge and his findings on the new issues formed part of the record in the suit. Sardar Mal plaintiff no doubt presented a memorandum of objections to the findings of the learned Civil Judge. The objections were heard at the time of hearing of the appeal.
7. I have perused the record and heard the arguments advanced by the learned counsel for the parties. Firstly, it has been contended on behalf of the appellants that the learned District Judge committed an error in holding that Sardar Mal had been taken in adoption to Ladu Ram by the latter's widow Mst. Bugi on Asad Sudi 9 Samvat-year 1968 (corresponding to 23rd June, 1912). Note: In the erstwhile Jodhpur State every new Samvat year commenced on Shravan Sudi 1. According to the submission of the learned counsel for the appellants, the decision of issue of adoption of Sardar Mal is based partly on evidence which is insufficient in law to support it and partly on evidence, which is per se inadmissible and could not possibly tbe received under any provision of the Evidence Act. It was further argued that it is the duty of this Court to interfere and to do justice in the case, because the findings of both the courts below on the issue of Sardar Mal's adoption are given relying upon inadmissible evidence or by ignoring important evidence e.g. registered deed of adoption executed by the daughters of Ladu Ram. In support of his above contention, the learned counsel for the appellants placed reliance on the following authorities: Gokul Pandey v. Baldeo Sukul, AIR 1928 Pat 113, Kishanlal v. Sohan Lal, ILR (1955) 5 Raj 191 = (AIR 1955 Raj 45), Maheswar v. Malana Bewa, AIR 1964 Orissa 174 and K. V. Sabbaraj.u v. C. Sanbbaraju, AIR 1968 SC 947.
The learned counsel appearing on behalf of the respondents, on the other hand, urged that the question whether or not Sardar Mal had been adopted to Ladu Ram by Mst. Bugi was purely a question of fact and that both the courts below arrived at a conclusion upon consideration of the entire documentary and oral evidence adduced by the parties that Sardar Mal had been adopted to Ladu Ram by the latter's widow Mst. Bugi. Such a concurrent finding of fact cannot be disturbed in second appeal by this Court simply for the reason that the first appellate court relied upon some documentary evidence also in support of such finding. In support of his above proposition, the learned counsel for the respondents invited my attention to the following authorities of the Supreme Court: Arjan Singh v. Kartar Singh, AIR 1951 SC 193, D. Pattabhiramaswamy v. S. Hanumayya, AIR 1959 SC 57, Paras Nath v. Mohani Dasi, AIR 1959 SC 1204 and Ramachandra v. Ramalingam, AIR 1963 SC 302. I have carefully gone through these authorities. The principle laid down in these decisions is that the High Court is not empowered to interfere with a pure finding of fact in second appeal on the ground of its being erroneous unless there is a substantial error or defect in the procedure provided by the Civil Procedure Code or by any other law for the time being in force, which may have produced error or defect in the decision of the case upon merits. The dbservations made by their Lordships of the Supreme Court in D. Pattabhiramaswamy v. B. Hanumayya. (AIR 1959 SC 57) (supra) are quoted below:--
'Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence makes it any the less a finding of fact (see ILR 11 Lah 199 = (AIR 1930 PC 91)). But. notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public.'
It is, therefore, a settled law that if the findings of fact given by the first appellate court are based upon an appreciation of all the relevant evidence, the High Court would be reluctant in upsetting them. It is only when the finding is based on no evidence at all or where the evidence is disbelieved for no reason or if any substantial error or defect in procedure has crept in, then interference with the concurrent findings of fact is called for in second appeal.
In the present case, the learned District Judge considered all the evidence documentary as well as oral led by the parties on the issue of adoption and thereafter arrived at a finding that the adoption of Sardar Mal had taken place and such a finding of fact by the court of the first appeal is final. There is reliable evidence of Sardar Mal, P.W. 3. Amba Lal, P.W. 6 and Devi Lal, P.W. 9 on the record to prove the adoption. Sardar Mal's statement on oath is that his real father Laxman Das gave him in adoption and Mst. Bugi widow of Ladu Ram, deceased, took him in adoption. He was made to sit in his adaptive mother's lap by his father Laxman Das and in this manner the ceremony of giving and taking was performed in the presence of respectable persons of his community. Thereafter coconuts were distributed amongst the persons present at the time of the ceremony and a turban was tied over his head. The evidence of Sardar Mal finds corroboration from the testimonies of P.W. 6 Amba Lal and P.W. 9 Devi Lal in all essential particulars. P.W. 6 Amba Lal, who is an old man of about 77 years of age. has stated on oath that he played the role of a priest at the time of adoption. According to his version, Sardar Mal sat in the lap of Mst. Bugi. He was made to sit in her lap by his father Laxman Das. This witness claimed to have recited 'Mantras' and performed 'Pooja' of Ganesh deity. He saw that a turban was tied over the head of Sardar Mal by Mst. Bugi. According to him, coconuts were distributed amongst the persons who had eye-witnessed the ceremony of adoption. He put a mark of vermilion on the forehead of Sardar Mal at that time.
Likewise, Devi Lal claimed to have attended the ceremony of adoption along with his father Jai Shanker. He also proved the ceremony of giving and taking in adoption. Both the courts below relied upon the direct evidence of these witnesses in proof of adoption after taking into consideration all the possible criticism made against their testimonies by the learned counsel for the appellants. Hence, it cannot be safely held that the finding of fact recorded by the court below is against the weight of evidence or that it is based on no evidence or that it is believed for no reason at all. Apart from this direct evidence in proof of adoption, the learned District Judge has taken into consideration the evidence of P.W. 7 Shivraj Maheshwari and P.W. 10 Ratan Lal Maheshwari. from which it was established that Maheshwari community, to which Ladu Ram deceased belonged, recognised Sardar Mal as son of Ladu Ram by extending invitations to him in the name of Ladu Ram's son Sardar Mal. The learned District Judge further held upon evidence of D.W. 1 Nath Mal and D.W. 9 Jagan Nath that after adoption Sardar Mal has been in continuous possession of Ladu Ram's property since Samvat-year 1968 and: rightly observed that if Sardar Mal had not been adopted to Ladu Ram by the latter's widow Mst. Bugi, he would not have been permitted by Bugi or by her two daughters to occupy Ladu Ram's house, because in Marwar the right of a daughter to succeed to the property of her father in the absence of his collaterals had been recognised.
It has been laid down in several cases that after a lapse of long years, it is likely that the evidence of adoption may not be available and it may become difficult to find any witness who had eye-witnessed the ceremony of actual giving and taking in adoption. In such cases if the party alleging adoption adduces some evidence of the factum of adoption, it may be regarded as sufficient to shift the burden on the other side to prove that fee adoption did not take place. In such cases of old adoption, a presumption in favour of the validity of the adoption is naturally drawn from the status of the adopted son in the adopting family and its recognition by the members of the family for a number of years. Reference in this connection may fee made to the following authorities wherein due weight has been given to all the inferences and presumptions which may arise from such status of the adopted person and its recognition : Nand Kashore v. Brij Behari, ILR (1954) 4 Raj 822 = (AIR 1955 Raj 65), Mt. Binda Kuer v. Lalita Prasad, AIR 1936 PC 304, Seetharama Chandra Row v. Kanchumarthi Raju. AIR 1925 PC 201, Rajendro Nath v. Jogendro Nath, (1870) 14 Moo Ind. aPP 67 (PC) and Kailash Chandra Nag v. Bejoy Chandra Nag., AIR 1923 Cal 18.
9. The learned; District Judge has relied upon certain documents also in support of his finding on the issue of adoption. The first document is Ex. 1 dated 1-2-1951. It is an application filed by Lax-mart Das before the Patta Court, Jodhpur, along with his affidavit Ex. 2 dated 1-2-51, wherein he stated that Sardar Mal had been taken in adoption by the widow of Ladu Ram in her lifetime and that he being the natural father of Sardar Mal had given the latter in adoption about 40 years ago. Another document Ex. 3 dated 16-11-43 is the statement of Laxman Das, who, as stated earlier, was the real father of Sardar Mal, In this statement also Laxman Das deposed to the fact of his son Sardar Mal having been adopted by Ladu Ram's widow during her lifetime. Ex. 4 dated 30-9-24 is the copy of an order-sheet and Ex. 5 is the copy of the judgment of the Kotwali, Jodhpur, which reveal that the escheat proceedings regarding the property of GORU Ram were started and it was decided that GORU Ram's property was not liable to escheat and that it would go to Sardar Mal as he was the heir of Ladu Ram and Goru Ram was the nearest relative of Ladu Ram. Another document Ex. 7 dated 23-4-1945 is the copy of the objections filed by Moti Lal and Manak Lal appellants. The objections raised were that the disputed shop belonged to their ancestors and not to Ladu Ram. Ex. 8 dated 9-1-1943 is the copy of the statement of Motilal and Ex. 9 is the copy of the deposition of Manak Lal, who stated therein that they were the owners of the shop in dispute. Document Ex. 10 dated 5-5-45 is the copy of the objection petition of Sardar Mal, wherein he claimed to foe an adopted son of Ladu Ram, Ex. 14 is the will made by Goru. Ram on 22-7-1923. Ex. 15 is the letters of administration of this will granted to Sardar Mal. There are recitals in the will that Sardar Mal was taken in adoption by the widow of Ladu Ram and was kept by her as her son. The will was proved by the evidence of Sardar Mal, P.W, 3, and that of attesting witness, namely, Ram Ohandra P.W. 5. The learned District Judge relied upon the recitals in this will relating to the adoption of Sardar Mal
Another document relied upon iby the learned District, Judge is Ex. 23 dated 13-7-1943. which is the statement of Jai Narayan Jajoo, wherein it was stated that Sardar Mal was the adopted son of Mst. Bugi. Similar is the statement Ex. 24 of Kirpa. Krishna, who stated that Sardiar Mal was in possession of the property of Ladu. Ram deceased on account of having been adopted to him and that invitations were issued to Sardar Mal in the community on account of being Ladu Ram's son. The other document relied upon by the learned District Judge is Ex. 12, which is a relinquisment deed executed by Kanhaiyalal son of Ranchor Das in favour of Sardiar Mal. In this document Kanhaiyalal admitted in clear and definite terms that Sardar Mal was adopted to Ladu Ram by Ladu Ram's widow during her lifetime and that Kanhaiya Lal had no right to the properties of Ladu Ram. The learned District Judge admitted this document into evidence because it contained an admission of Kanhaiya Lal from whom the appellants have derived their title in the subject-matter of the suit. According to the learned District Judge, the admission was made by Kanhaiya Lal against his pecuniary interest and, therefore, it was binding on his successors in interest Before me it was objected that the documents were inadmissible in evidence, because the statements made therein relating to the existence of relationship by adoption between Sardar Mal and Ladu Ram were made after the dispute relating to Sardar Mal's adoption had arisen. My attention was invited to Sub-sections (3) and (5) of Section 32 of the Evidence Act, which read as follows:--
'(3) Or against interest of maker.--'When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) ..... ..... ....
(5) Or relates to existence of relationship.--When the statement relates to the existence of any relationship (by blood, marriage or adoption) between persons as to whose relationship (by blood, marriage or adoption) the (person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.'
From a bare reading of Sub-section (5) of Section 32. it appears that declaration of relationship of blood, marriage or adoption must have been made by a person who is dead or who cannot fee found etc. as mentioned in the opening part of the section before the dispute in relation to which they are proved was raised. In K.V. Subiharaju v. C. Subbbaraju (AIR 1968 SC 947) (supra) the Supreme Court also observed that the statement on which reliance is placed must have been made before the question in dispute was raised and that the words 'before the question in issue was raised' do not merely mean before the commencement of the particular legal proceedings in which such a statement is produced in evidence but even before the actual controversy regarding the subject-matter of the declaration has arisen. In this view of the legal position, the aforesaid documents Exs. 1, 2, 3, 4. 5. 7, 8. 9. 10, 14, 15, 23 and 24 were clearly inadmissible in evidence because the dispute relating to the adoption of Sardar Mal had been raised! in escheat proceedings of Ladu Ram's property in the year 1921 vide Missal No. 93/10-6-21 referred to in Ex. 6 and because the statements contained in these documents relating to the factum of adoption of Sardar Mal were made either in the escheat proceedings of Ladu Ram's property or after the existence of such dispute. As regards Ex. 12, it may be observed that it contained statement of Kanhaiya Lal against has pecuniary or proprietary interest in the properly in dispute. Kanhaiya Lal is dead as is evident from file statement of Sardar Mal, Sardar Mal stated in his cross-examination tihat Kanhaiya Lal died about four or five years before he gave his statement in the trial court. In this document Ex. 12, Kainhaiya Lal admitted that the property in dispute belonged to Sardar Mal and that he had no title or interest in it. It will not be out of place to mention that the appellants purchased the rights to redeem the disputed property from Kanhaiya Lal vide registered sale-deed Ex. A-1. The learned District Judge, therefore, committed no error in receiving this document into evidence, under Sub-section (3) of Section 32 of the Evidence Act, although it could not be admitted in evidence under Sub-section (5) of Section 32, because the statement relating to the existence of relationship by adoption between Sardar Mal and Ladu Ram was not made before the question in dispute was raised.
10. The next question that arises for determination is whether even after the exclusion of the aforesaid documentary evidence from consideration there is evidence on the record, which is sufficient in law to support the decision of both the courts below on the issue of Sardar Mal's adoption. I have stated earlier that both the courts below have rightly held upon evidence that Sardar Mal was taken in adoption to Ladu Ram by Mst. Bugi during her lifetime. The oral evidence adduced in support of adoption is sufficient to sustain a finding that Sardar Mal was validly adopted by Ladu Ram's widow after Ladu Ram's death.
11. The learned counsel appearing on behalf of the appellants strenuously urged that as the effect of adoption is to change the course of succession and to transfer properties of the adoptive father to persons who are strangers or remote relations in comparison to the nearest relatives, the evidence led in support of adoption should be such as may leave no room for doubt about its truth. In support of his above proposition he relied upon an authority of the Supreme Court reported as Kishorilal v. Mt. Chaltibai, AIR 1959 SC 504. On the strength of this authority, the learned counsel further contended that the evidence led by Sardar Mal to support his adoption is not free from suspicion. In this connection, he invited my attention to Ex. DW 13-A/1. a registered deed of adoption executed fey the daughters of Ladu Ram and attested by Goru Ram. Belying upon this document, the learned counsel wants to show that Sardar Mal was never adopted by Ladu Ram's wife Mst. Bugi Airing the lifetime of the latter and that he was subsequently taken in adoption by Ladu Ram's daughters who had no authority under the law to take Mm in adoption to their father Ladu Ram deceased. The learned District Judge excluded this deed of adoption from consideration on the ground that this is a copy of a copy of original document which cannot be used as secondary evidence of the original document and that the conditions specified in Section 65 of the Evidence Act for leading secondary evidence were not satisfied. The contention of the learned counsel for the appellants is that the learned District Judge committed an error in not taking this document into consideration. According to him, this document was mentioned in para. No. 2 of the plaint and it was not produced by Sardar Mal or his brother in whose possession it could naturally be. The defendants, therefore, summoned Chand Behari Lal. Record Clerk of the Registration and Stamps Department, Jodhpur, to produce permanent file ibook No. 1-A in which this deed was copied out at the time of its registration by the registering authority. Chand Behari Lal, D.W. 13, stated on oath that Ex. D.W. 13-A/1 is the true copy of the entries made in the registration ibook No, 1 relating to this adoption deed.
12. I have considered the above contention. It may be observed that Sub-section (1) of Section 57 of the Registration Act provides that subject to the provisions of Section 62 copies of entries in Books Nos. 1 and 2 and indexes relating to ibook No. 1 shall be given to all persons applying for such copies. Sub-section (5) further enacts that all copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. In the present case the defendants could not produce a copy of entries made in book No. 1 relating to this adoption deed. The copy produced and exhibited in the case was not signed and sealed by the registering officer. What the defendants did was to get Chand Behari Lal, Records Clerk, Registration and Stamps Department summoned through the court and to get a true copy in book No. 1 of DW 13A/1 produced by him in the court. A copy signed and sealed by the registering officer and given under Section 57 of the Registration Act is no doubt admissible to prove the contents of the original document, but a copy which is not signed and sealed by the registering officer is clearly inadmissible in proof of the contents of the original document. Apart from this, a certified copy of a registered copy is admissible to prove the contents of the original document only when conditions for the introduction of the secondary evidence are fulfilled. It is undoubtedly true that if a certified copy has been admitted into evidence without any objection having been raised by the other party, that no case is made out for the introduction of the secondary evidence, the appellate court would not permit its admissilbility to be questioned before it on that ground. Reference in this connection may be made to Govind Ram v. Abdul Wahab, 1963 Raj LW 453 = (AIR 1963 Raj 234), and Narayan v. Chamber of Commerce Ltd., Kishangarh, 1969 Raj LW 107. From the evidence of Chand Behari Lal, D.W. 13, it does not appear that the certified copy of the entry relating to this adoption-deed in book No. 1 was produced in the court and was got exhibited by the defendants. Document Ex. DW 13-A/1, not being a certified copy under Sub-section (5) of Section 57 of the Registration Act or Section 76 of the Evidence Act was rightly held inadmissible in evidence by the learned District Judge. Even if it is held that this document Ex. DW 13-A/1 is admissible in evidence, it cannot be used in evidence against Sardar Mal. because, the latter was not a party to this deed. From a bare look into this adoption-deed it appears that it was executed by the daughters of Ladu Ram. When this document was produced for registration, the registering .authority made a note on it that Mst. Udi one of the alleged executants presented an application that she had not affixed her thumb impression on it in token of the execution and that the thumb impression put on it was not really her thumto impression and that neither she had any authority to take Sardar Mal an adoption to Ladu Ram, nor had she adopted him to her father. Under these circumstances, the learned District Judge was right in ignoring this piece of documentary evidence.
13. The second contention put forward by the learned counsel for the appellants is that Sardar Mal plaintiff subjected himself to examination on those issues, the tourden of proving which lay on the defendants. After his examination-in-chief was over, he was partly cross-examined by the learned counsel for the defendants on 18th July, 1961. As the court time was over and the cross-examination was not complete, the trial court adjourned the case to the next day for further cross-examination. On the next day Sardar Mal Jajoo did not care to enter into the witness box again and deliberately kept himself away, although relevant record containing his previous contradictory statements on the matter in controversy had been summoned by the defendants for the purpose of contradicting him thereby. The learned counsel for the defendants requested the trial court to compel Sardar Mal's attendance in the court for further cross-examination by resorting to Rules 10, 11 and 12 of Order XVI, C.P.C. The trial court passed an order upon the application of the defendants that tine statement given by Sardar Mal on 18th July, 1961 could not be admissible against the defendants, because the latter fed no full opportunity of testing its truthfulness by cross-examination, and that an adverse inference could be drawn from the failure of the plaintiffs to subject Sardar Mal himself to further cross-examination. The contention of the learned counsel for the appellants before me is that the trial court ought to have enforced the attendance of the plaintiff for the purpose of cross-examination by having recourse to Rules 10, 11 and 12 of Order XVI of the Code of Civil Procedure. In support of his above proposition, the learned counsel invited my attention to Rule 21 of Order XVI. C.P.C. which reads pas follows:--
'Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.'
From a bare reading of the language of this rule it appears that the words 'required to give evidence' used therein clearly indicate that the provisions as to witnesses shall apply to any party to a suit if he is required to give evidence or to produce documents by the other side or by court. But if he voluntarily appears in the witness-box to give evidence in his own favour and deliberately keeps himself away after examination-in-chief and before cross-examination, the provisions as to witnesses cannot be made applicable to him and the court is empowered to procure his attendance by resorting to Rules 10, 11 and 12 of Order XVI, C.P.C. The proper course to be followed by the court in such a case is to reject the testimony of such party, if cross-examination is evaded or deliberately prevented by such party. In this case also the trial court has rejected the statement of Sardar Mal dated 18th July, 1961, by passing an order that his statement would not be admissible in evidence against the defendant. The learned counsel further contended that an adverse inference against Sardar Mal must have been drawn by the courts below for his failure to reappear in the court for further cross-examination. The above contention is devoid of substance in the peculiar circumstances of this case. A presumption should ordinarily be drawn against a party who having a knowledge of the facts in dispute does not subject himself to examination or cross-examination, because non-appearance of a party in witness-box would be a strong circumstance to discredit the truth of his case, but the presumption does not apply when the plaintiff has already appeared in witness-box and has given evidence in the case on issues the burden of which lay upon him.
Sardar Mal submitted himself to exa-mination-in-proof of the issues including the issue of adoption, the burden to prove which lay upon him. He was. cross-examined at length by the defendants. He again appeared in the witness-box to rebut the evidence led by the defendants on the issues, the onus to prove which lay on the defendants. When his examination-in-chief was over, he was partly cross-examined on 18th July, 1961 and as the case was adjourned to the next day, he evaded further cross-examination. At the most it could be said that his subsequent statement given in rebuttal of the issues, the burden to prove which lay on the defendants, could not be held admissible in evidence against the defendants. An adverse inference may be drawn against him to the extent that he could not rebut the evidence adduced by the defendants on the issues which they were required to prove. It does not mean that his former statement on the issues, on which he was required to lead evidence in the first instance, should also be rejected on the ground that he did not submit himself to further cross-examination after his subsequent examination-in-chief was over. Consequently, I have no hesitation in holding that both the courts below rightly held that the evidence produced in support of the adoption of Sardar Mal is highly satisfactory and free from all suspicion or fraud and that no interference with the findings of the courts below is justified on any reasonable score.
14. Next it has been contended on behalf of the appellants that even if adoption of Sardar Mal to Ladu Ram deceased is taken to be proved, it does not confer any right on Sardar Mal to redeem the disputed property belonging to Ladu Ram, deceased. In support of his above contention, the learned counsel invited my attention to the will Ex. DW5/1, which was alleged to have been executed by Ladu Ram during his lifetime. It is argued by the learned counsel that by this will Ladu Ram bequeathed his properties in dispute to his son Ranchor Das, who had already gone in adoption to some other family at Laskar Gwalior. According to the learned counsel the properties under the will vested in Ranchor Das on the death of the testator and that Ladu Ram's widow got a limited interest only in the properties of her husband and that even if she adopted Sardar Mal to his deceased husband, the latter could not legally question the disposition of such property by Ranchor Das's son Kanhaiya Lal in favour of the defendants. The learned counsel appearing on behalf of the defendants, on the other hand, contended that the will .produced by the defendants' witness (D.W. 5) is not a genuine will and that it has not been duly proved by the defendants. He further submitted that even if this will is proved to have been executed by Ladu Ram in favour of Ranchor Das, it being a joint will made by him and his wife was revoked by his widow Mst. Bugi during her lifetime. Alternatively, it was pleaded that this will if taken to be proved, further stands revoked by Sardar Mal's adoption to Ladxi Ram, because the properties under the will did not vest in Rancher Das on the death of one of the testators and because the will was a contingent one in the sense that it was to take effect on the non-happening of some uncertain event, i.e. it was to take effect only if Ladu Ram's another son Narayan Das, who had gone away from the family, did not return to the family, I have given my anxious consideration to the rival contentions.
15. The first question which arises for decision is whether the will said to have been executed by Ladu Ram and his wife Mst. Bugi is or is not a genuine will and whether the formalities required by law for the execution of a valid will were observed. The will Ex. DW5/1 was executed by Ladu Ram and Mst. Bugi on 25th January, 1896. From a bare look into the will it appears that it was signed by Ladu Ram. Mst. Bugi affixed a mark thereon in token of its execution by her. It was attested by Vaid Chunni Lal, Mathura Das, Sankhlecha Hira Chand, Mundra Baldeo Das and Megh Raj. The scribe of the will was Jagan Nath. It is evident from the endorsement on this will itself that it was presented for the first time on 17th December, 1923, before Kotwal, Jodhpur City, to be placed on the record of Patta proceedings initiated at the instance of Sardar Mal Jajoo and thereafter it was produced before the registering authority on 29th March, 1936, in connection with files Nos. 36 and 37 pending in the Registration Department of the then Jodhpur State. A copy of this will was kept with the file of the said Department. Again, it was produced in a case instituted by Jai Kishan (plaintiff) against Sardar Mal for possession of the disputed house. In that suit also a copy of this will was kept on record. In the present suit D.W. 5 Jai Kishan was summoned at the instance of the defendant to give evidence and to produce this will in the court. D.W. 5 Jai Kishan came into possession of this will at the time when the disputed property of Ladu Ram was sold away to him by Kanhaiya Lal in whose father's name Ladu Ram and Mst. Bugi had made this will and who claimed to be the owner oi the shop in dispute under the will after the death of his father Ranchor Das. All the attesting witnesses and the scribe of this will were dead when the defendants were required to prove this will. The defendants, however, produced Dau Das, D.W. 6, whose father Mathura Das was one of the attestors of the will. He identified the signatures of his father on the will as he claimed to have been acquainted with them.
Another witness produced by the defendants is Jai Narayan, D.W. 8, who stated in his deposition that the will Ex. DW5/1 is in the handwriting of his maternal grand-father Jagan Nath who used to live in the house of Ladu Ram testator. Likewise, D.W. 9 Jagan Nath identified the signatures marked C to D on the will Ex. DW5/1 to be the signatures of his father Chunni Lal as he was well acquainted with them. This will is a document more than 30 years old. It is produced from the custody of D.W. 5 Jai Kishan, which is a proper custody as it is proved to have had a legitimate origin. Ex facie, this will appears to have been duly executed and properly attested end. is on its face free from any suspicion of fraud. It may, therefore, safely be presumed under the express provisions of Section 90 of the Evidence Act that it had been signed and written by a person whose signatures it bears and in whose handwriting it purports to be and that it was duly executed and attested by the persons by whom it purports to be executed and attested. The will being more than 30 years old and produced from proper custody may be presumed to have been duly executed by the testator when he was in a sound disposing state of mind. Reference in this connection may be made to the following authorities wherein presumption in favour of the disposing power of the testator was made under Section 90 of the Evidence Act : Dhanna Pal v. Govinda Raja. AIR 1961 Mad 262, Munnalal v. Kashibai, AIR 1947 PC 15 and Venkata Rama Rao v. Bhaskararao, AIR 1962 Andh Pra 29. The learned Additional Civil Judge, to whom additional issue No. 1 was referred by this Court for taking additional evidence thereon, gave a finding that the will was executed by Ladu Ram end Mst. Bugi while they were in a sound disposing state of mind. The learned Additional Civil Judge has assigned reasons therefor and I absolutely see no reason to take a different view.
16. It was contended on behalf of the respondents that there is no reliable proof on the record that all the formalities required by law under Section 63 of the Indian Succession Act to be observed in execution and attestation of a will had been properly observed in this case and that in the absence of any such proof, this will cannot be presumed to have been duly executed and attested. The above contention is not acceptable, because no retrospective effect can be given to the Indian Succession Act of 1925 which does not apply to a will executed before it came into operation. The will was executed on 25th January, 1896, in the former State of Marwar in respect of immovable properties situated at Jodhpur (outside the jurisdiction of the Hindu Wills Act, 1865). Section 50 of the Indian Succession Act, 1865, corresponding to Section 63 of the Indian Succession Act, 1925, did not apply to such a will as it was not in force in the former State of Marwar. Consequently, the will cannot be brushed aside on the ground that the formalities required to be observed under Section 63 of the Indian Succession Act in respect of execution and attestation of a will had not been properly observed.
17. Another ground on which this will is subjected to sharp criticism by the learned counsel for the respondents is that this will being executed by Ladu Ram and his wife is a joint will, which was made to take effect after the death of both the testators and that such a will was revocable at any time by either of them or by the survivor. It was further urged that as Mst. Bugi, one of the testators, had revoked the will during her lifetime, the properties under the will, could not legally vest in Ranchor Das after the death of Bugi. The above contention can easily be repelled, because the will is not a joint will made by two or more testators. In Halsburv's Laws of England (Hailsham's Edition, Vol. 34, p. 17, para. 12), relied upon by the Supreme Court in K. Govindan v. T.T. Lakshmi Amma, AIR 1959 SC 71. joint will is described as follows:--
'A joint will is a will made by two or more testators contained in a single document duly executed by each testator disposing either of their separate properties or of their joint properties. It is not, however, recognised in the English law as a single will. It operates on the death of each testator as his will disposing of his own separate property and is in effect two or more wills.'
It can, therefore, hardly be a matter for doubt or dispute that a will becomes a joint will only if it is made by two or more testators in a single document duly executed by each of them disposing of either their separate properties or their joint properties in the instant case the properties willed away were ancestral properties of Ladu Ram, to which Mst. Bugi had no right during the lifetime of her husband. The words used in the will
^^---- ft.klqekjh tk;xk A ckiksrh us nqdku A ckiksrh gS] rh.kjk ekyd eksus lks cjl iqxks iNsaFks gks nwljk jks nkoks gS ugha A^^
give a clear indication that the house and the shop willed away were ancestral properties of Ladu Ram. While describing the properties in the will, it was further mentioned as follows:--
---- foxr tk;nkn xSj eudqykeks:lh gS rh.kjk ekyd Fks gks nwljks nkok ugh A
tk;xk A ckiksrh jks iqaxyikMs esaeqUnMk jks xyh esa fn[k.kkn [kMdh jks mpk ckj.kk jh vcksj oh e.kh;kMh gS fr.kjkekyd Fks Nks A
nqdku A iqa?kyikMs js ukdk lsctkj js ukds ?kj lq tkorks Mkch cktw gS lks nqdku vckj Fkh l.kh;ksMh nq[kaMh gSrh.kjk ekyd Fks Nks A
xj Hkhdjh tsoj ckl.k oxSj ysu nsujk ekyd Fks Nks] nqtk jks nkcks uh A
bZ.k Hkkr tk;nkr ek:lh xSj eudwykok eudqyk gS ijarq b.k tk;nkr ij b.k eqtc lq ns.kks gS lq Fks ns lks us dkxnnLrkvot Fks mnk ys lks**
The referred to above recitals in the will do not reveal that any of the properties willed away stood in the name of Mst. Bugi or were acquired by her with her Stridhan money or belonged to her or were joint properties of her and her husband. There is no material on the record to prove that she disposed of her own separate or joint property by way of this will. Hence the will not being a joint will may be construed as a will made by Ladu Ram only in respect of his ancestral properties mentioned therein. It is no doubt true that Mst. Bugi could dispose of by will her separate or Stridhan properties. In the ancestral property of Ladu Ram she was entitled to a life interest only after the death of her husband, which she could not alienate by her own act during her own lifetime. A perusal of the document makes it clear that Mst. Bugi was only given a life interest in the properties and absolute interest was given to R anchor Das. the words
^^rh.kjkekyd eksus lks cjl iqxk iNs Fks gks] nqljks jks nkcks gS ugh A**
may be construed as making a reference only to the period of determination of life interest given to Mst. Bugi, or the postponement of possession of the thing bequeathed. They do not indicate an intention on the part of Ladu Ram testator to postpone or suspend the operation of the bequest made in favour of Ranchor Das till the death of his widow. Reference in this connection may be made to Section 119 of the Indian Succession Act, which reads as follows:--
'Date of vesting of legacy when payment or possession postponed.-
Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed a right to receive it at the proper time shall, unless a contrary intention appears by the wall become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.
Explanation.--An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that, if a particular event shall happen the legacy shall go over to another person.'
Ranchor Das, in my opinion, took a vested interest in the property, subject to the life interest given to Mst. Bugi. A vested interest is not even defeated by the death of the devisee before he obtains possession and his representatives will be entitled to its benefit. In the instant case Ranchor Das died after the death of Bugi. Hence his representative Kanhaiya Lal was entitled to the bequest made in his favour by Ladu Ram testator vide : Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703 and Sri Ram v. Abdul Rahim Khan, AIR 1938 Oudh 69.
18. Apart from this, there is no proof that this will was revoked by Ladu Ram during his lifetime by express declaration either oral or written. It is alleged by the respondents that this will was revoked by Mst. Bugi during her lifetime. As stated earlier, the will toeing not a joint will, and the properties disposed of under it being ancestral, to which Mst. Bugi had no right during the lifetime of her husband, this will became irrevocable after the death of Ladu Ram testator. Even if it is presumed to Ibe a joint will, it did not remain revoked after the death of one of the testators, i.e. Ladu Ram because the survivor, i.e. Mst. Bugi took advantage of the provisions made by her husband and received benefits under the will. Hence even if it is taken to be true that Mst. Bugi had revoked the will during her lifetime, such revocation was not valid in the eye of law. The respondents could not produce or cause to be produced any will made by Bugi alone in favour of Ranchor Das, although it was argued before me that a will was executed in favour of Ranchor Das by Mst. Bugi during her lifetime and it was subsequently revoked by her. As there is no reliable evidence to substantiate the above plea taken by the respondents, I feel persuaded to hold upon evidence that no other will except the will Ex. DW5/1 was executed by Ladu Ram and Mst. Bugi.
19. The learned counsel for the respondents, however, contended that even if it is taken to be proved that Ladu Ram willed away the properties referred to in his will to his son. Ranchor Das, who had gone in adoption to some other family and that after the death of Ranchor Das his son Kanhaiya Lal became full-fledged owner thereof, the plaintiffs' right to redeem the property in question is not lost, because Kanhaiya Lal relinquished his right or interest, if any, in the disputed property in favour of Sardar Mal by way of a registered deed of relinquishment Ex. 12 dated 2nd July, 1936. In support of his above proposition, the learned counsel invited my attention to the following words used in Ex. 12 by its executant:--
^^vc eSafcuk fdlh ncko ds uht viuh [kqn dq'kh gksl gokl nq:Lrh ds lkFk cxSj uls iqT;nknhth ds vk[kjh ejth ds ekQd ;g rgjhj ljnkj ey th tktw ds gd esa fy[kdj Qkjxrhdj nsrk gw fd thldh ekyh;r djhc :- 3000 gtkj gS esjk oks esjh vkSykn okjlksdk gd vkt rd ugha gS vkSj ugh gksxk vkSj vki tktw yknwjke th oks xks:jke th dht;nkn okds lgj tks/kiwj vkSj ikyh ds edkukr nqdkukr ij ckdk;nk ekyhd oks dkchtgks thlh rgjs ges'kk cus jgksxs eSaus viuk gd dqy rjd dj fn;k gS fygktk ;gfy[kkoV rqe ljnkjey th dks fy[k nh lks lgh gS vkSj oDr t:jr ds lun jgs A**
According to the learned counsel, these words are indicative of an intention on the part of the executant of the deed of relinquishment to bring about a definite change of legal relation to the property. In this document the executant declared that he and has heirs would henceforth have no title, right or interest in the properties willed away by Ladu Ram to his father and that Sardar Mal would have full rights of ownership therein. According to the learned counsel, this deed extinguished the right, title or interest vested in Kanhaiya Lal and purported to create right, title or interest in Sardar Mal. It does not contain a mere statement of a fact that the properties belonged to Sardar Mal, but it is a document in which the executant relinquished his right, title or interest in the properties of Ladu Ram in favour of Sardar Mal. The learned counsel appearing on behalf of the appellants has assailed this document on various grounds. His first contention is that this document was presented for registration in the office of Sub-Registrar, Pali, within whose Sub-District the entire property or some portion thereof, to which this document relates, was not situated. In support of his above contention, he invited my attention to the provisions of Section 28 of the Marwar Registration Act, which corresponds to the provisions contained in Section 28 of the Indian Registration Act. According to his submission, this section provided that if no part of the property, to which document Ex. 12 relates, was situated within the Sub-District where it was registered, the registration is void. In this connection, he referred to the following authorities : Harendra Lal v. Haridasi Debi, AIR 1914 PC 67 and Collector, Gorakhpur v. Ram Sundar, AIR 1934 PC 157 wherein registration was held void on the ground that the document was registered at a place in which no part of the immovable property, which was subject-matter of the property, was situated. The above contention is not devoid of any substance. From a bare perusal of the contents of the relinquishment deed Ex. 12 it appears that it relates to those properties of Ladu Ram, which were willed away by Ladu Ram to the executant's father Ranchor Das. Kanhaiya Lal could relinquish his right, title or interest in those properties of Ladu Ram only which his father Ranchor Das had got under the will. Those properties mentioned in the will of Ladu Ram are situated in Jodhpur City. Hence the document Ex. 12 should have ibeen presented for registration in the office of Sub-Registrar at Jodhpur within whose Sub-District his properties, to which such document related, were situated. As this document was registered at a place where no part of those immovable properties, which were the subject-matter of the document, were situated, the registration was void. The contention of the learned counsel for the respondents that the document Ex. 12 related to the entire properties of Ladu Ram including his property at Pali is not acceptable, because under the will of Ladu Ram, Ranchor Das and, after his death, his son Kanhaiya Lal were not entitled to claim any right, title or interest in the other properties of Ladu Ram. The learned counsel for the appellants prayed to this Court by way of an application that additional evidence may be taken under Order 41, Rule 27, C.P.C. to the effect that Ladu Ram had properties at Pali also. Along with his application, he has produced certain documents to show that in reality Ladu Ram owned and possessed immovable properties at Pali. These documents were not produced in the trial court or before the first appellate court by the plaintiff. He cannot be permitted to adduce additional evidence on this point at this belated stage to fill up the gaps or lacunae in his evidence on issues Nos. 7 to 10. It cannot be said that he is taken by surprise. He knew it well that the defendants have raised an objection in their written statements that the document Ex. 12 relied upon iby him was void on account of having been registered in the office of the Sub-Registrar, Pali, within whose Sub-District whole or some portion of the property, to which this document relates, was not situated. The prayer of the learned counsel for the appellants for allowing him to produce additional evidence on this point is rejected.
20. The learned counsel for the appellants further contended that the trial court rightly held that Kanhaiya Lal did not relinquish his title, right or interest in the property of Ladu Ram by this deed Ex. 12. According to his submission, it is a document in which the executant declared that Mst. Bugi had taken Sardar Mal in adoption with the concurrence of Ranchor Das and Goru Ram and that Mst. Bugi revoked her will dated 25th January, 1896 (corresponding to Magh Sudi 10 Samvat-year 1952), which was executed in favour of Ranchor Das and that while going to Laskar she instructed her daughters to execute a deed of formal adoption in favour of Sardar Mal in case she died at Laskar, because she had already adopted Sardar Mal, to her husband and that Sardar Mal had been in possession of Ladu Ram's property being his adopted son and that Kanhaiya Lal had no right to the property of Ladu Ram and that Sardar Mal would continue to own the properties of Ladu Ram as hereinto-before. The above contention has some force. The document, in my opinion, does not cause a change of legal relation to the property. It contains a mere statement of fact that Sardar Mal had ibeen adopted by Mst. Bugi to her husband and that he had been in possession of the properties of Ladu Ram, to which Kanhaiya Lal and his heirs had no right, title or interest. The trial court rightly held that it required no registration because it did not purport or operate to extinguish whether in present or in future any right, title or interest in the property of Ladu Ram. Hence it cannot be said that by this deed Kanhaiya Lal relinquished his right, title or interest in those properties of Ladu Ram which were bequeathed to his father Ranchor Das.
21. Another contention put forward by the learned counsel for the appellants is that after Ladu Ram's death, the disputed property vested in Ranchor Das under the will and that the subsequent adoption of Sardar Mal, if taken to be proved, bad no effect of divesting the estate in the hands of Rancher Das. In support of his asbove contention, the learned counsel placed reliance on Krishna Murthi v. Krishna Murthi, AIR 1927 PC 139, Jivaji Annaji v. Hanmant Ramchandra, AIR 1950 Bom 360 (FB) and Udhao Sambh v. Bhaskar Jaikriskna, AIR 1946 Nag 203. The learned counsel for the respondents, on the other hand, urged that the rights of Sardar Mal being adopted son of Ladu Ram relate back to the date of Ladu Ram's death and by a legal fiction Sardar Mal must be deemed to have been in existence as the son of Ladu Ram at the time of latter's death. He further submitted that since the will executed by Ladu Ram. operated from the date of his death and since the rights of the adopted son related back to the date of the adoptive father's death, the will so far as it dealt with the disputed coparcenary property was inoperative and the property passed to the adopted son by survivorship. In support of his above proposition, he referred me to Venkatanarayana v. Subbammal. AIR 1915 PC 37, Srinivas v. Narayan, AIR 1954 SC 379, Raghunath v. Ganesh, AIR 1964 SC 234 and Shripad v. Dattaram, AIR 1974 SC 873.
22. I have perused all the authorities cited by the learned counsel for the parties. In the present case Ladu Ram was the sole surviving coparcener. He was entitled to dispose of or bequeath the joint family property as if it was his separate property. It is proved that he made a will of the disputed ancestral properties in favour of his son Ranchor Das, who had gone in adoption to some other family at Laskar (Gwalior) during the testator's lifetime. The pertinent question that arises for consideration is whether Sardar Mal, who was subsequently adopted by the testator's widow Mst. Bugi after his death, could divest the devisee of the property given to him by the will. There is an authority of the Supreme Court--Srinivas v. Narayan, AIR 1954 SC 379 (supra) for the proposition that the adopted son is entitled to take the interest of the adoptive father as on the date of his death. This principle of relation back is based on a legal fiction that there should be no gap or break in the continuance of the line of the adoptive father. In para. 17 of the referred-to-above decision, their Lordships of the Supreme Court observed as follows after a review of the several cases on this point:--
'Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but of a collateral. The theory on which this doctrine is based is that there should be no hiatus in the continuity of the line of the adoptive father. That, by its very nature, can apply only to him and not to his collaterals.'
The theory of relation back is, however, subject to certain exceptions. One of the limitations is that if the property by inheritance passes to a collateral and the adopted son is adopted after the death of the collateral, the adoption cannot divest the estate of the collateral which had gone to his heir by inheritance. Their Lordships of the Supreme Court approved the view of the Full Bench of the Bombay High Court in Jivaji Annaji v. Hanumant Ramchandra (AIR 1950 Bom 360 (FB)) (supra) on this point and dissented from the contrary view taken by the Privy Council in Anant Bhikappa v. Shankar Ramchandra, AIR 1943 PC 196. This question again came up for reconsideration before the Supreme Court in Krishnamurthi v. Dhruwaraj. AIR 1932 SC 59. Their Lordships of the Supreme Court summarised the principles deducible from their decision in Shrinivas v. Narayan (AIR 1954 SC 379) (supra) and held as follows:--
'It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasance of the absolute title by a widow of the family of the Last surviving coparcener adding a member to the coparcenary by adopting a son to her deceased husband and in overlooking what was stated in this connection fey this Court in Srinivas Krishnarao Kango's case, 1955-1 SCR 1 = (AIR 1954 SC 379), (sic) though not as a decision, but as a reasoning to come to a decision in that case.'
Another exception to which the principle of relation back is subject is that the adopted son would be bound by any lawful alienation effected by a male or female heir after the death of the adoptive father and before the date of adoption. In the present case the disputed properties owned by Ladu Ham were ancestral. In the will itself it was stated by Ladu Ram, testator in clear and definite terms that the property which he wag going to bequeath were 'Bapoti' ancestral in his hands. The words ^^tk;xk A ckiksrh us nqdku ,d ckiksrh** indicate that the properties descended upon Ladu Ram in such a manner that his natural or adopted son acquired certain rights in it as against him. As the properties were inherited by Ladu Ram as unobstructed properties, his male issue, if he had any in his lifetime, would have acquired an interest in such properties from the moment of his birth and would have become a coparcener with his father Ladu Ram as soon as he was born. What happened in the instant case was that Ladu Ram died having no male issue el the time of his death. After his death, his widow Mst. Bugi validly adopted a son, namely, Sardar Mal to him. The effect of the subsequent adoption was that the right of the adopted son related back to the date of his adoptive father Ladu Ram's death and the adopted son must be deemed, by a legal fiction, to have been in existence as the son of Ladu Ram at the time of latter's death.
On the principle of relation back, the adopted son became entitled to claim a coparcenary interest in the ancestral properties of Ladu Ram as if they were still joint. The contention of the learned counsel for the appellants that after the death of the sole surviving coparcener, the coparcenary came to an end is not acceptable, because a son was subsequently adopted to Ladu Ram by his widow and because such an adoption created a coparcenary interest in the ancestral properties of Ladu Ram by a legal fiction of relation back of the rights of the adopted son. Consequently, I am of the view that when Ladu Ram, who was the sole surviving coparcener governed by Mitakshara law died and his widow Mst. Bugi validly adopted a son to him after his death, a coparcenary interest in the ancestral property was immediately created by an adoption on the basis of the principle of relation back and such interest was co-extensive with that which Ladu Ram had at the tune of his death, and that the adopted son became entitled to the estate of his adoptive father in the hands of Ranchor Das to whom it was willed away by Ladu Ram.
The authority of the Nagpur High Court Udhao Sambha v. Bhaskar Jaikrishna (AIR 1946 Nag 203) (supra) relied upon by the learned counsel for the appellants is distinguishable on facts because the facts in that case were that a last surviving male member of a joint Hindu family bequeathed the family property by will and after his death, the widow of another coparcener adopted a son. The question that arose before Hon'ble Bose, J. in the referred-to-above case was whether the adoption displaced the will and the legacies wMch vested on the testator's death in 1931. Hon'ble Bpse J., who decided the case, was of the view that the adopted son could not deprive the legatees of the properties which were bequeathed to them by Narayan. In the present case the widow of another coparcenary has not adopted a son after the death of the last surviving male member of the joint Hindu family. In Shrinivas v. Narayan (AIR 1954 SC 379) (supra) their Lordships clearly held that the relation back of the right of the adopted son is only quoad of the estate of the adoptive father and that this legal fiction cannot be extended so as to lead to unjust results. The will in the present case operated from the date of Ladu Ram testator's death. In my humble opinion, the will, in so far as it related to the coparcenary property, was inoperative, because a coparcenary subsequently came into existence by a legal fiction of relation back after the death of Ladu Ram on account of a son being validly adopted to Ladu Ram by his widow Mst Bugi after his death. In such a case, the properties of Ladu Ram passed to the adopted son by survivorship and they could not pass to Ranchor Das under a will of Ladu Ram.
23. The result of the above discussion is that Ranchor Das was not entitled to the properties given to him by the will and that Sardar Mal, being validly adopted by Mst. Bugi, was entitled to claim the disputed properties as on the death of the adoptive father by reason of the principle of relation back.
24. Sardar Mal based his claim to the disputed properties of Ladu Ram on the basis of a will Ex. 14 which was executed in his favour by one Goru Ram on Asadh Sudi 9 Smvt. year 1979. By this will, Goru Ram bequeathed the disputed properties to Sardar Mal who, after the testator's death, obtained letters of administration concerning this will from the court of the District Judge, Jodhpur, on 31-7-1951. It was alleged by Sardar Mal that Goru Ram was the nearest reversioner of Ladu Ram and that if his adoption to Ladu Ram is not considered to be a valid one, he is entitled to get the properties of Ladu Ram because they were willed away to Mm by the nearest re-versioner Goru Ram. As I have already held that Sardar Mal was validly adopted to Ladu Ram, it is not necessary for me to examine the alternative basis of Sardar Mal's claim to the disputed properties of Ladu Ram. There is ,an admission in the will Ex. 14 itself that Mst. Bugi took Sardar Mal in adaption. In view of this admission, it is difficult to hold that Goru Ram succeeded to the estate of Ladu Ram after the latter's death as his nearest reversioner.
25. Sardar Mal has filed a cross-objection that future mesne profits ought to have been awarded to him by the learned District Judge, Jodhpur, on account of the failure of the appellants to deliver possession of the disputed properties to him after the final decree in the redemption suit. The learned District Judge disallowed the claim of Sardar Mal for future mesne profits on the following ground, which is quoted in his own words:--
'Since a very serious and complicated question of adoption of Sardar Mal is involved in the matter and the mortgagees contested the validity of the adoption in a bona fide manner, as has been observed by the trial Judge, I am not prepared to grant future mesne profit with effect from the date of this judgment.'
The relief of future mesne profits is a discretionary one and in suitable cases it is open to the court to refuse to exercise this discretion. In the present case, it cannot be said that the learned District Judge has exercised the discretion arbitrarily or in a wrong manner. The reason given by him for disallowing future mesne profits appears to be correct in the circumstances of the case. The cross-objection is, therefore, liable to be dismissed.
26. The result of the above discussion is that the appeal filed by Motilal and others fails and is hereby dismissed with costs. The cross-objection also has no force and is hereby dismissed.