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Mst. Asa Bai Vs. Prabhulal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 56 of 1951
Judge
Reported inAIR1960Raj304
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 11; Limitation Act, 1908 - Schedule - Article 144
AppellantMst. Asa Bai
RespondentPrabhulal and ors.
Appellant Advocate G.C. Kasliwal, Adv.
Respondent Advocate P.C. Bhandari, Adv.
DispositionAppeal dismissed
Cases Referred and Haridas Chatterjee v. Manmatha Nath
Excerpt:
- - chand kanwar brought a suit for possession of the house in dispute on 13-7-1935. this suit was decreed by the trial court on the 27th november, 1937. consequently, the said khairatilal obtained possession of the suit house through court on the 12th december, 1937. prabhulal appealed to the chief court of the then state of jaipur but without success. the contention of the learned advocate general appearing for the plaintiff was that adoption among jains was a secular affair and that it was a matter of contract between the adoptive parent and the adopted son, or, where he was a minor, his natural guardian, and that it was hardly usual at an adoption among jains that the ceremony of giving and taking need take place, 7. now it is well established that adoption among jains is not a.....modi, j.1. this is a regular first appeal by the plaintiff mst. asa bai against the judgment of the learned district judge, dated 12-7-i951, dismissing the plaintiffs suit for; possession of certain immovable property. the following pedigree table will be found helpful in understanding the contentions between the parties: rajmal (died on 29-12-1917) __________|_______________ | | panna kanwar bai mst. jarao kanwar (first wife (second wife) __________|__________ died on 4-1-1928) | | | mst. chandan bai mst. asa bai _________|__________ (dead) (plaitiff) | | chandkanwar pabhu lal (died on 14-8-28) (alleged to | be adopted kapoorchand deft.1) | khalrati lal alias dharamchand (deft.2)the dispute between the parties relates to a house situate in pitaliyan chowkri visheshwarji in the city.....
Judgment:

Modi, J.

1. This is a regular first appeal by the plaintiff Mst. Asa Bai against the judgment of the learned District Judge, dated 12-7-I951, dismissing the plaintiffs suit for; possession of certain immovable property. The following pedigree table will be found helpful in understanding the contentions between the parties:

RAJMAL

(Died on 29-12-1917)

__________|_______________

| |

Panna Kanwar Bai Mst. Jarao Kanwar

(First wife (Second wife)

__________|__________ Died on 4-1-1928)

| | |

Mst. Chandan Bai Mst. Asa bai _________|__________

(Dead) (Plaitiff) | |

Chandkanwar Pabhu Lal

(Died on 14-8-28) (alleged to

| be adopted

Kapoorchand deft.1)

|

Khalrati Lal

alias

Dharamchand

(deft.2)

The dispute between the parties relates to a house situate in Pitaliyan Chowkri Visheshwarji in the city of Jaipur, the boundaries of which have been described at the foot of the plaint.

2. The case of the plaintiff Mst. Asa Bai, daughter or Rajmal, according to the amended plaint, is that Rajmal was survived by his widow Mst. Jarao Kunwar and two of his daughters, the plaintiff and Mst. Chandkanwar, and it is not clear from the record when Mst. Chandan Bai, the third daughter of Rajmal had died; but we are not concerned with her. Mst. Jarao Kanwar succeeded her husband as his sole heir. She died on 4-1-1928. And before her death, she had allegedly adopted defendant No. 1 Prabbulal to her husband by an adoption deed Ex. A-1 dated the Baisakh Sudi 3 Smt. 1976 (corresponding to the 2nd May, 1919).

But the plaintiffs case is that Mst. Jarao (her mother) had cancelled the same by a registered deed Ex. 19 dated 11-2-1923. It is alleged that Mst. Jarao Kanwar remained in possession of the disputed house during her life-time, and after her death Mst. Chand Kanwar the plaintiff's sister came into possession thereof. It is not in dispute that the latter also died on 14-8-1,928, leaving behind her an only minor son Khairatilal alias Dharamchand to whom we shall refer hereafter as Khairatilal, who has been impleaded as defendant No. 2 in this suit. The case of the plaintiff is that the defendant No. 1 Prabhulal assumed unlawful possession of the suit house as adopted son of Rajmal but he no longer occupied that status as his adoption had been cancelled by Mst. Jarao Kanwar, widow of Rajmal, and, therefore, he had no right whatever to it.

It may be mentioned here that there was considerable litigation between Mst. Jarao Kanwar and Prabhulal, and it is in evidence that a number of suits were filed by them against each other but nothing decisive came out of this litigation so far as Prabhulal's status as the adopted son of Rajmal was concerned. Reference may be made in this connection to Ex. 8 which is a copy of the judgment o{ the Chief Court of the then State of Jaipur, dated 24-12-1925, from which it appears that Prabhu Lal was allowed to withdraw his suits against. Mst. Jarao Kanwar seeking a declaration as to his adoption to the deceased Rajmal and praying for the setting aside of the cancellation deed thereof with liberty to bring other suits in future.

It is clear enough that Prabhulal remained in possession of the suit house even after the alleged cancellation of his adoption and certainly after the death of Mst. Jarao Kanwar or Mst. Chandkanwar who both died in 1928 as already stated above. Thereafter, defendant No. 2 Khairati Lal son of Mst. Chand Kanwar brought a suit for possession of the house in dispute on 13-7-1935.

This suit was decreed by the trial court on the 27th November, 1937. Consequently, the said Khairatilal obtained possession of the suit house through court on the 12th December, 1937. Prabhulal appealed to the Chief Court of the then State of Jaipur but without success. Thereafter he appealed to the Judicial Committee of the same State by which the appeal was allowed on the ground that Khairatilal had no right to bring the suit in the presence of Rajmal's daughter Mst. Asa Bai, the present plaintiff, who was a nearer heir to the deceased. In the result, possession of the house in question was restored to Prabhulal on the 22nd May, 1946.

It is against this background that the plaintiff brought the present suit on the 20th November, 1946, on the ground that she was the only lawful heir of the deceased Rajmal and was, therefore, entitled to the possession of the property in suit. Defendant No. 2 Khairatilal was impleaded as a pro forma defendant in this suit and no relief is claimed against him. Defendant No. 3 Mishrimal is the person who was in actual possession of the suit property at the date of the suit. The case of the plaintiff is that Prabhulal had sold the suit house to this defendant by a collusive sale-deed dated the 19th June, 1946, as a sort of 'peshbandi' against the plaintiff's suit.

If Mst. Asa Bai is entitled to the suit property as the only heir of the deceased Rajmal, it should inevitably follow that Prabhulal had no right to sell it and defendant No. 3 Mishrimal could not acquire any lawful title with respect to it in that case. It is also alleged by the plaintiff that in Khairatilal's suit against Prabhulal, the latter in para 18 of his written statement dated the 14th October, 1935, had acknowledged the right of the plaintiff, and, consequently, the present suit was. within limitation.

3. Both defendants Prabhulal and Misrimal resisted the suit, and their defence is common. Their case is that Prabhulal had been adopted in 1919 by Mst. Jarao Kanwar after her husband Rajmal's death and was the only lawful heir of Rajmal by virtue of this adoption. It was further contended that the defendants were not aware of any cancellation of the adoption by Mst. Jarao Kanwar, and even if she had done anything of the kind she could not legally do so and the adoption stood intact. It was also pleaded by Prabhulal that he had never acknowledged the right of the plaintiff Asa Bai in Khairatilal's suit against him, as he had throughout pleaded that he was the only lawful heir to the estate of the deceased Rajmal having been adopted to him by his widow, and that all that he had said was that, in any view of the matter, Asa Bai being the daughter of Rajmal was a nearer heir than Khairatilal plaintiff in that suit, and, therefore, the latter had no right to bring the suit for possession of the house in question.

Lastly, it was contended that the defendant Prabhulal was in exclusive and hostile possession of the suit property from tbe 4th January, 1928, onwards (that being the date of the death of Mst. Jarao Kanwar), and that the possession of defendant No. 2 Khairatilal from the 12th December, 1937, to the 21st May, 1946, during which period the possession of Prabhulal stood taken away from him on account of the decree of the trial court in Khairatilal's suit, could not arrest the adverse nature of Prabhulal's possession over the suit house, once the possession thereof was handed over to him back in execution as a result of the decision of the Judicial Committee of the former Jaipur State, and, therefore, even if the question of adoption were to be left alone, the defendant had perfected his title over the disputed property by 12 years' adverse possession against the plaintiff or any other heir of the deceased Rajmal. Consequently, the defendants prayed that the plaintiff's suit deserved to be dismissed.

4. The learned District Judge dismissed the plaintiff's suit. His findings, briefly put, were thai Prabhulal was validly adopted by Mst. Jarao Kanwar to her deceased husband Rajmal and that it had been proved that a giving and taking ceremony had taken place in relation thereto, and, further, that the alleged Subsequent cancellation of the adoption by Jarao Kanwar was of no effect in law, and, therefore, did not affect his status as Rajmal's adopted son.

The learned Judge also found that Prabhulal had come in possession of the suit property, at any rate, in August, 1928, on the death of Chandkanwar and he remained in possession thereof uptil 22nd December, 1937, when his possession was taken over and delivered to Khairatilal as a result of the trial court having decreed the latter's suit on the 27th November, 1937, but that decree was reversed and the property was restored to Prabhulal on the 22nd May, 1946, and the present suit was filed on the 20th November, 1946, and in these circumstances, the learned Judge held that Prabhulal would have continued in possession till the date of the filing of the present suit but for the erroneous decrees of the trial and the first appellate courts in Khairatilal's suit, and, so Prabhulal's possession having been restored to him as a result of the final court's decree it should be treated as continuous, or, that, in other words, he was in adverse possession of the suit property from 1928 upto the time of the present suit which was brought in November, 1946, and, therefore, the plaintiff's present suit was barred by limitation. The plaintiff has now come up in appeal against this decree.

5. The first question to decide in this appeal is whether the defendant Prabhulal was adopted by Mst. Jarao Kanwar to her husband by a valid adoption. It was strenuously contended before us, as it was before the trial court, that the factum of the adoption had not been satisfactorily proved, and, in any case, even if an adoption took place in fact, it was not valid in law inasmuch as no ceremony oi giving and taking was proved to have taken place. Now it has been laid down by a Division Bench of this Court in Bhajan Das v. Nanu Ram, ILK (1953) 3 Raj 720: (AIR 1954 Raj 17), that under the Hindu law, the physical act of giving and receiving was absolutely necessary to the validity of an adoption, and it seems to us that it is on account of this ruling that very great emphasis was sought to be laid on behalf of the plaintiff in so far as the fulfilment of this essential requirement of a lawful adaption is concerned in the present case.

6. But before we deal with the evidence on this aspect of the case, let it be made clear that although there is no particular mention in the pleadings of the parties that they belong to the Jain religion, it was admitted before us that the deceased Rajmal was a Jain and it was on that footing that the entire question came to be argued. The contention of the learned Advocate General appearing for the plaintiff was that adoption among Jains was a secular affair and that it was a matter of contract between the adoptive parent and the adopted son, or, where he was a minor, his natural guardian, and that it was hardly usual at an adoption among Jains that the ceremony of giving and taking need take place,

7. Now it is well established that adoption among Jains is not a spiritual matter. The Jains do not beiieve that an adoption is necessary for the purpose of any spiritual benefit to the ancestor to whom the adoption is made. The Jafns differ from the Hindus in their attitude towards the dead and do not believe that obsequies are necessary after the corpse is burnt or buried. It is also well established that a Jain widow may adopt without authority from her husband. So also among Jains, a married man may be lawfully adopted. The adoption of a daughter's son or of a sister's son has also been held valid among Jains. We are, however, unable to accept that giving and taking of an adopted son among the Jains is unnecessary or that necessarily; it does not take place.

Thus it was Held in Sheokuarbai v. Jeoraj, AIR 1921 PC 77 that among the Shwetambari sect of Jains, the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband, and that the adopted son may be at the time of his adoption a grown-up and a married man, and, further, that the only ceremony necessary to the validity of an adoption among the Jains was the giving and taking of the adopted son, though it was further held that the actual putting of the boy in the lap of the adoptive father or mother was not necessary.

8. With these preliminary observations, we now proceed to discuss the evidence led by the parties on this aspect of the case.

9-17. (After discussion of evidence with regard to execution of deed of adoption and the ceremonies the judgment proceeded:) We may also draw attention in this connection to the admission made by Mst. Jarao Kanwar herself to the Registrar that she had heard the contents of the deed of adoption and that they were acceptable to her, and she particularly went on to state that all the ceremonies which were customary on such an occasion had been gone through.

18. At this place, we may also refer to the argument of the learned Advocate General based on Ex. 9, which was of a two-fold character. Ex. 9 is an extract from the judgment of the Sub-Judge, Jaipur City, in Case No. 197 instituted on the 2nd June, 1925, and decided on the 31st August, 1926. This was a suit between Mst, Jarao Kanwar and one other person named Mohammed Bus against Prabhulal the defendant here and Labhchand for ejectment from certain shops which were alleged to belong to the deceased Rajmal. One of the issues in this case was whether Prabhulal was an adopted son of Rajmal.

The finding of the learned Sub-Judge on this issue was against Prabaulal and what the learned Judge found was that Prabhulal's adoption was not valid, because, among other reasons his real lather was not alive at the time of giving him in adoption. The learned Judge further observed that the person who took him in adoption had cancelled it and Prabhulal had not got the cancellation deed cancelled and so he could not be regarded as the adopted son of Rajmal. An attempt was made in the first instance to put forward this judgment as res judicata on the question of adoption though this was later given up.

We have no doubt, however, that this contention must fail because the law is well established in this Court that where the principle of res judicata is sought to be applied as between two suits and, therefore, where a case does fall within the terms of Section 11 of the Code of Civil Procedure, then all the requirements of that section must be complied with before the rule of res judicata can be held to be applicable, and that this rule does not militate against the principle that Section 11 is not exhaustive of the circumstances in which the principle of res judicata may be applied, and that it may be applied, apart from the section, to cases which do not fall within its four walls.

It follows, therefore, that although the parties in the two suits may be the same and the matter or matters directly or substantially in issue are identical, it must further be established, before Sec, 11 can be held to be applicable, that the court which tried the former suit was also competent to try the subsequent suit, and that where that is not so, the conditions of Section 11 cannot be held to be fully satisfied and the bar of res judicata cannot be raised in the subsequent suit. See Prem Chand v. Dan Mal, ILR (1953) 3 Raj 505: (AIR 1954 Raj 4).

19. Applying the aforesaid principle to the present case, it has not been established before us that the learned Sub-Judge who tried this suit was competent to try the present suit. The valuation of the present suit has been fixed at Rs. 30,000/-odd, and it has not been shown to us that the pecuniary jurisdiction of the Sub-Judge at the relevant time, that is, in the year 1925-1926 extended so far that he could have had the authority to try a suit of this valuation. We, therefore, hold that there is no merit in this contention, and that the finding of the learned Sub-Judge on the question pf the status of Prabhulal as the adopted son of the deceased Rajmal cannot be accepted to have been conclusively decided by the judgment under consideration.

20. The learned Advocate General then contended that this judgment may at least be treated as indicative of the true state of attain that no ceremony of giving and taking had taken place, because, according to it, Prabhulal's real father was not alive at the time of his adoption by Mst. Jarao Kanwar, This argument is also devoid of substance, for, there is ample evidence on this record to show that Prabhulal's natural father Siremal had giveu him in adoption to Mst. Jarao Kanwar. It seems to us curious that if the inference which was sought to be drawn from Ex. 9 were correct, no cross-examination should have been directed against the defendants' witnesses who had unanimously stated that Siremal was present at the time of adoption. Apart from that reasoning, however, our doubts are finally and fully set at rest when we find that one of the attesting witnesses to the deed of adoption was Siremal, the natural father of Prabhulal. That he was one of the attesting witnesses is established to the hilt by the evidence of no less a person than Mt. Jarao Kanwar's own brother Kanhaiyalal P. W. 1. This is what Kanhaiyalal has stated on this point in his cross-examination :

'Ex, A-1 is 'Tibniyatnama'. I am an attesting witness to it...... Baghmal, Gokulchand, 'Siremal' and Bahadurmal are its attesting witnesses...... Bahadur Mal was the son of Rajmal's nephew...... Gokul Chand was the grand-father-in-law of Chand. 'Siremal' is the father of Prabhulal.' (The underlining (here in ' ') is ours.)

We further find that the adoption deed does bear the attestation of Siremal. It has thus been proved to the hilt that the finding of the learned Sub-Judge that the adoption of Prabhulal was not valid because he had not been given in adoption by his natural father on account of his being dead at the time was obviously incorrect, and, at any rate, it is not binding on us or any of the parties for the purposes of this case.

21. Having regard to this state of the evidence, We are in entire agreement with the learned District Judge in his finding that the ceremony of giving and taking on the occasion of Prabhu Lal's adoption to Rajmal by the latter's widow Mst. Jarao Kanwar had taken place and the said adoption was perfectly valid in law. We hold accordingly.

22. The next question which arises for determination is whether this adoption was cancelled by Mst. Jarao Kanwar in her life-time vide Ex. P-I9 and whether it could be cancelled as a matter of law. There is no doubt that bad blood arose between Prabhulal and his adoptive mother not long after the adoption was made and considerable litigation took place between them. We have already referred to Ex. 8 dated the 24th December, 1925 a judgment of the Chief Court of the former State of Jaipur which shows that Prabhulal had brought a number of suits against Mst. Jarao Kanwar some time in 1924 whereby he sought to obtain a declaration of his status as adopted son of Rajmal and prayed for setting aside the deed of cancellation dated the 12th February, 1923 Ex. 19.

We do not consider it necessary to recite the Contents of this document, which was got registered by Mst. Jarao Kanwar, beyond saying that therein Mst. Jarao Kanwar narrated her severe disappointment with Prabhulal tor the various reasons mentioned in it and concluded by saying that she was not prepared to keep him as her adoptive son any longer and that she had expelled him from her house, and that thenceforward he would have no right in the movable and immovable properties of herself and her husband. It has been argued with great force by the learned Advocate General that any adoption of Prabhulal even if lawfully made stood cancelled for all time after Mst. Jarao Kanwar had executed the deed of cancellation in 1923 and that thereafter be could no longer claim to be the adopted son of the deceased and would have therefore no right to remain in possession of the disputed house.

Here again, the learned Advocate General based his argument on the factor that an adoption among Jains was not a Brahmnical adoption but was a temporal arrangement, and, tnerefore, it was open to the parties thereto, particularly where the adopted son was a major, to agree to the cancellation of the adoption under certain contingencies, and that there could be no objection to the cancellation of the adoption where those contingencies were fulfilled. In other words, it was argued that Pra-bhulal who was a major at the time of the adoption had specifically agreed not only to the postponement of his rights as adopted son of Rajmal during the life-time of her adoptive mother Mst. Jarao Kanwar but had also agreed that it would be open to bis adoptive mother to turn him out and cancel the adoption in the event of his misbehaviour, and that of such misbehaviour there was no lack of proof, the deed of cancellation enumerating such acts of misbehaviour which eventually resulted in a spate of litigation between the adoptive mother and the adopted son.

23. We have carefully pondered over the submission of the learned Advocate General, We may state at once that for ourselves we find it extremely difficult to accept that adoption among Jains, howsoever secular a matter it may be, is only a matter of contract and not of status. It seems to us that the acceptance of the view propounded before us would lead to startling results. The only authority which the learned Advocate General has been able to place before us in support of his proposition is the judgment of the Judicial Committee of the then Jaipur State in Khairatilal's suit against Prabhulal reported as Prabhulal v. Khairatilal, 1944 Jaipur LJ 1 (to which we have already made reference above) which was, however, dismissed by the Committee on the ground that Khairatilal had no locus standi to bring the suit. Though this suit was dismissed on the ground stated above, the aforesaid Committee also considered the question, though somewhat casually, as to whether Mst. Jarao, the adoptive mother, who was a Jain widow, had the authority to cancel the adoption of Prabhulal, and all that the learned Members said in this connection was this:

'It is clear that whatever the law of Jain adoption generally may be, in the present case the person adopted was sui juris and he had accepted the adoption on certain conditions. Therefore, he was bouild by chose conditions and it is not for him to say that the adoption must hold good tout not the conditions. There is a class of cases in which this proposition has been laid down : Ramaswami Ayyar v. Venkata Ramaiyan, ILR 2 Mad 91 (PC); Kali Das v. Bijai Shankar, ILR 13 All 391; Kashibai Ramchandra v. Tatya Genu, ILR 40 Bom 668: (AIR 1916 Bom 312); Pandurang Sakharam v. Narmadabai Ram Krishna, ILR 56 Bom 395: (AIR 1932 Bom 571): Vithal Laxman v. Yamutai Shridhar, ILR 58 Bom 234: (AIR 1934 Bom 121).

Therefore, it only remains to see whether the defendant had acted according to the terms of the agreement as evidenced by Ex. A-X and Ex. 11. Motilal and Kanhaiyalal among the witnesses produced are relations who depose to facts going to show that the defendant carried on business in a manner which was against toe wishes of Jarao Kanwar. He disobeyed her in many ways as related in the deed Ex. 8. As a matter of fact, the defendant denied the execution of these documents, but there is no doubt that the documents are genuine. It is unnecessary to examine the evidence of the witnesses in detail. The judgment Ex. 6 shows that in 1921 the defendant was carrying on litigation against Jarao Kanwar and this was two years before the deed of cancellation was executed by her. The evidence shows that Prabhulal was not acting according to the wishes of Jarao Kanwar and therefore she was entitled according to the terms agreed upon at the time of the adoption to cancel that adoption and this is what she did. But there still remains the question of the locus standi of the plaintiff to bring the suit.'

24. It is important to point out here that this finding could not possibly operate as res judicata between the parties to the present suit as Mst. Asa Bai was not a party to that suit, and, therefore, the parties to these two suits were different. Besides, a finding like this wherein the plaintiff's suit was dismissed could not operate as res judicata against the defendant because he would have no right of appeal from that, the ultimate judgment being in his favour. Be that as it may, the question for decision is whether the finding of the Judicial Committee of the former Jaipur State that Mst. Jarao Kanwar had the authority in law to cancel the deed of adoption once lawfully made is based on any sound reasoning. With the view that an adoption among Jains is not a spiritual matter but is a secular one, we have no quarrel whatsoever.

We are also prepared to recognise, as already stated above, that there were some important points of difference at all material times between an adoption under the Hindu law, pure and simple, and an adoption among Jains. The vital question which still falls for decision is as to whether an adoption even among Jains is capable of being cancelled once it has been lawfully made. In arriving at the conclusion to which the Judicial Committee did, it placed its reliance on a number of decisions already referred to above. We shall now briefly deal with these cases to see if they can be taken as authority for the proposition which was sought to be deduced from them.

25. In ILR 2 Mad 91 (PC), the Privy Council, held that an agreement entered into by the adoptive mother with the natural father of the boy who was taken in adoption to the effect that the boy would inherit only a third of the property of his adoptive father was not void but was at least capable of ratification when the adopted son became of age. It would be noticed that this was a case of limiting the right of the adopted boy to one-third of the property of his adoptive father by means of an agreement between the adoptive mother and the natural father of the boy, the adopted son being a minor. No question of the cancellation of the adoption arose in this case, and, therefore it would be going too far to deduce from this the principle that an adoption once lawfully made can be cancelled.

Even so far as the restrictions on the rights of the adopted boy by such agreement were concerned, what their Lordships said was that whether such an agreement' would bind the son when he came of age was a question which was not altogether unattended with difficulty. Their Lordships further proceeded to observe that an agreement like this was capable of ratification when the sou became of age, and they found on the evidence which was led in the case, that the son had ratified it. In this view of the matter, the Privy Council refused to set aside the agreement.

26. The next case is ILR 13 All 391. In this case, the widow of a separated Hindu while making an adoption to her deceased husband, imposed a condition that during her lifetime, she would be the owner and manager of the estate, and that the adopted son would have the same rights and privileges, as would have been enjoyed by a natural son of her husband after her death. This was also a case of a minor and he had ratified the arrangement after he had attained the majority. Reference was made to the case of Ramasami Ayyar, ILR 2 Mad 91 (PC) cited above, and the agreement was held to be valid. It is enough to say that no question of the cancellation, of the adoption arose in this base also.

27. In ILR 40 Bom 668: (AIR 1916 Bom 312), the widow executed two documents by one of which she made the adoption of the first defendant and specified the properties therein to be given to the adapted son, and by another, she executed what was termed a will bequeathing other properties to the plaintiff who was her grand-daughter. The question arose whether the plaintiff was entitled to the properties which she claimed, or, in other words, the rights of the adopted son could be truncated. The learned Judges held that the latter was a major and that the two documents read together constituted a single family arrangement disposing of the properties between the plaintiff and the defendant referred to therein, and that it should, therefore, be inferred that the first defendant who was then of full age deliberately accepted this family arrangement and its advantages and must be held to it. This decision in our respectful opinion is also no authority for holding that the adoption of a boy once lawfully made can be cancelled.

28. In ILR 56 Bom 395: (AIR 1932 Bom 571), it was held that where a Hindu adopted son who Was sui juris agreed at the time of his adoption that he would carry out certain agreements as to the property which he would acquire on adoption, he would be bound by that agreement and was not at liberty to accept the adoption, and disregard the agreement. The decision of the Privy Council in Krishnamurthi Aiyar v. Krishnamurthi Aiyar, AIR 1927 PC 139 which had in the meantime been given in 1927 and to which we propose to make a detailed reference presently was brought to the notice of the learned Judges as negativing the broad proposition which was acceptable to them, but they distinguished that case on the ground that the case of Krishnamurthi was that of a minor and not of a major adopted son. It is enough to say for our present purposes that the agreement even in this case was not to the extent that the adoption itself could be cancelled if the adoptive mother thought fit to do so.

29. The last case referred to by the Judicial Committee is ILR 58 Bom 23,4: (AIR 1934 Bom 121). The facts there were that a Hindu died leaving him surviving his widow G and the plaintiff, a daughter's daughter. G adopted the defendant. On the same day, the adoption was made, the adopted son passed an agreement to G whereby he agreed to pay Rs, 5000/- to the plaintiff when she attained majority. The plaintiff when she came of age, filed a suit for recovery of Rs. 5000/-. It was held that a major adopted son was bound by an agreement which he makes on adoption; but it was further held that the suit would still fail because it had been brought not by the adoptive mother but by the plaintiff who was not a party to the agreement, and also that the document did not constitute a family arrangement, as the plaintiff being a daughter's daughter had no right in the family property. The plaintiff's suit was dismissed accordingly.

30. At this juncture, we consider it proper to draw attention to the decision of the Privy Council in AIR 1927 PC 139 which apparently was not cited before the learned Members of the Judicial Committee of the Jaipur State and which seems to us to have a very important bearing on the validity or otherwise of agreements between an adoptive parent and the natural father of the adopted son made at the time of the adoption or thereafter. The facts of this case were these. On the 23rd March, 1910 R, a Hindu, prior to the adoption of the appellant, made a will whereby he gave portions of his ancestral land to his wife and to the son to be adopted and the remainder to his other relations who were not entitled to maintenance from him, and out of the lands given to his wife, on her death, part of it was to go to the adopted son and part to the other relatives.

On the same day the natural father of the appellant executed a document by which he agreed to these dispositions and the appellant was then adopted with all due ceremony. R and his widow died in 1911 one after the other. The other relations who were sought to be benefited under the will brought an action against the appellant. The question then arose whether the will taken along with the adoption was binding on the appellant so as to cut down the rights to which he would have been otherwise entitled. The courts in India upheld the dispositions made in favour of the plaintiffs. On appeal by the appellant to the Privy Council, it was contended that the determination of the question raised was concluded by the decision of the Board in 1LR 2 Mad 91 (PC) already referred to above. Their Lordships repelled this contention in the following words:

'It seems impossible to hold, as some seem to have held, that this is inferentially a judgment on the general question. The whole point there was that, however the general question stood, there was an agreement which was not void in the sense of being an agreement that was funditus null, e.g. an agreement that marriage should be for a limited period, and that, therefore, as there was ratification, there was no need to decide the general question.'

Their Lordships then embarked upon an elaborate examination of the numerous decided cases in India and observed that it was not possible to reconcile all these decisions or the reasons on which they were based, and therefore their Lordships proceeded to examine the matter on principle. The conclusions BO arrived at may be summarised somewhat as follows :

(1) Where a disposition has been made inter vivos by a full owner prior to the adoption, and similarly where a disposition is made by a will, and an adoption is then made by the widow, such dispositions cannot be affected by the rights of the son who has been subsequently adopted, and the consent or non-consent of the natural guardian of the adopted son cannot affect this result.

(2) Where the adoption is antecedent to or contemporaneous with the dispositions by the adoptive father, the position becomes materially different inasmuch as the consent of the natural father to Such disposition cannot have any effect on the rights of the adopted boy which only arise when his rights as a natural father have already come to an end. The theory that the natural father is the guardian of his minor son may bind the son by anything done to benefit him is of no value because the power of guardianship ends as soon as the son acquires any interest in the property.

(3) The doctrine of approbate and reprobate offers no solution to the problem arising in such cases because the adopted son has no election for he cannot undo the adoption once it has been made, and, therefore, a conditional adoption also cannot foe made in the. sense that it may enure for a stated time or under certain contingencies only.

(4) Having so found, their Lordships proceeded to lay down that there was a consensus of judicial decisions upholding a class of agreements between the adopted son and the widow regulating their rights qua each other, and this, according to their Lordships was sufficient to entitle them to come to the conclusion that such arrangements are sanctioned by custom so that an agreement with the natural father by which the minor's interest in the property of the adoptive widow was postponed for her lifetime need not be held as incompatible with his position as a son.

(5) Any arrangement however by which property is given to the widow absolutely or to strangers and as to which no specific custom is established would be against the basic consideration underlying an adoption under the Hindu law and cannot be held, no matter that such arrangements may Slave been consented to by the natural father and may be of benefit to him 'in the sense that half a loaf being better than no bread, he is better with an adoption with truncated rights than with no adoption at all.' In this view of the matter their Lordships allowed the appeal and dismissed the suit.

31. The same position, in our respectful opinion, would appear to hold good in the case of an adopted son who is sui juris at the time of adoption.

32. Thus in Mt. Gulab Kunwar v. Askaran, 1LR (1956) 6 Raj 461, the question arose before one of us (the author of this judgment) whether an agreement made by a son, who was sui juris, with his adoptive mother at the time of his adoption that the latter would remain in enjoyment of the entire property and that the rights of the adopted son would remain postponed in favour of the adoptive mother for her life time could be upheld. The answer given was this :

'such an agreement would be valid even in the case of a minor son if made with the consent of his natural guardian on the authority of Krishnamurthi's case; a fortiori it must be held to be valid in the case of a major son.'

In the course of the same judgment, the following observations were made at p. 468 with reference to the decision of the Bombay High Court in Kashi Bai's case, ILR 40 Bom 668: (AIR 1916 Bom 312J and Pandurang's case, ILR 56 Born 395: (AIR 1932 Bom 571) cited above:

'Both these cases belong to a category where benefits given by the anti-adoption agreements went to outsiders and we have the decision of their Lordships of the Privy Council that if such arrangements were made in the case of minor adopted sons even with the consent of their natural guardian, such an arrangement would be illegal. It is a serious question and by no means easy whether agreements of this type would be valid in the case of a major adopted son.'

The question before us in the present case is of a still more radical nature, namely, whether a major adopted son (or for that matter the natural guardian of a minor adopted son) can agree to the cancellation of his adoption by his adoptive mother, under any contingencies, and it is this question we are called upon to answer.

33. From the aforesaid survey of all these cases, we find that none of these cases can. be taken to be any authority for the proposition that an adoption once made can be lawfully cancelled by the person making the adoption. In fact, it is one of the firmly established principles of Hindu, law that a valid adoption once made cannot be cancelled by the adoptive father or other parties thereto. It is equally firmly established that it is not open to the adopted son to renounce his status as such and to return to his family of birth though he may renounce his right of inheritance in the adoptive family in which case the inheritance would go to the next heir. See Lunkurn Rampooria v. Birji, AIR 1931 Cal 219 and Bhupati Nath v. Basanta Kumari, AIR 1936 Cal 556.

34. Realising the above position, so far as a Brahmnical adoption is concerned, the learned Advocate General sought to distinguish all these cases by the submission that an adoption among Jains stood on an entirely different footing inasmuch as it was essentially a matter of contract and not of status. As we have pointed out above, a Jain adoption has a secular character, and there are some well-established features as respects which such adoption differs from an adoption under the Hindu law. From this, however, we find ourselves unable to go to the extent of holding that an adoption among Jains once made could be cancelled.

AS we look at the matter, adoption is a matter of status and it involves the transplanting of a son from his original family to the family in which he happens to be adopted. In other words, the position is as if such a son dies in his original family and is born in the new family. Fully accepting the proposition, therefore, that adoption among Jains is not a spiritual but a secular matter, the question is whether the aforesaid essential characteristic of adoption is a matter peculiar to adoption under the Hindu law and not among the Jains. We have no doubt that a son adopted in a Jain family after adoption will have his rights of succession in the adoptive family and not his original family.

If the submission of the learned Advocate General is to be accepted, we are disposed to think that tremendous confusion and complications would result as to the rights of Succession of adopted sons among Jains, and their position would become extremely precarious. We, therefore, called upon the Advocate General to cite a single case before us where an adoption among Jains once having been made was cancelled and such cancellation was upheld in a court of law. But he was unable to cite any. We also desire to point out here that the principle is well settled that the Hindu law must be held to apply to Jains except where a special custom or usage modifying that law has been proved as applicable to Jains. It is also well to remember in this connection that special custom or usage has either to be proved by evidence just like any other custom modifying the general law has to be proved, or it may be proved by judicial precedents recognising the same.

Only one judgment of the Judicial Committee of the former Jaipur State in 1944 Jaipur LJ 1 was brought to our notice in this connection. But even that was not based on custom, and the conclusion arrived at therein that an adoption among Jains can be cancelled where a major adopted son has so agreed was sought to be deduced from certain decisions of the Indian High Courts and of the Privy Council. These decisions we have ourselves analysed above, and we are constrained to point out, with respect, that none of them can be taken as any authority for the proposition which the learned Judges of the Committee felt persuaded to deduce from them. All that these cases establish is that by custom the rights of a major adopted son or even of a minor through his natural guardian may by an appropriate agreement be curtailed as between the adopted son and the adoptive parents within certain limits but not beyond them.

In none of these cases there was an agreement that an adoption validly made, could be cancelled by the adoptive parent (let alone that such an agreement was held to be valid) and therefore we are entirely unable to hold them as any authority for the proposition that a valid adoption among Jains as among Hindus can be cancelled. The correct position, therefore, is that an adoption among Jains like an adoption under the Hindu law cannot be cancelled after it has been lawfully made owing to the very fundamental consideration underlying an adoption unless perhaps a custom may have been fully established by clear evidence to that effect, of such evidence, there is a complete failure in the present case.

We, therefore, come to the conclusion that the adoption of Prabhulal which was lawfully made by Mst. Jarao Kanwar was, notwithstanding the stipulation in the adoption deed that it could be cancelled under certain contingencies, incapable of being cancelled by his adoptive mother, or, even by himself, and that this status which he acquired by virtue of the adoption continued and must so continue to attach to him ever since his adoption took place in Smt. 1976 or 1919 A. D.

35. We are fortified in coming to the conclusion to which we have come above by the law of adoption which has recently been uniformly laid down by the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956) which applies to Hindus as well as Jains alike. Section 15 of this Act clearly enshrines the basic principle that an adoption which has been validly made cannot be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

We should not be understood to mean that this law can be applied retrospectively to adoptions made or cancelled before 1956; but we have drawn attention to this provision as in our considered opinion it embodies a fundamental characteristic of adoptions which is common to Hindus as well as to Jains alike. We have, therefore, no hesitation in holding that the defendant Prabhulal having been lawfully adopted by Mst. Jarao Kanwar to her deceased husband Rajmal, its attempted cancellation by Mst. Jarao Kanwar later was and must be held to. be no legal effect whatever. We hold accordingly.

36. The true position, therefore, boils down to this that the defendant Prabhulal by virtue of his being the adoptive son of Rajmal was entitled to succeed to his property in 1928 on the death of his adoptive mother Mst. Jarao Kanwar, fully accepting that his rights stood postponed during the life-time of his adoptive mother by virtue of a valid agreement arrived at between them which Prabhulal being a major was fully competent to make and the same was binding upon him. In this view of the matter, the plaintiff's suit cannot but fail.

37. The only other question which was argued before us was that whatever our decision may be on the question of adoption, the defendant Prabhulal is still entitled to succeed in this suit as he has been in adverse possession of the property in suit for more than the statutory period of 12 years. The factual position in this connection is this. It is admitted that Prabhulal was in possession of the suit property right from August, 1928. In 1935 Khairatilal the second defendant filed a suit against him as respects this very property and that suit was decreed. The decree was also upaeld by the first appellate Court. Thus the possession of the suit property was taken over by Khairatilal from the defendant through Court in 1937.

On a further appeal to the Judicial Committee of the former Jaipur State by Prabhulal, his appeal was allowed on the ground that though his adoption was capable of being cancelled by Mst. Jarao Kanwar who was a Jain widow in accordance with the agreement arrived at between him and his adoptive mother, the said Khairatilal, being a daughter's son, had no right of suit, as the present plaintiff Mst. Asa Bai was a nearer heir to the deceased Rajmal being his daughter. As a result of this decision, Prabhuial got back the possession of the property in May, 1946, which had been taken away from him in 1937.

The present suit was brought on the 20th November, 1946. The question for determination in these circumstances is whether it is open to Prabhuial to tack to the period of his hostile possession from 1928 to 1937 the period during which he had been kept out of possession by a decree of court of law. If these two periods can be tacked in law, we have no doubt that he is entitled to succeed even on the ground of adverse possession. Now it is settled law that the possession of two independent trespassers can be tacked to prescribe for the statutory period if they claim through each other. See Sajjad Husain v. Qurban All Beg, 96 Ind Cas 687: (AIR 1926 All 697), The present case, however, does not fall within the scope of this principle because it cannot possibly be said that Prabhuial was claiming through Khairatilal or vice versa.

There is, however, authority for the proposition that in a case like the present where a defendant has been kept out of possession by a decree of a court of law for a portion of the period which has broken the continuity of his possession and there is no interregnum whatever between the two periods of possession, then the entire period may be taken as continuous, and if the total period comes to the prescribed period required, then the defendant would be entitled to the benefit of the entire period including that during which he has been out of possession. See Dagdu v. Kalu, ILR 22 Bom 733 and Haridas Chatterjee v. Manmatha Nath, AIR 1936 Cal I.

We are disposed to accept this view as correct, for it was through no fault of the defendant Prabhuial that his possession came to an end in 1937 and it was the decree of a court of law by which it was broken, and it seems to us that once that erroneous decree was set aside, his possession must be deemed to have continued right from 1928 to 1946 which is more than 12 years. As held in Dagdu's case, ILR 22 Bom 733, the reversal of the decree by the superior court must relegate the parties to the position which they occupied at the commencement of the suit and the erroneous action of the courts below should not put him in a less favourable position than he would have occupied if such decrees had not been made. Besides, the defendant could have sued the intervening party in possession namely Khairatilal in this case for mesne profits during the time he remained in possession under the erroneous decrees of the courts below.

On this view, Prabhulal's adverse possession which certainly began some time in 1928 should be taken to have continued right up to 1946 notwithstanding the intervening period during which he was kept out of such possession by a decree of court, and that being so his possessory title to the. property in suit became perfected and cannot be interfered with according to law. We may also point out here that the defendant Prabhuial has been claiming to be in adverse possession throughout this period and there is no substance in the contention of the plaintiff that in the earlier suit of Khairatilal he had admitted the title of the plaintiff.

All that he had said there was that if his title as the adopted son of Rajmal was not accepted, even then Khairatilal had no locus standi to bring that suit in the presence of Mst. Asa Bai who was Rajmal's own daughter. It is, however, unnecessary to pursue this matter further as we have come to a firm conclusion on the question of adoption, namely, that the adoption of Prabhuial is satisfactorily proved, both as a matter of fact and of law, and that that adoption could not possibly have been cancelled by Mst. Jarao Kanwar in law, and, therefore, the conclusion is inescapable that Prabhulal is the lawful heir of the deceased Rajmal and is entitled to the property in dispute,

38. In the result this appeal fails and is hereby dismissed with costs to the contesting respondent.


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