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Om Prakash and ors. Vs. Tarachand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 2 of 1976
Judge
Reported in1977WLN(UC)42
AppellantOm Prakash and ors.
RespondentTarachand
DispositionAppeal dismissed
Cases ReferredNarayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors.
Excerpt:
.....her husband--held, it is a question offset and it cannot he allowed to be raised in second appeal for first time.;(b) adoption - ceremonies 'khola' system in bikaner required no ceremonies.;(c) evidence act - admission by a party & admission by a witness distinction between--admission by a party is piece of substantive evidence.;special appeal dismissed - - however, he found pw1 vidhya prakash and pw6 harak chand unreliable. 5. the other point raised is that the plaintiff has failed to prove that that ceremony of giving and taking took place. the point appears to have not been raised purposely because the law in the bikaner state stood well settled on this point. 558. thus keeping in view the law prevalent in the bikaner state, as well the law enumerated by this court in the above..........it is purely a question of fact and it cannot be allowed to be raised at this stage.5. the other point raised is that the plaintiff has failed to prove that that ceremony of giving and taking took place. in the absence of strict proof of the performance of the ceremony of giving and taking, a valid adoption cannot be said to have been made. it will not be out of place to mention that this point was also not raised by the contesting defendants in the trial court. such a point has not been raised in the written statement. the point appears to have not been raised purposely because the law in the bikaner state stood well settled on this point. 'khola system was prevalent in the bikaner state as held in ramanlal v. mst. nanda 5 bik l.r. 30 (part ii) under which no ceremonies were required.....
Judgment:

M.L. Shrimal, J.

1. This special appeal by Om Prakash and others is directed against the judgment of Hon'ble the Acting Chief Justice dated October 23, 1975, whereby he upheld the decree for partition passed by the learned Additional District Judge, Churu in Civil Regular Suit No. 111 of 1968 on the ground that Tarachand was validly adopted son of Bhagirath.

2. Tersely put shorn of unnecessary details the facts giving rise to this special appeal are that Khetaram had three sons, namely, Bhera Ram, Khuba Ram and Jairam. Jairam died issueless and Khubaram went in adoption to some other family. Bhera Ram had two sons : Bhagirath and Chhaganmal. Bhagirath died issueless. Chhaganmal had three sons : Tarachand Omprakash and Suryaprakash. It is alleged that Tara Chand went in adoption to Bhagirath in Samwat Year 1999, equivalent to year 1943 A.D. Tarachand filed the present suit against Chhaganmal, Omprakash and others for partition of the ancestral property and claimed one half share in that property on the ground that he was the adopted son of Bhagirath. In para No. 3 (Kha) of the plaint it was pleaded that defendant Chhaganmal had admitted Tara Chand to be validly adopted son of Bhagirath in Civil Regular Suit No. 260 of 1953 brought by Chhaganmal and Tarachand against the donee of Mst. Lichhmi, widow of Bhagirath.

3. The appellants contested the suit. The learned Additional District Judge placing reliance on the admissions of Chhaganmal made in the earlier suit No. 260 of 1953 and his statement made on oath during the course of the trial of that case, and the statements of PW1 Vidhya Prakash, PW2 Mangilal PW3 Ugamlal, PW6 Harakchand and PW8 Purananand held that Tarachand was validly adopted son of Bhagirath and decreed the suit of the plaintiff by his judgment and decree dated September 29, 1970. Being aggrieved of that the appellants took up an appeal which came up for decision before the Hon'ble the Acting Chief Justice, who upheld the judgment of the trial court placing reliance on the admissions made by Chhaganmal in the original suit No. 260 of 1953 both in the plaint and in the statement before the court. He also placed reliance on the statement of PW2 Mangilal, PW8 Purnanand and PW6 Harakchand. However, he found PW1 Vidhya Prakash and PW6 Harak Chand unreliable. On the basis of the above findings the Hon'ble Acting Chief Justice dismissed the appeal by his judgment and decree dated October 23, 1975. Hence this special appeal.

4. Learned Counsel, appearing on behalf of the appellants, has challenged the judgment of the learned Single Judge on the following three grounds : Firstly, he has urged that there is no evidence on record worth the name to hold that Mst. Lichhmi had the authority to adopt a son after the death of her husband. This point was neither raised in the written statement nor it was argued before the trial court or the first appellate court. It is purely a question of fact and it cannot be allowed to be raised at this stage.

5. The other point raised is that the plaintiff has failed to prove that that ceremony of giving and taking took place. In the absence of strict proof of the performance of the ceremony of giving and taking, a valid adoption cannot be said to have been made. It will not be out of place to mention that this point was also not raised by the contesting defendants in the trial court. Such a point has not been raised in the written statement. The point appears to have not been raised purposely because the law in the Bikaner State stood well settled on this point. 'Khola system was prevalent in the Bikaner State as held in Ramanlal v. Mst. Nanda 5 Bik L.R. 30 (Part II) under which no ceremonies were required to be performed while making a valid adoption except the making of an unequivocal declaration. Their Lordships of the Bikaner High Court in Raman Lal v. Mst. Nanda have observed as under:

Under Khola system none of the conditions of the Hindu Law noted above are essential. Grown up and married persons having children are made Kholas.... The rule of the Hindu Law that adopted son's mother in her maiden state be marriageable to the adoptive father is totally ignored and daughter's sons arid sister's sons are generally adopted as Kholas. Giving and taking of the boy do not take place and Datta Howan is never performed.... Widows adopt Kholas without the authority or permission of their husbands.

6. Placing reliance on this judgment a Division Bench of this High Court in Heera Lal and Anr. v. Mohadeo and Ors. ILR 4 Raj. 608 held that according to Khola form of customary adoption, prevalent in the former Bikaner State, widows can adopt sons without the authority or permission of their husbands and consent of coparceners is not necessary. The same view was taken in Surjeet Singh v. Kripal Singh ILR 4 Raj. 558. Thus keeping in view the law prevalent in the Bikaner State, as well the law enumerated by this Court in the above noted cases, the second contention raised by the learned Counsel for the appellants is also not tenable.

7. The third contention raised by the learned Counsel for the appellant that admission of Chhaganmal when he entered the witness-box and an opportunity to explain was not given to him as provided by Section 145 of the Indian Evidence Act needs to be only mentioned and rejected. The contention raised by the learned Counsel for the appellants does not notice of the distinction between an admission of a party and the admission of a witness used for confronting his statement in the witness-box. The admission of a party is a piece of substantive evidence which can always be relied up unless proved to be false. Reference maybe made to Bharat Singh and Ors. v. Mst. Bhagirathi : [1966]1SCR606 . His Lordships Raghubar Dayal J., speaking for the Court laid down the law, on this point, as under:

Admissions are substantive evidence by themselves, in view of Sections 17 & 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether that party when appearing as witness was confronted vith those statements in case it made a statement contrary to those admissions. The purpose of (sic) tradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness.

8. Hon'ble the Supreme Court of India in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. : [1960]1SCR773 while considering the evidenciary value of the admissions made by the hereditary she bait, in that case, observed as under:

An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless erroneous.

9. No other point was pressed before us. The net result of the above discussion is that this special appeal has no merits and is dismissed summarily. In the facts and circumstances of the case the parties will bear their own costs.


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