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Umaram Gogoi Vs. Puruk Chand Oswal and ors. - Court Judgment

LegalCrystal Citation
Subject Family; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal993,85Ind.Cas.540
AppellantUmaram Gogoi
RespondentPuruk Chand Oswal and ors.
Cases ReferredBallu Mal v. Ram Krishan A.I.R.
Excerpt:
- .....or that the defendant no. 3 was treated by bhadoi in such a way as led him to believe that he was bhadoi's adopted son, and on that footing and on account of such acquiescence and by reason of such encouragement, he severed his connexion with his natural family or underwent a change of circumstances in such a way that when restored to his natural family his position would be very different from what it would have been {if he had never left it. this principle of estoppel has been recognised in rajendra nath holdar v. jogendra nath banerjee (1871-72) 14 m.i.a. 67. this question would arise, if the finding of the learned munsif to the effect that defendant no. 3 left his paternal home and properties and came to live in bhadoi's family and lived there since then till the suit, is not.....
Judgment:

Mukerji, J.

1. Some of the questions which arose for consideration upon the facts proved or sought to be proved on behalf of the parties in this suit are these.

1st:-Is the defendant No. 3 the adopted son of Bhadoi?

2nd:-Is the plaintiff estopped from questioning the adoption, if any, of Bhadoi?

3rd:-Was there a separation between the defendant No. 1 and the defendant No. 3 after Bhadoi's death?

4th :-Is the plaintiff entitled to any relief in view of the provisions of Section 41 of the Transfer of Property Act?

2. The first question the Court of first instance answered in the affirmative. This finding was based on the following.-1. The direct evidence of adoption; 2. the fact that the defendant No. 3 left his father's house and came to live with Bhadoi and lived with the latter till his death; 3. the fact that the defendant No. 3 lived with Bhadoi and then with defendant No. 1 till the latter separated from him about a year after Bhadoi's death and that the defendant No. 3 was still living in Bhadoi's house; 4. the fact that the defendant No. 3 possessed Bhadoi's land, though he had some paternal land which was in the occupation of his nephews; and 5. the fact that the explanation offered by the defendant No. 3 occupied Bhadoi's land as his ploughman was false. The lower Appellate Court observed in its judgment: 'My finding, therefore, is that there was no adoption at all.' I have been asked to treat this finding as a finding of fact. I regret I am unable to do so. The grounds upon which this ultimate finding is based in the words of that judgment are these :-1. ' The evidence is meagre and even if there was an adoption it was not valid. It was said that the defendant No. 3 was given in adoption by his mother. The mother had no power to give him in adoption.' 2. 'I am, however, not satisfied that defendant No. 3 was always recognised as Bhadoi's son or that he is in possession of all properties of Bhadoi' rejecting the arguments to that effect put forward on behalf of the plaintiff appellant before him. The finding based on these two grounds might mean either that there was no adoption in fact or that the adoption was not valid in law. The view that it was not valid in law cannot be supported in view of the ruling in the case of Jogesh Chandra Banerjee v. Nritya Kali Debi (1903) 30 Cal. 965 I am therefore asked to hold that the finding means that there was no adoption in fact. I do not know why I should take upon myself to say that it is the one and not the other. In second appeals we are precluded from interfering with findings of fact arrived at by the lower Appellate Court; but what is relied upon in this case is, in my judgment, not a finding of fact at all. It might mean either and it is not for this Court to say that the lower Court must have meant something for no other reason than that it was its duty to say the same. I, therefore, think that this is not a finding of fact. Moreover if the Court meant 'to reverse the finding of the primary Court on this point, should it not have considered all the important materials on which that finding was based? I am not unmindful of the fact that it would be intolerable if a Court were required to give all its reasonings in its judgment or notice all the evidence which influences its decision. But the position is wholly different where a Court takes upon itself to reverse a finding of the trial Court on a question of fact. Now let us examine the five grounds given by the trial Court on this point and see how they have been dealt with by the lower Appellate Court. No. 1 may be said to have been disposed of, for in the opinion of the lower Appellate Court the direct evidence was meagre. Nos. 2 and 5 have been disposed of by the finding that the plaintiff was in possession and as soon as he was dispossessed he filed a possessory suit under Section 9 of the Specific Relief Act and recovered possession. But what about the admitted fact that the defendant No. 3 was in occupation of the lands, the explanation for which occupation was not accepted by the trial Court? What about the separation of defendant No. 1 from the defendant? What about the defendant No. 3 still living in Bhadoi's house? What about the inference that may be drawn from the fact that defendant No. 3 had left his paternal properties such as he had and that his nephews were occupying them? Ignoring these facts and circumstances altogether if the lower Appellate Court means to suggest that its finding was that there was no adoption in fact, I am not prepared to accept that finding as a finding of fact.

3. Then as to the second question, the question arises if it be found that there was an adoption in fact but that the same was invalid for some reason or another, or that the defendant No. 3 was treated by Bhadoi in such a way as led him to believe that he was Bhadoi's adopted son, and on that footing and on account of such acquiescence and by reason of such encouragement, he severed his connexion with his natural family or underwent a change of circumstances in such a way that when restored to his natural family his position would be very different from what it would have been {if he had never left it. This principle of estoppel has been recognised in Rajendra Nath Holdar v. Jogendra Nath Banerjee (1871-72) 14 M.I.A. 67. This question would arise, if the finding of the learned Munsif to the effect that defendant No. 3 left his paternal home and properties and came to live in Bhadoi's family and lived there since then till the suit, is not reversed on appeal provided that it be found that Bhadoi acquiesced in or encouraged the defendant No. 3 in regarding himself as his adopted son and the change of circumstance took place in consequence of such acquiescence for encouragement. It will, however, have to be remembered that estoppel is purely personal and it will not affect the defendant No. 1 in so far as he claims a title [otherwise than through Bhadoi [Lala Parbhu Lal v. Mylen (1887) 14 Cal. 401]. This matter does not appear to have been dealt with by the lower Appellate Court.

4. On the findings of the learned Munsif and upon the uncertain finding of the learned Subordinate Judge on the question of possession which I have referred to above, arises the third question, and if it be answered in the affirmative, a question of limitation may also arise.

5. The fourth question arises upon the finding that the defendant No. 1, though served with notices of registration of the names of the defendant No. 3 and also of the defendant No. 2, raised no protest or took no steps to cancel the same. The omission to do so, so far as the registration of the name of the defendant No. 3 is concerned may be condoned on the ground that was a minor at the time; but the continuance of the said omission when he became major and also the omission so far as the registration of the name of the defendant No. 2 is concerned may not create an estoppel unless it was the duty of the defendant No. 1 to speak and in that sense there may be no estoppel so far as the defendant No. 1 is concerned. But Section 41 of the Transfer of Property Act, provided its conditions are fully satisfied, affords a protection to bona fide purchasers from ostensible owner and lays down an exception to what may be said to be the general rule that a person cannot convey a better title than he himself has in the property. The principle has been thus enunciated by the House of Lords in the case of Cairnucross v. Lorimer (1860) 3 Macq. H.L. 827: ' If a man either by words or by conduct has intimated that ha consents to an act which has bean done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.' Generally speaking, if a party having an interest to prevent an act being done has full notice of its having been done and acquiesces in it so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their pre-judice than he 'would have had if it had; been done with his previous license.

6. The same principle has been adopted in the case of Sarat Chunder Dey v. Gopal Chunder Laha (1893) 20 Cal. 296 and Bhimappa v. Basawa (1905) 29 Bom 400. In the latter case Sir Lawrence Jenkins, C.J., at pages 403 and 404 laid down that mere acquiescence is not equivalent to consent; consent need not be by word and may be by act, and if consent can be intimated by conduct as well as by act, it is clear that acquiescence may, under certain circumstances, be taken to be consent. If, however, any one of the essential elements mentioned in Section 41 be wanting the transferee is not entitled to the protection provided by that section: Ballu Mal v. Ram Krishan A.I.R. 1921 All. 311. In any event this question has got to be considered, but has not been considered.

7. I, therefore, think that the decree of the learned Subordinate Judge cannot stand. It is hereby set aside and the case sent bank to his Court so that the appeal may be dealt with afresh in the light of the observations made above and necessary findings being arrived at, the appeal may be disposed of. Costs of this Court to abide the result.


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