TaxTMI 
TaxTMI 
1970 (1) TMI 92
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....ant no. 2 Narendra Sachendra Dharmendra Ravindra Nath Devendra Nath | | Kalawati Damodar Das Mst. Chameli (dead) (predeceased Dal Chand) =Ranchhordas =Pushpa Wati (dead) Arjunsingh (Plaintiff) Prem Wati It would be seen that Dal Chand had a son, Damodardas, and two daughters, Smt. Kalawati and Smt. Chameli. The case of the plaintiff, Arjun Singh, is that the property in suit was owned exclusively by Dal Chand and upon his death, which took place in August 1914, it devolved upon his two daughters because his son had predeceased him. Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had been married outside Agra. The property was, therefore, being managed by Pannalal and Nathilal, nephews of Dalchand, on behalf of the two daughters. It has further been alleged that under an agreement dated September 2, 1914 the rent of the shops in suit, which were all in the occupation ....
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....under a will Dal Chand bequeathed some moveable property to Smt. Pushpawati and her daughter Premwati besides confirming the authority to adopt given to Smt. Pushpawati by her husband, Damodar Das. 4. The learned Civil Judge framed the following issues on the basis of the pleadings of the parties and the statement of their counsel under Order 10, Rule 2. Civil P.C.: "1. Whether the plaintiff is the son of Mst. Chameli daughter of Dal Chand as alleged? 2. Whether Dal Chand died as a separate member as alleged by the plaintiff and whether property in suit is his self-acquired property as alleged? 3. Whether the defendant No. 2 was adopted by the widow of Damodar Das deceased as alleged and whether the adoption was valid? 4. Whether the suit is under-valued and the court-fee paid is insufficient? 5. Whether the suit is barred by time? 6. Whether the suit is barred by estopped and acquiescence? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the plaintiff is entitled to mesne profit....
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.... counsel for the defendants-respondents did not at all challenge the findings recorded in favour of the plaintiff on issues Nos. 1, 2. 5. 6 and 7 and the appeal was argued before us on the footing that the findings on the aforesaid five issues may be accepted as correct. We have, therefore, to confine ourselves to a consideration of the questions that form the subject-matter of issue No. 3 which is, indeed, the basic issue in the case. 7. The most important piece of evidence bearing on this issue is a registered agreement, Exh. B14, executed on September 7, 1914, i.e. very shortly after the death of Dal Chand who, it appears, died in August 1914. The executants of this agreement were Smt. Kalawati and Smt. Pushpawati (the two daughters of Dal Chand) and Pushpawati (widow of Damodar Das). Since much turns on the effect and implication of this deed of agreement we reproduce below an English translation of the deed from the paper book. "We, Mst. Natho alias Kalawati. wife of Pandit Moti Lal, and Mst. Chameli, wife of Ranchhor, daughters of Pandi Dal Chand and Mst. Pushpawati widow of Damodar Das son of Dal Chand, caste Brahmin, resident of Bhairo Belanaganj, A....
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....e and be of use when needed. Left thumb impression of Mst. Kalawati wife of Moti Lal. Left thumb impression of Mst. Chameli wife of Ranchhor. Left thumb impression of Mst Pushpawati widow of Damodar Das. Witnesses: Sd. Shyam Kishan son of Chunni Lal Brahmin, resident of Ramarauli Katra, Sd. Ranchhor Lal in urdu. Sd. Kishan Deo Sharma." The genuineness of this deed of agreement is not open to question and was, indeed not questioned either in the trial court or before us. The preamble to this deed makes it abundantly clear that Dal Chand left no will, and it only recites that Pandit Dal Chand expressed some wish in regard to the course that his property should take after his death in a memorandum which was found in the custody of one Babu Ram Charan Das. The memorandum did not constitute a will and it has been specifically mentioned in the deed of agreement that although the memorandum was "by way of his will" Pandit Dal Chand could not duly complete his will during his life time. The memorandum is not on record and defendant No. 2 nowhere pleaded that Dal Chand made a wil....
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....nts and of the boy who might be taken in adoption by Smt. Pushpawati. We find it very difficult to conceive that if Smt. Pushpawati had been directed or permitted by her husband Damodar Das, who had died just a few months before the execution of this agreement, to adopt a son that fact could have escaped mention, particularly when the wishes of Dal Chand in regard to the adoption were specifically set out. The inference seems irresistible that till the date of execution of this agreement nobody concerned with the transaction had any idea that Damodar Das too had directed or authorised Smt. Pushpawati to take a son in adoption. 9-13. (After discussion of other documentary and oral evidence His Lordship proceeded). On the basis of evidence of this character it would not, to our mind, be possible to hold that the alleged permission of Damodar Das has been proved even if the agreement Exh. B14 and the application Exh. 18 referred to above were not on record. These documents, however, seem to us to be entirely destructive of the theory of an authority to adopt given by Damodar Das and, at any rate, so strongly suggestive of a contrary inference that oral evidence of only an unimpeach....
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....t Brijendra Nath made claims to the properties of both Pannalal and Dal Chand. The statement of Laxmi Narain too is extremely unsatisfactory and, in our opinion, he too is a totally unreliable witness. (After discussion of evidence of this witness His Lordship proceeded). 15. The learned Civil Judge has observed that it is not always necessary to have direct evidence of authority to adopt and he has referred to Sri Kanchumarthi Venkata Seetharama Chandra Rao v. Kanchumarthi Raja and Prem Devi v. Shambhoo Nath. The correctness of the observation made by the learned Judge cannot be disputed. But neither the principle that both the factum of adoption and the authority to adopt may be proved by circumstantial evidence alone i.e. by conduct, repute and recognition etc. nor the consideration that evidence naturally gets lost with the passage of time would justify the acceptance of an oral testimony which merits rejection on account of its inherent improbability or intrinsic defects. The scantiness of direct evidence may certainly, in a fit case, be regarded as having been made up by circumstantial evidence of a convincing nature; but a direct evidence that not only fails to inspire co....
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....t person to state how he has been living and conducting himself since he attained the age of discretion and how others have been treating him. But he has abstained from entering into the witness box and that must give rise to an inference adverse to him. The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give. Further, an acceptable explanation does not appear to be conceivable. So far as the application of Smt. Kalawati and Smt. Chameli is concerned it may easily be that the ladies were given to understand or believed that their father had left the memorandum spoken of in the agreement Exh. B14, that an adoption in accordance with the wish of their father was valid, that Smt. Pushpawati had actually taken Brijendranath in adoption and that it was not open to them to lay any claim to the property of Dal Chand in face of the agreement Exh. B14. An adoption may certainly be said to have been in contemplation at the time of the execution of Exh. B14 and the likelihood would thus be that it would take place but ....
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.... it is devoid of all force and, for a variety of reasons, it has to be rejected. Firstly, the plea that the adoption was governed by Hindu Law as prevalent in the Bombay State was not taken before the trial court and the trial of the suit proceeded throughout on the footing that the adoption was governed by the Hindu Law as administered in this State. Secondly, the plea involves a question of fact and it cannot, consequently be allowed to be raised at this stage. Thirdly, both Damodar Das and Smt. Pushpawati lived at Agra and the adoption too is said to have taken place there and the fact that Dal Chand lived in Bombay is not at all relevant. Fourthly, even in the case of Dal Chand the mere fact that he was living in Bombay in connection with his employment did not amount to migration to the Bombay State and to giving up residence in this State. And fifthly, where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law. i.e., the laws and customs as to succession and family relations prevailing in the State from which it came and this presumption has to be rebutted by showing that the family has adopted the law and usages of th....
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....eal with the plea. The first question to be considered in relation to this plea is whether Exh. B14 amounts to a family settlement. The nature and scope of this family settlement, the elements that go to constitute it, the objects for which it may be entered into, and the things that may form the consideration for it and thus support in law have all been laid down and explained in numerous decisions, but we may refer only to Maturi Pullaiah v. Maturi Narasimham: AIR1966SC1836 ; Ram Charan Das v. Girja Nandini Devi: [1965]3SCR841 and Mst. Dasodia v. Gaya Prasad AIR1943All101 . Let us now examine the circumstances in which Exh. B14 was executed and the purposes it was intended to effectuate. There is nothing to indicate that there was any dispute amongst the members of the family or that any claim and counter claim relating to the property of Dal Chand had been put forward, and it does not at all appear that any future dispute against which the property of Dal Chand had to be preserved or from which the family had to be saved was apprehended. There is also nothing to suggest that the peace of the family was in jeopardy and there was any danger to the harmony and amicable relations....
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....nt of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case. As observed by their Lordships of the Privy Council in Ramsumran Prasad v. Shyam Kumari 49 IA 342 : (AIR 1922 PC 356), the true doctrine is laid down in Mohendra Nath v. Shamsunnessa Khatun 21 Cal LJ 157 : AIR 1915 Cal 629) decided in 1914, and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest." The applicability of the principle laid down by their Lordships is not confined to compromises in suits and it applies with equal force also to family settlements which are not made in or in connection with any suit. Reference in this connection may be made to Mulla's Principles of Hindu Law page 287 (Twelfth Edition). That there is a difference between the position of a person who is a party to a family settlement or claims through a party to it and that of a person who is neither a party nor claims through a party to it has been poin....
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....hpawati. We may refer in this connection to Krishnamurthy Vasudeorao Deshpande v. Dhruwraj [1962]2SCR813 where their Lordships of the Supreme Court held: "The principle of relation back applies only when the claim made by the adopted son relates to the estate of his deceased father ... ... ... ... ... ... When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested." Now, Smt. Kalawati and Smt- Chameli were free to divest themselves of their own interest in the property of their father and an agreement by which they did so might have been binding against them, but the question is whether it would bind the estate and the reversioner. It does appear that they did not care even for their own interest in the property but their indifference towards their own interest would only deprive the agreement all the more of a binding effect on the reversioner. That they did not act from any motive of advantages to themselves would not at all matter if they acted in utter disregard and to the detriment of the interest of the....