BISWANATH AGARWALLA Vs. SM. DHAPUR DEBI JEJODIA
LAWS(CAL)-1960-2-31
HIGH COURT OF CALCUTTA
Decided on February 10,1960

BISWANATH AGARWALLA Appellant
VERSUS
Sm. Dhapur Debi Jejodia Respondents

JUDGEMENT

P.C.MALLICK, J. - (1.) THIS is a suit for a declaration that plaintiff is the adopted son of one Ramprotap Udhani and as such entitled to his estate. There is also the prayers for possession, for injunction, damages and accounts. The defendants impleaded are, Dhapu Debia daughter of Ramprotap and her husband Chandanmul Jajodia. The allegations made are that Munia Debi. widow of Ramprotap, on 25 -9 -1950 adopted the plaintiff as a son of Ramprotap. It is alleged that Munia Debi had authority to adopt though it is not stated when such authority was given and whether it was oral or in writing. The. plaintiff is the grandson of Ramprotap by his daughter Rukmini Debi. Rukmini died in December 1949 prior to the adoption. It is pleaded that 'according to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughter's son can be validly given and taken in adoption.' Munia Debi, Ramprotap's widow died on 5 -3 -1956. On Ramprotap's death, Munia along with her son Ghasiram became entitled to the estate of Romprotap in equal share in 1940. On the death of Ghasiram in 1943, Munia inherited Ghasiram's estate as well and till her death Munia was in control and management of the entire estate. It is alleged that Munia had no stridhan property. After Munia's death the defendants are alleged to have wrongfully taken possession of the estate of Ramnrotan and Gbasirami, to have surreptitiously removed the moveables including Ornaments, jewelleries and utensils, have realised and are still realising the rents of the immovable properties in denial of the plaintiff's title as the adopted son of Ramprotap. As part of theestate left by Ramprotap is situate outside the jurisdiction of this Court, leave under Clause 12 of the Letters Patent has been obtained. Ramprotap had another daughter Sm. Ganapaty Saraogi by a predeceased wife. At the time of death of Munia, Ramprotap had no son living, but two daughters, namely, the defendant and the said Ganapati Saraogi. The only other daughter, namely. Rukmini, the mother of the plaintiff died in November 1949 prior to the death of Munia Debi. On the application of Ganapati this Court by an order dated 20 -3 -1957, directed that Ganapati be added as a defendant and the plaint amended accordingly. Subsequently on the plaintiffs application the plaint was further amended by an order dated 2 -2 -1959. The object of the last amendment is to challenge the deed of trust executed by Munia Debi inter alia in favour of her daughter Dhapu in respect to a very valuable immovable property of the estate being premises Nos. 1 and 2, Tagabandhu Bural Lane purchased on 15 -5 -1928. The property appears to have been purchased by Munia Debi and the conveyance is in her name. Allegations are introduced in the plaint by the subsequent amendment that the said property was purchased by Rampratap in the benami of his wife Munia and that the defendant Munia had no title of her own to create the trust in favour of her daughter Dhapu. It is to be noted that though the suit was instituted originally after obtaining leave under Clause 12 of the Letters Patent, no further leave under Clause 12 was obtained for either of the amendments effected.
(2.) IN due course Dhapu and Chandanmull filed a written statement jointly. Leave was given to them to file additional written statements after the amendments. The defendant Ganapati filed her own written statement after being added as a party. There are altogether four written statements on record three by the two original defendants Dhapu and Chandanmull and one of Ganapati. In their written statements, the defendants Dhapu and Chandanmull denied that Munia had any authority to adopt, that there was any custom to give and take a daughter's son in adoption, or that there was in fact an adoption. All allegations of wrongful conduct made against them have been denied. It is contended that Dhapu had inherited the estate of Rampratao as his heir at law after the death of Munia. Benami is denied and it is alleged that the premises Nos. 1 and 2, Jagabandhu Bural Lane was the property of Munia purchased with ber stridhan money and as such she was competent in law to create the trust in favour of Dhapu. It is further pleaded in the additional written, statement that even if the property was purchased by Rampratap with his own money in 1928, he by his act and conduct led the defendant Dhapu to believe that the property belonged to Munia having been purchased with her stridhan money and that the defendant Dhapu acted upon the said belief. In consequence Rampratap and his successors in interest are estopped from denying that the property was purchased with Munia's own money. A further case is made that in any event Munia acquired title to the said property by adverse possession. It is pleaded that the suit is not maintainable, is bad for non -joinder of necessary parties and is barred by limitation and that! this Court has no jurisdiction to entertain this suit.
(3.) GANAPATI in her written statement also denied that Munia had any authority to adopt or that she could or in fact did adopt the plaintiff. She contended that as the heir of Rampratap she is entitled to one quarter of the estate on this basis that on Rampratap's death Munia inherited half the estate, the remaining half having been inherit -ed by Ghasiram and that on the death of Munia, Ganapati along with Dhapu as the two heirs of Rampratap inherited equally to the estate of Rampratap. In the result, she is entitled to a quarter of the estate and the remaining three quarters belong to Dhapu as the heir of Rampratap one quarter and as the heir of Munia half inherited from Ghasiram. Ganapati denied that the premises Nos. 1 and 2, Jagabandhu Bural Lane belonged to Dhapu or that the same was purchased with the stridhan money of Munia.;


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