Decided on November 18,1952

PANNALAL Respondents

Referred Judgements :-


Cited Judgements :-



Bapna, J. - (1.)THIS is a first appeal by the defendant in a suit for possession of the property left by one Murlidhar Bijabergi deceased of Pali.
(2.)THE respondent Pannalal sued the appellant Ram Prasad on the allegations that the respondent was adopted by Murlidhar on 'magsar Vadi 14, Smt. 1992 (25-11-1935) and he had executed a deed of adoption on the same date. It was alleged that Murlidhar died on 'magsar Sudi' 1, 'smt. ' 1992 and his widow remained in possession of Murlidhar's property till her death on 'man Sudi' 7, 'smt. ' 1996 and that thereafter, the plaintiff being away from Pali, the defendant wrongfully took possession of the movable and immovable property of the deceased Murlidhar valued at Rs. 15,300/- mentioned in Schedules A to E annexed to the plaint.
The defendant appellant pleaded that the plaintiff had never been adopted by Murlidhar but the plaintiff's father Ram Chander fraudulently obtained a deed of adoption from the said Murlidhar which document was subsequently cancelled by Bamchander and the deed was destroyed before the punches of the community. It was further alleged that Murlidhar about two or three years before his death had taken the defendant in adoption and thereafter the defendant continued to live with Murlidhar and carried on business with him as his son, performed the funeral ceremonies of Murlidhar and his widow, paid off his debts and made considerable improvement on the property. It was urged that the plaintiff was in any case liable to reimburse the defendant in respect of the payments made by the defendant to liquidate the debts of Murlidhar and for making improvements in the property and also for performing certain funeral ceremonies of Murlidhar and his widow. A further plea was raised that the deed of adoption Ex. P-1 produced by the plaintiff had not been properly presented in the Registration Department and was invalid.

The trial court after evidence held that the plaintiff respondent had been adopted by Murlidhar on 25-11-1935 and the registration of the adoption-deed Ex. P-1 was not invalid. It was held that the agreement Ex. D-1 dated 27-7-1936 executed by Ramchander cancelling the adoption of the respondent to Murlidhar was invalid and inoperative against the plaintiff. The adoption of the defendant by Murlidhar was held not proved but it was held that he did get into possession of Murlidhar's immovable property mentioned in Schedule E consisting of a house, an open plot of land and a 'bagichi' situated at Pali. It was not proved that the defendant came into possession of any other movable property of Murlidhar. It was proved that the defendant had 'bona fide' spent Rs. 2442/8/- in repairs of the house, Rs. 2769/2/- in making certain constructions at the 'bagichi', Rs. 912/10/- in connection with funeral ceremonies of the mother of Murlidhar, Rs. 882/11/-for the funeral ceremonies of the widow of Murlidhar and the Court held that the defendant was entitled to be reimbursed for this total sum of Rs. 7006/15/- before making delivery of the property of Murlidhar to the plaintiff. The suit for possession of the immovable property of Murlidhar mentioned in Schedule E was decreed against Ramchander subject to payment of Rs. 7006/15/- by the plaintiff. The parties were left to bear their own costs. The suit having been filed in 'forma paupe-ris', the court-fees were declared to be the first charge on the property of the deceased. The defendant has come up in appeal.

The first point argued by learned counsel for the appellant was that the respondent had failed to prove that the physical act of giving and taking had been performed. Learned counsel for the respondent raised a preliminary objection that this plea was not taken in the trial court or in the. memorandum of appeal and further according to the various rulings of the former Chief Court of Mar-war, the only requirement in the matter of adoption in Marwar was the execution of a deed and getting it duly registered as was done in this case. He relied upon a reported case -' Bakhtawarlal v. Godawari', 1939 MLR 30 (A ). On behalf of the appellant it was conceded that this objection was not taken in the lower court or in the grounds of appeal but he explained that this was due to the fact that the former Chief Court of Marwar had taken a view in a few cases that the ceremony of giving and taking was not necessary in Marwar and therefore it would have been useless to urge that plea unless that judgment could be reviewed by a higher authority, and that he now wanted to take this plea as this High Court was not bound by any erroneous decision of the previous Chief Court.

The question of law raised was whether the physical act of giving and taking was necessary for the validity of an adoption in Marwar, or, in other words, whether the requirement of a registered deed of adoption in Marwar was over and above the requirement of the proof of the physical act of giving and taking for the validity of adoption.

Learned counsel for the parties were granted time and the case was heard at some length and various reported and unreported decisions of the Chief Court of Marwar were cited- Before conclusion of arguments, however, the same point was raised in --'bhajandas v. Natiuram', AIr 1954 Raj 17: (Second Appeal No. 1 of 1952) (B) & learned counsel appearing for the appellant in that case intimated that he would place much more material on record at the time of hearing of his appeal on this question of law. The judgment in this case was reserved.

'air 1954 Raj 17 (B)' has since been heard on this preliminary question and after a review of all the authorities, we have come to the conclusion that the decisions of the Chief Court of Marwar that in Marwar the ceremony of giving and taking is not at all necessary and all that is required is a registered deed of adoption, have laid down a wide proposition if they meant to say that the physical act of giving & taking was not necessary for adoption in Marwar even in cases other than those where the adoptee was an orphan. We have held that the physical act of giving and taking is necessary for the validity of an adoption. We have further held that, in view of the peculiar manners and customs of people in Marwar favouring adoption and Hindu Law not requiring that there should be any particular form so far as giving and acceptance are concerned, in cases where the registered deed of adoption itself mentions that the boy had been given and received in adoption and nothing is shown whereby it may be inferred that the physical act could not take place as mentioned in the deed, a presumption will arise that the recitals in the deed have been truly made. We have pointed out that in such cases it would be for the party challenging the adoption to plead specifically that the physical act of giving and taking had not been performed and to indicate the particular circumstances which would negative the presumption as to recitals being correct and if thereafter he led evidence to show that the physical act could not have taken place as mentioned in the deed, the party relying on adoption is to prove by positive evidence that the physical act of giving and taking did take place.

It may be observed that in some of the Marwar decisions cited before us the adoption of an orphan has been upheld & a question would arise as to who can give an orphan in adoption. The case in 'air 1954 Raj 17 (B)' and the present case are, however, not of orphans and so that question would be left for decision according to custom which may be proved in the particular case.

On the above principles when we look to the document Ex. P-1, which is a certified copy of the deed of adoption, we find that it is addressed by Murlidhar to Ramchander and mentions that Murlidhar had taken in adoption Pannalal, the son of Ramchander, and after mentioning that the adoption had been made with the consent of his two wives and the mother of Murlidhar, it is further mentioned that Ramchander would now have no concern with Pannalal and that Ramchander should, when necessary, instruct Pannalal to abide by the wishes of Murlidhar and his family. The attestation by Ramdhan and Shsiikarlal is stated to be at the instance of both Murlidttar and Ramchander. In the statement before the Registrar, it is further mentioned that Murlidhar had executed the deed after taking in adoption Pannalal son of Ramchander. The tenor of the document shows that the deed was written after the boy had been given in adoption by Ramchander and taken in adoption by Murlidhar. This interpretation is corroborated by Ex. D-3 executed by Ramchander in favour of Murlidhar's widow on 27-7-1936 wherein Ramchander has mentioned that Pannalal had been adopted by Murlidhar by the mutual consent of Ramchander and Murlidhar. Again, in Ex. D-4, which is a document dated 6-1-1939 executed by Mst. Ramrakhi widow of Murlidhar adopting Ramchander, it is mentioned that Murlidhar had adopted Pannalal and executed a deed but subsequently the adoption was cancelled by consent of Ramchander. Unless the defendant could show that the recitals mentioned in the deed Ex. P-1 could not be correct, it is to be presumed that Ramchander gave Pannalal in adoption and Murlidhar took Pannalal in adoption, that is, the physical act of giving and taking had taken place. These circumstances have not been shown. As a matter of fact, the plea was not specifically taken either in the lower court or in the grounds of appeal. It must, therefore, be held that the lower court was right in holding that the adoption of Pannalal had been proved.

It was next argued that the presentation of the deed of adoption executed by Murlidhar in favour of the respondent Pannalal dated 25-11-1935 (copy of which is Ex. P-l) was not in accordance with the provisions of the Registration Act im force and, therefore, its registration was invalid. The law of registration in force at the time was the Marwar Registration Act, 1934, and the provisions relating to presenting documents for registration are practically the same as are found in Part VI of the Indian Registration Act (Act No. 16 of 1908 ).

According to the endorsement on the deed, it appeals to have been presented by Bhuramal on the 26-11-1935 at 11 a. m. in the office of the Sub-Registrar, Pali. Thereafter, the Sub-Registrar, went to the house of Murlidhar, took his statement and registered the deed. It is not mentioned that Bhuramal had any power of attorney in his favour by Murlidhar, and it is contended for the appellant that he was an unauthorised person. The respondent in his evidence said that Bhuramal was the 'am Mukhtar' of Murlidhar, but there is no further proof of his being so.

Learned counsel for the appellant relied on -- 'jambu Prasad v. Aftab Ali Khan', A. I. R. 1914 PC 16 (C ). In that case a deed of mortgage had been presented for registration by one Illahibux who held a power of attorney from the mortgagee which, however, did not empower Illahibux to present documents for registration. On the same day the mortgagors appeared before the Registrar and admitted execution of the mortgage-deed and thereupon the Sub-Registrar registered the deed. Their Lordships observed that: " Executants of a deed who attend the Registrar or Sub-Registrar merely to admit that they have executed it. cannot be treated for the purposes of Section 32 of Act III of 1887 as presenting the deed for registration. " Their Lordships of the Privy Council approved of the decision in -- 'isriprasad v. Baijnath', 28 All 707 (D) in which it was held that: " The terms of Sections 32 and 33 of Act No. III of 1887 were imperative and that the presentation of a document for registration by an agent who has not been duly authorised in accordance with those sections does not give to the registering officer the indispensable foundation of his authority to register the document, and the Sub-Registrar's jurisdiction only comes into force if and when a document is presented to him in accordance with law. "

(3.)THE present case is, however, more in accord with the principle laid down by their Lordships of the Privy Council in -- 'bharat Indu v. Hamid Ali Khan', AIR 1921 PC 93 (E ). In that case, the executant of the document was ill and he sent the deed by a servant, who was not duly authorised, to the Sub-Registrar to be registered. THE Sub-Registrar received the deed on the 4th of November and went personally to the house of the executant on the 6th. He read out the contents of the document to the executant who admitted the execution and ordered that after registration the document might be given to the person in whose favour the document was executed. Lord Phillimore in the course of the judgment said that it was an irregularity on the part of the Sub-Registrar to accept the document as presented by a servant, and to enter, as he ultimately did, the presentation as made on the 4th November instead of the 6th. It was observed that if all that had happened had been that the servant had come as a messenger with the document in his hand from his master, and requested the attendance of the Sub-Registrar at his master's house, because his master was ill, and if the Sub-Registrar instead of lotting the servant carry the document back, had carried it himself, and on reaching the master's house had said to him "do you present this document? If so, do you admit its execution?" no objection could have been taken. THE 'case of Jambu Prasact (C)' was distinguished by his Lordship because in 'bharat Indu's case (E)' it was the person who desired to present and purported to present who took the further step and admitted the execution. It was accordingly held that the presentation by the servant was inoperative but not injurious to the validity of any subsequent presentation and the master was the real presenter on the 6th of November.
In the present case also although the presentation was by Bhuramal, Murlidhar was ill and the Sub-Registrar went to the house of Murlidhar as appears from the endorsement of the Registrar. On questioning, Murlidhar said that he had executed this document after adopting Pannalal and that it may be registered. Thereafter, the endorsement of the Sub-Registrar is that it was registered. All these proceedings took place on the same day, namely, 26-11-1935. Underneath the proceedings of the Sub-Registrar is affixed the thumb-impression of Murlidhar with a note by the Sub-Registrar that the thumb-impression was of Murlidhar, and that he could understand what was said to him and could also speak, but as he could not write, the thumb-impression was taken.

As stated above, the facts of the present case are very similar to those in the case of -' Bharat Indu v. Hamid Ali Khan', (E) and applying those principles, it must be held that the presentation though irregular did not invalidate the registration of the deed of adoption.

No other ground was argued before us.

This appeal, therefore, fails and is dismissed with costs. .

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