- (1.) SUNIL Ambwani, J. This Second Appeal arises out of judgment and decree dated 16-2-1978 by which the 1st Additional Civil Judge, Meerut dismissed Civil Appeal No. 265 of 1974 against the judgment and decree dated 30-9-1974 passed by Munsif Havali, Meerut in Original Suit No. 548 of 1962 decreeing the Suit for possession, future damages at the rate of Rs. 50/- per month and Rs. 20/- per month as damages from 1-11-1962 to 12-11-1962 with costs and to recover the damages after payment of Court fees and execution. The issue of limitation was decided as issue No. 6 vide order dated 7-12-1970.
(2.) THIS Court did not frame any substantial question of law at the time of admission of this Second Appeal on 27-2-1978. Learned Counsel for the appellant has filed an amendment application dated 14-1- 2005 for adding 11 grounds as substantial question of law to be decided in this Second Appeal. Sri R. S. Misra, learned Counsel for the respondents has objected to the amendment at this stage. The application was allowed. However, only following grounds are found to be substantial questions of law arising from the pleadings and evidence of the case to be considered and decided in this Second Appeal; " (1) Whether the fiction in law for adoption for tenant's father, who had died before adoption would come to the benefit of the adopted son for challenging the sale-deed which was executed by his mother before he was adopted. (2) Whether in absence of claiming relief for cancellation of sale-deed and the consequential refund of sale amount under Section 31 and 33 of the Specific Reliefs Act. The registered sale-deed could be declared to be void on the ground that there was no legal necessity to execute the sale-deed of the property which belonged to minor through adoption deed executed subsequently to the sale-deed. (3) Whether sale-deed dated 22-11-1943 was executed by Smt. Hardevi, widow of Ch. Raghubir Singh for legal necessity to discharge the antecedent debt by registered mortgage deed of 1928 executed by Ch. Raghubir Singh, her husband for payment of Rs. 500/- as land revenue" Heard Sri Sankatha Rai, learned Counsel for the appellants and Sri R. S. Misra learned Counsel for respondent. Sri Surya Dev, the plaintiff respondent Original Suit No. 548 of 1962 for possession over the 'haveli' shown at the foot of the plaint, and for recovery for damages with the allegations that late Ch. Raghubir Singh and his wife Smt. Hardevi had no issue. Ch. Raghubir Singh wanted to adopt the first son of his sister's son Ch. Krishna Swarup, who lived with Ch. Raghubir Singh and got education there. Ch. Raghubir Singh fell ill before any child was born to Ch. Krishna Swarup. His condition suddenly became serious. He was not in a position to leave a will or a written order. He called his wife Smt. Hardevi, in the presence of family members and asked her to adopt the first son of Ch. Krishna Swamp after his death. He died in 1937 leaving all his movable and immovable properties to his wife. Her name was mutated in the revenue records against the lands of Ch. Raghubir Singh. She was an old and pardanshin lady. Smt. Brahma Devi wife of Shyam Singh, devrani of Smt. Hardevi with the help of his brother Mool Chand used to look after the properties. They wanted to grab her properties and thus got their names mutated with the name of Smt. Hardevi on 46 bighas, 16 biswas land left by Ch. Raghubir Singh, and thereafter Smt. Brahma Devi as Manager and Karkun executed a patta of 15 bighas land in favour of defendants. Smt. Brahma Devi thereafter got sale- deed executed on 22-11-1943 for Rs. 2100/- from Smt. Hardevi in the name of Chander Bhan, Smt. Khubia, Jeeraj and Tareef Singh purportedly showing that they needed money for taking care of mortgage of Rs. 500/- as land revenue whereas she had no such need as her husband had left 100 bighas of land, cattle and other movable properties and iron boxes and ornaments with annual income of not less of Rs. 8000/ -. The cost of disputed house was not less than Rs. 4500/- and that it was sold without any legal necessity.
(3.) A son was born to Ch. Krishna Swarup on 1-12-1941. Smt. Hardevi, honoured to desire of her late husband, and adopted the child Surya Dev, the plaintiff on 11-6-1944 in accordance with to Hindu rites. After the death of Smt. Hardevi, the plaintiff respondent got possession of all her properties and filed the suit on 13-11-1962 at the age of 20 years and 11 months for possession of the land sold by sale-deed dated 22-11-1943, allegedly without any legal necessity.;