- (1.) THIS is a plaintiff' s second appeal in a suit for cancellation of a sale-deed dated July 22, 1966 executed by the second defendant Jagtamba Singh in favour of the first defendant Subedar Singh in respect of certain plots of land detailed at the foot of the plaint.
(2.) THE plaintiff came to court with the allegations that he was adopted on Feb. 9, 1943 by the second defendant Jagtamba Singh as his son, that the property transferred under the sale-deed was ancestral in which he had an interest by birth as a son of Jagtamba Singh; that there was no legal necessity for the sale and his consent not having been taken the sale was liable to be set aside. It was also pleaded that the consideration for the sale was wholly inadequate and indeed the consideration shown in the sale- deed was fictitious and that the execution of the sale-deed was an imprudent act on behalf of the second defendant. THE plaintiff further pleaded that he was in possession over the land covered by the sale-deed but when the first defendant declared on Aug. 10, 1966 that he had obtained a sale-deed executed by the second defendant in respect of the land and would forcibly take possession thereof, he had no option but to file the suit. Both the defendants contested the suit and filed a joint written statement. The execution of the sale- deed was admitted but the other plaint allegations were denied and it was alleged that the plaintiff was never adopted as a son by the second defendant that the plaintiff was the only son of his father Pal Singh and the alleged adoption had never been given effect to; and the plaintiff was ever living with his natural father Pal Singh who was a very clever and cunning person. It was also alleged that the second defendant was not addicted to Ganja and wine nor was he wasting the property; that the plaintiff had no right to interfere with defendant No. 2 in disposing of his property and that even if the plaintiff was proved to be the adopted son of second defendant, he could not be a coparcener with him, that he had no interest in the plots covered by the sale-deed; that the second defendant was indebted to the first defendant and the payment of that debt was the legal necessity for the same; that there was no fraud or undue influence in the execution of the sale-deed and that the first defendant had been in possession over the land ever since the sale. The execution of the sale-deed was alleged to be a prudent act by the second defendant and the possession of the plaintiff over the land covered by the sale-deed was denied. There was a plea that the suit was under-valued and the court-fee paid was insufficient; and the jurisdiction of the court who tried the suit was also challenged. The trial court framed 6 issues. The first issue was : Whether the plaintiff was the adopted son of defendant No. 2. On this issue the trial court held that the plaintiff was not the adopted son of the second defendant Jagtamba Singh. Accordingly the trial court held that he had no interest in the suit property and the second issue was also decided in the negative. On issue No. 3 which was, whether the sale-deed was liable to be cancelled for the reasons mentioned in paragraph 5 of the plaint; the trial court held that in view of the finding that the plaintiff was not the adopted son of the second defendant, his consent was not required for the execution of the sale-deed by the second defendant and further that since the second defendant had himself admitted the consideration for the sale and asserted the fact that the sale-deed was executed for legal necessity and that he made the transfer on a full consideration of its effect, it was not possible to accept the plaintiff' s case on this point. The suit was, in view of these findings dismissed by the trial court. On appeal the lower appellate court has considered only the question whether the plaintiff was the adopted son of Jagtamba Singh and having come to the conclusion that he was not, the lower appellate court did not take the other points into consideration and dismissed the appeal.
(3.) HAVING heard Mr. V. B. Upadhyaya, for the plaintiff-appellant and Mr. R. N. Singh, learned counsel for the defendant-respondents, I am satisfied that the finding of the trial court that the plaintiff appellant was not the adopted son of Jagtamba Singh, the second defendant-respondent, though on a question of fact, is vitiated by errors of law; and consequently the judgment of the lower appellate court is liable to be set aside. The lower appellate court has proceeded to disbelieve the plaintiff' s case on the following considerations:- (i) Pal Singh, the natural father of the plaintiff had proved the necessary formalities relating to adoption and registered deed of adoption, of which he was an attesting witness, but his evidence could not be believed because he was an interested person; (ii) The plaintiff ought to have proved the execution of the adoption deed by producing the other attesting witnesses was withheld on the plea that he was ill and could not come to court; (iii) In face of the denial on oath of the execution of the adoption deed by Jagtamba Singh, the plaintiff ought to have produced expert evidence to prove the adoption deed; (iv) The plaintiff could not take advantage of the presumption under S. 90 of the Indian Evidence Act in respect of the adoption deed. (v) The only other document which was the school leaving certificate dated Sept. 1, 1966, and was marked as Ext. 6, showed that the plaintiff was the son of Jagtamba Singh, could not be believed because the Head Master of the School under whose signatures the certificate was issued had not been examined by the plaintiff as a witness.;