- (1.) THE challenge in the instant appeal is to the judgment and decree dated 6.12.90 passed by the learned Addl. District & Sessions Judge No.2, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 36/77, whereby the trial court has decreed the suit of the respondent-plaintiff seeking possession of the suit property from the appellant-defendant.
(2.) THE case of the respondent-plaintiff before the trial court was interalia that late Shri Durga Prasad had two sons, named Shri Devkinandan and Shri Ghasi Lal and one daughter named Narayani Devi. The plaintiff was the daughter of the said Narayani Devi. The said Devkinandan and Ghasi Lal died issueless in the year 1974 and 1934 respectively. One Shri Gaindi Lal and Shri Motilal were the owners of the suit, being three storied house, bearing Municipal No. 1368 situated at Gangapole, Jaipur Chowkri (hereinafter referred to as 'the suit property'). The said owners gifted the said property to the said Shri Devkinandan and Ghasi Lal by executing a registered gift deed dated 18.11.32. It was further case of the plaintiff that her parents died at a very young age and she was brought up by her maternal uncle Devkinandan. The said Devkinandan therefore, had executed a Will dated 9.11.74 bequeathing the said property to the plaintiff and he died on 6.12.74. According to the plaintiff since the said Devkinandan did not have any son, his obsequies ceremonies were performed by the defendant, being a distant male relative, and the defendant therefore stayed in the suit property for some days after the death of Shri Devkinandan. The plaintiff subsequently came to know that the defendant was trying to take possession of the moveable properties and he also tried to open the locker of Devkinandan and that he was also trying to occupy the suit property illegally. According to the plaintiff, she being the sole survivor and being the beneficiary of the Will executed by the said Devkinandan in her favour, was the owner of the suit property. When the defendant refused to vacate the suit property and handover the possession of the same to the plaintiff, the suit for possession was filed by the plaintiff. The appellant-defendant resisted the suit by filing his written contending interalia that he was taken in adoption by the said Devkinandan on 2.5.55 after performing rites and rituals as per the Hindu Law, and hence he had become the owner of the suit property after the death of Devkinandan. It was further contended that he had performed all the obsequies as a son would perform after the death of the father and, therefore, was a lawful occupant of the suit property. According to the defendant, the said Devkinandan had not executed any Will as alleged by the plaintiff and even otherwise he was not keeping a good health in his last days. The alleged Will being not free from suspicion, and having been concocted by the plaintiff, the same could not be relied upon. In short, the defendant had urged to dismiss the suit. The trial court after framing as many as 5 issues and appreciating the evidence on record decreed the suit of the plaintiff vide the impugned judgment and decree as mentioned hereinabove. It has been sought to be submitted by the learned counsel Mr. Amod Kasliwal for the appellant that the trial court had failed to appreciate the evidence on record and decreed the suit in utter disregard of the settled legal position as regards the proof of Will. He submitted that as per the settled principles of law, the burden of proving the attestation and execution of the Will heavily lied on the propounder of the Will i.e. the plaintiff, which she had failed to discharge. According to him the circumstances under which the will was allegedly executed by the said Devkinandan, had created doubt about the genuineness of the execution of the will. He further submitted that the signatures of the testator on the Will were also not genuine inasmuch as the testator used to put his signature as "Devkinandan Sharma" and not 'Devkinandan", which appeared on the Will. He placed heavy reliance on the Pension Payment Order of Shri Devkinandan and other documents to show that the said Devkinandan used to sign as "Devkinandan Sharma" and not "Devkinandan". Mr. Kasliwal also has relied upon the oral evidence of the witnesses examined by the appellant, as also the documentary evidence to show that the said Devkinandan had taken in adoption the appellant after performing the rites and rituals according to the Hindu Law. Mr. Kasliwal has relied upon the judgments of the Apex Court which shall be dealt with hereinafter at the appropriate stage. Per contra, the learned Sr. counsel Mr. R.K. Agrawal for the respondent-plaintiff supporting the judgment and decree of the trial court submitted that the trial court having properly considered the factual and legal aspects of the matter, has decreed the suit of the respondent, which does not call for any interference. Mr. Agrawal submitted that the respondent had adduced the legal and convincing evidence about the execution of the Will and that mere conjunctures of unfounded suspicion should not be permitted to sway the verdict that the Will has been proved. Taking the court to the evidence of the respondent, the witness who had attested the Will and other witnesses examined by the respondent, Mr. Agrawal submitted that the Will in question was proved by the respondent as per the provisions contained in Section 63 of the Hindu Succession Act. As regards the contention raised by the appellant regarding his adoption by the said Devkinandan, Mr. Agrawal submitted that there were major discrepancies and contradictions in the evidence of the witnesses examined by the appellant as regards the deed of adoption, the date, place and the manner in which the appellant was allegedly taken in adoption; and that the said story of having taken in adoption was concocted by the appellant with a view to grab the property of Devkinandan. Mr. Agrawal has also relied upon the judgments of the Apex Court to buttress his submission that none of the near relatives or prominent persons of the village were examined by the appellant to show that he was taken in adoption and that the rights of the legal heirs of the deceased could not be deprived of on the basis of false story of adoption concocted by the appellant.
(3.) THE undisputed facts in the instant case are that the respondent was the sole surviving member in the family of Durga Prasad and was brought up by her maternal uncle Devkinandan, her parents having died at a very young age. It is also not disputed that the two sons of Durga Prasad named Devkinandan and Ghasi Lal died issueless. It is also not disputed that the suit property was gifted to the said Devkinandan and Ghasi Lal by Shri Gaindi Lal and Moti Lal (original owners) by executing registered gift deed on 18.11.32 and thus the suit property was not the ancestral property in the hands of Devkinandan. It is also not disputed that the appellant was not the near relative but was the distant relative of the said Devkinandan. The real questions therefore which are under consideration before this court are - whether the appellant was taken in adoption by the said Devkinandan on 2.5.55 as per the Hindu Law, and whether the said Devkinandan had executed the Will dated 9.11.74 bequeathing the suit property to the respondent? So far as the law of adoption is concerned, a very pertinent observations made by the Apex Court in case of Kishori Lal Vs. Mr. Chaltibai (AIR 1959 SC 504) are reproduced as under :- "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth." It has been further observed in para 16 as under :- "16. Besides the four documents abovementioned the appellant Kishorilal relied on the following facts as instances of admissions and conduct of the respondent Chaltibai. The first is the performance of obsequies by the appellant and the subsequent taking of the appellant in her lap by the respondent. The mere fact of performance of these funeral rites does not necessarily support an adoption. The performance of these rites frequently varies according to the circumstances of each case and the view and usage of different families. The evidence led by the appellant himself shows that in the absence of the son, junior r elations like a younger brother or a younger nephew performs the obsequial ceremonies. As was pointed out by the Privy Council in Tayramal's case, 10 Moo Ind App 429 (supra) the performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it perfectly valid." In the case of Rahasa Pandiani (dead) by LRs. and Ors. Vs. Gokulananda Panda and Ors. (1987) 2 SCC 338 the Apex Court held as under :- "When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious Will, and equally, if not more difficult to unmask. And the court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt." ;