Raghunandan Chaudhary v. Madho Singh Yadav

For the Appellant/s : Mr. Surendra Kumar Mishra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 6 08-02-2013 Heard Mr. Yogesh Chandra Verma, the learned senior counsel appearing for the appellant.

2. The plaintiff is the appellant in this appeal against the 2 Patna High Court SA No.715 of 2010 (6) dt.08-02-2013 judgment and decree of affirmance by which the dismissal of the suit by the trial court has been upheld.

3. The plaintiff filed the suit for declaration that the sale deed for the suit property executed by Shiv Lal Choudhary in favour of the defendants is without any title and not binding on the plaintiff.

4. As the factual matrix would unveil, Hema Choudhary had two sons, namely Jeew Lal Choudhary and Shiv Lal Choudhary. The plaintiff Raghunandan Choudhary is son of Shiv Lal Choudhary. His case is that Jeew Lal Choudhary had no issue, and so he adopted the plaintiff and also executed a deed of Will on 5-3-1945 in favour of the plaintiff wherein the fact of adoption has also been mentioned. On this basis the plaintiff has claimed his title over the property of Jeew Lal Choudhary after his death in the year 1948.

5.The defendants contested the claim of the plaintiff and denied the fact that the plaintiff Raghunandan Chaudhary was adopted by Jeew Lal Choudhary.

6. Both the courts below have come to the concurrent finding that the plaintiff has failed to establish his adoption by Jeew Lal Choudhary. It has also been held by both the courts below that the said Will dated 5-3-1945 has not been probated and 3 Patna High Court SA No.715 of 2010 (6) dt.08-02-2013 therefore no title over the property mentioned therein, could be established in a court of law in view of Section 213 of the Indian Succession Act.

7. Mr. Verma, the learned senior counsel has submitted that the question arising in this appeal relates to the validity of adoption as well as the right acquired by the plaintiff over the suit property by deed of Will. It has been urged by the learned senior counsel that the contents of the said document can be looked into for establishing the case of adoption, even if no probate has been obtained of the Will. Criticizing the impugned judgments further, it has been asserted that both the courts below have not looked into that aspect of the matter and therefore the findings are vulnerable.

8. After perusing the impugned judgments and considering the submission of the learned senior counsel, it is manifest that the plaintiff claims his title over the property of the deceased Jeew Lal Choudhary on the basis of his adoption as well as on the basis of Will executed by Jeew Lal Choudhary. There is a statement in the Will dated 5-3-1945 that the plaintiff has been adopted by Jeew Lal Choudhary. But,there is no statement in the said document that the plaintiff was given in adoption by his natural parent to the adoptive father Jeew Lal Choudhary. According to the customary 4 Patna High Court SA No.715 of 2010 (6) dt.08-02-2013 Hindu Law, ‘the giving and taking’ is one of the necessary ingredients for establishing a valid adoption. Both the courts below have recorded the finding that there is no evidence led by the plaintiff in this regard to establish the fact that he was given in adoption by his natural parents. Moreover, the recitals in the Will(Ext.4) which has been relied upon on behalf of the appellant and also quoted in the impugned judgment of the appellate court, also do not show that the plaintiff was given in adoption to the adoptee-father by his parents. The only mentioned fact is that Jeew Lal Choudhary had taken the plaintiff in adoption, out of his own will but this fact alone will not be sufficient to constitute a valid adoption. Further, the trial court has taken into notice the plaint wherein the plaintiff has described himself as the son of Shiv Lal Choudhary. The suit has been filed in 1989 and the alleged adoption has taken place, according to the plaintiff, in 1945 and therefore this statement creates a doubt over the case of adoption, as set up by the plaintiff. Even in his deposition as P.W.8 the plaintiff has described himself as son of Shiv Lal Choudhary. The inevitable inference has rightly been drawn by the courts below that the case of adoption, as set up by the plaintiff, could not be proved. No perversity in the findings of the courts below could be established on behalf of the appellant. 5 Patna High Court SA No.715 of 2010 (6) dt.08-02-2013

9. Further, it is the admitted position that the Will dated 5- 3-1945 is still not probated. Therefore on that basis no right or title over the immovable property can be established in view of section 213 of the Indian Succession Act. Even otherwise also, the original Will has not been produced by the plaintiff and no attesting witness has also been examined. The oral evidence in support of the execution of the Will and subsequently the deed of Will having gone missing, has not been believed by both the courts below after scrutiny and it has been held that alleged Will(Ext.4) is suspicious. In this view of the matter, there is no force in the submission on behalf of the appellant that the recitals in the deed of Will(Ext.4) should be relied for accepting the case of adoption. It is manifest therefore that the issues arising between the parties have now been concluded by the concurrent findings of fact .

10. Thus, I find that there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. B.Roy/- (V. Nath, J)