1970 (1) TMI 92 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the plaintiff is the son of Mst. Chameli, daughter of Dal Chand.
2. Whether Dal Chand died as a separate member and whether the property in suit is his self-acquired property.
3. Whether the defendant No. 2 was adopted by the widow of Damodar Das and whether the adoption was valid.
4. Whether the suit is under-valued and the court-fee paid is insufficient.
5. Whether the suit is barred by time.
6. Whether the suit is barred by estoppel and acquiescence.
7. Whether the suit is bad for non-joinder of necessary parties.
8. Whether the plaintiff is entitled to mesne profits, and if so, at what rate.
9. To what relief, if any, is the plaintiff entitled?

Issue-Wise Detailed Analysis:

1. Whether the plaintiff is the son of Mst. Chameli, daughter of Dal Chand:
The learned Civil Judge found that Smt. Chameli survived until 1944 and did not die in 1926 as alleged by the defendants, and that the plaintiff is her son. This issue was decided in favor of the plaintiff.

2. Whether Dal Chand died as a separate member and whether the property in suit is his self-acquired property:
The evidence indicated that Dal Chand had separated from his brothers and the property in suit was his separate property. The sale deed for the four shops in dispute was in Dal Chand's name, and there was no adequate nucleus of family funds that could lead to the acquisition of the shops. This issue was decided in the affirmative, favoring the plaintiff.

3. Whether the defendant No. 2 was adopted by the widow of Damodar Das and whether the adoption was valid:
The most crucial piece of evidence was a registered agreement (Exh. B14) executed shortly after Dal Chand's death. The agreement indicated that Dal Chand expressed a wish for Smt. Pushpawati to adopt a son, but no direct evidence supported the authority of Damodar Das to permit such adoption. The oral evidence presented by the defendants was found to be unreliable. The court concluded that Brijendra Nath was not duly adopted by Smt. Pushpawati, and even if an adoption took place, it was invalid as Smt. Pushpawati had no authority to adopt. This issue was decided against the defendants.

4. Whether the suit is under-valued and the court-fee paid is insufficient:
This issue had already been decided as a preliminary issue by the predecessor in office of the learned Judge, and the deficiency in court-fee was made good by the plaintiff.

5. Whether the suit is barred by time:
The suit was held to be within time, and this issue was decided against the defendants.

6. Whether the suit is barred by estoppel and acquiescence:
The plea of estoppel and acquiescence was found to have no force and was decided against the defendants.

7. Whether the suit is bad for non-joinder of necessary parties:
This issue was also decided against the defendants, indicating that the suit was not bad for non-joinder of necessary parties.

8. Whether the plaintiff is entitled to mesne profits, and if so, at what rate:
Given the finding on issue No. 3, the findings of the learned Civil Judge on issues Nos. 8 and 9 were against the plaintiff, and his suit was initially dismissed. However, the appellate court found that the plaintiff is entitled to mesne profits for three years preceding the date of the suit and for pendent lite and future mesne profits until the date of delivery of possession to the plaintiff.

9. To what relief, if any, is the plaintiff entitled:
The appellate court allowed the appeal with costs, set aside the decree of the learned Civil Judge, and decreed the suit of the plaintiff for possession of the properties in suit. The plaintiff was also granted a decree for mesne profits against defendant No. 2 for the specified period. The amount of mesne profits payable to the plaintiff by defendant No. 2 was to be determined by the trial court, and a final decree in respect of the amount due was to be passed in favor of the plaintiff against defendant No. 2 upon payment of the requisite court-fee.

Conclusion:
The appeal was allowed, the initial decree was set aside, and the plaintiff was granted possession of the properties along with mesne profits. The appellate court emphasized the invalidity of the adoption and the imprudence of the agreement Exh. B14, which did not bind the estate or the reversioner.