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TMI Blog1970 (1) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... t the property in suit was owned exclusively by Dal Chand and upon his death, which took place in August 1914, it devolved upon his two daughters because his son had predeceased him. Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had been married outside Agra. The property was, therefore, being managed by Pannalal and Nathilal, nephews of Dalchand, on behalf of the two daughters. It has further been alleged that under an agreement dated September 2, 1914 the rent of the shops in suit, which were all in the occupation of tenants, used to be realised by Pannalal and Nathilal as agents of Smt. Kalawati and Smt. Chameli but the said agreement is not binding on the plaintiff. Smt. Kalawati is said to have died in 1925 and Smt. Chameli on April 30, 1944 and the plaintiff claims to have succeeded to the property after Smt. Chameli's death. It has also been stated by the plaintiff that Pannalal and Nathilal and, after their death, Pannalal's sons, Virendra Nath defendant No. 1 and Brijendra Nath defendant No. 2, had been rendering some slipshod accounts of the realisations made by them from the tenants and paying some petty amounts to Smt. Kalawat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant No. 2 was adopted by the widow of Damodar Das deceased as alleged 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 estopped and acquiescence? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the plaintiff is entitled to mesne profits, if so, at what rate? 9. To what relief, if any, is the plaintiff entitled? 5. On the evidence led in the case the learned Civil Judge felt bound to hold that Smt. Chameli survived till 1944 and did not die in 1926 as alleged by the defendants and that the plaintiff is her son. Issue No. 1 has accordingly been decided in favour of the plaintiff. On issue No. 2 as well the learned Judge has recorded a finding in favour of the plaintiff. He has held that the evidence shows that Dal Chand had separated from his brothers, that the property in suit was his separate property, that the sale deed by means of which the four shops in dispute had been acquired were in the name of Dal Chand and that there was no adequate nucleus of family funds or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (widow of Damodar Das). Since much turns on the effect and implication of this deed of agreement we reproduce below an English translation of the deed from the paper book. We, Mst. Natho alias Kalawati. wife of Pandit Moti Lal, and Mst. Chameli, wife of Ranchhor, daughters of Pandi Dal Chand and Mst. Pushpawati widow of Damodar Das son of Dal Chand, caste Brahmin, resident of Bhairo Belanaganj, Agra do declare as follows: Pandit Dal Chand, our ancestor is dead and has left behind 4 shops situate in Noori-Darwaza, Agra, bounded as given below and Provident Fund of about Rs. 5000/- besides debts and move-able goods and a memorandum by way of a will has been found with Babu Ram Charan Das. Although Panditji deceased could not duly complete the will in his life time we are gladly agreeable to be bound by it and to act according to it, and we consider it our duty to be bound by it. We, have, therefore, while in a sound state of body and mind, while in proper senses, of our own accord and free will, do covenant and give in writing that in accordance with the desire of Pandit Dal Chand deceased we shall be bound to the following for ever: (1) Mst. Pushpawati will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough the memorandum was by way of his will Pandit Dal Chand could not duly complete his will during his life time. The memorandum is not on record and defendant No. 2 nowhere pleaded that Dal Chand made a will or that the memorandum constituted a will and took effect as such and that in the absence of that will its terms may be ascertained from the deed of agreement Exh. 14. It is true that defendant No. 1 stated in paragraph 17 of his written statement that Dal Chand left a will whereby he gave some moveable property such as debts etc. to his son's widow, Smt. Pushpawati, and also corroborated and repeated the permission of his son Damodar Das to Smt. Pushpawati to adopt a son; but no evidence whatsoever has been given in support of this allegation, and the contents of agreement Exh. B14 to show that there was no completed will and that no moveable property was bequeathed by Dal Chand to Smt. Pushpawati and to her daughter Premwati as alleged by defendant No. 1 in his written statement. The position, therefore, clearly is that it is not possible or permissible to treat Exh. B14 as evidence of any will made by Dal Chand. While dealing with issue No. 9 the learned Civil Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, seem to us to be entirely destructive of the theory of an authority to adopt given by Damodar Das and, at any rate, so strongly suggestive of a contrary inference that oral evidence of only an unimpeachable and a most satisfactory nature can displace that inference. The evidence of Jwala Prasad is very far from being of that nature and, indeed, it is to our mind wholly unfit for reliance and untrue. 14. Before adverting to the evidence relating to conduct with a view to see to what extent, if any, the alleged adoption was accepted or recognised, we propose to examine the direct oral evidence in regard to the factum of adoption. That evidence consists of the testimony of two persons viz. D. W. 3 Jwala Prasad, whose statement in regard to the authority to adopt we have already discussed and rejected, and D.W. 4, Laxmi Narain. Both these witnesses deposed to the performance of ceremonies of adoption and to their having been present on the occasion. The statement of Jwala Prasad relating to the permission for adoption has been found by us to be altogether unacceptable and positively untrue and we consider him to be a wholly unreliable witness. We would, however, refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efects. The scantiness of direct evidence may certainly, in a fit case, be regarded as having been made up by circumstantial evidence of a convincing nature; but a direct evidence that not only fails to inspire confidence but also appears to be definitely untrue cannot be accepted by reason of the consideration that no better evidence might have remained available because of lapse of time. It is the paucity of direct evidence and not its falsity that may be supplemented or filled by circumstantial evidence. The reason why we do not accept the oral evidence either as to the fact of adoption or as to the authority to adopt is not that it is insufficient but that it does not at all impress us as true and it proceeds from witnesses whom we do not consider trustworthy. We may repeat that so far as the evidence relating to the authority to adopt is concerned, it is also negatived by the agreement Ex. B14. 16. We may now examine the evidence regarding the course of conduct of persons whose conduct may be relevant in determining whether an adoption took place and whether Smt. Pushpawati had the requisite authority to adopt. The learned Civil Judge has referred in his judgment to most of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dal Chand in face of the agreement Exh. B14. An adoption may certainly be said to have been in contemplation at the time of the execution of Exh. B14 and the likelihood would thus be that it would take place but even according to the evidence led by the defendants the adoption was postponed for about four years. Could it not be that an agreement having been obtained from the daughters who were living in distant places with their husbands the idea of an actual adoption was given up the properties of Dal Chand, Pannalal and Nathilal were all enjoyed and treated on the same footing, Brijendranath was not made to lose his share in his father's property and in the property of his uncle, Nathilal, who had no son, and Brijendranath was only described as the adopted son of Damodar Das when the need for such a description arose in order to support a claim in respect of Dal Chand's property? We think that the evidence relating to the conduct of the persons concerned and to acceptance and recognition of the alleged adoption is such that the adoption cannot be said to have been established. Even if, however, the fact of adoption is regarded as inferable from the circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . i.e., the laws and customs as to succession and family relations prevailing in the State from which it came and this presumption has to be rebutted by showing that the family has adopted the law and usages of the State to which it has migrated -- vide Mulla's Principles of Hindu Law page 89 (Twelfth Edition) --and there is nothing on record to rebut the presumption. 19. It was then contended for the defendants-respondents that the agreement embodied in Exh. B14 amounted to a family settlement and as such it is binding on the plaintiff. It would appear from the judgment of the learned Civil Judge that this plea was attempted to be raised at the stage of argument before him but the learned Judge did not allow it to be raised and observed: Another point raised was that the agreement Exh. B14 operated as a family settlement binding on reversioners. This plea also involves questions of fact and when it is not raised in that way in the written statement it is difficult to entertain it at the stage of arguments. Various questions of fact would be relevant before it can be stated that the family settlement is a bona fide one so as to bind the reversioners. In fact during a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or from which the family had to be saved was apprehended. There is also nothing to suggest that the peace of the family was in jeopardy and there was any danger to the harmony and amicable relations amongst its members. Further, the parties to the agreement were fully cautious of the fact that the memorandum referred to in Exh. B14 did not amount to a will and it possessed no legal efficacy. The argument on behalf of the defendants respondents was that although there might have been no present dispute to be settled or likely future dispute to be avoided the possibility of some dispute at some future point of time could not be ruled out and that possibility should also be taken into account. Such a possibility, we may say, will always be there so long as a family owns some property, but it is not that remote and hypothetical possibility that is to be considered in judging whether an agreement partakes of the nature of a family settlement. If that were; so, all agreements, irrespective altogether of their nature, by members of a family -- and 'family' has a wide connotation in this context -- would be family settlements. Such a view of family settlements does not appear to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position of a person who is a party to a family settlement or claims through a party to it and that of a person who is neither a party nor claims through a party to it has been pointed out by the Supreme Court in Sahu Madho Das v. Mukand Ram 21. Was then the agreement Exh. B14 prudent and reasonable--judged not from the point of view of benefit to Smt. Kalawati and Smt. Chameli but from the point of view of benefit to the estate? The answer seems to us to be clearly in the negative. The daughters, according to the recitals in the deed, knew that the memorandum referred to in Exh. B14 did not amount to a will and could not operate as such. The result obviously was that the property of Dal Chand would have gone to them as daughters and then to their sons as reversioners. They, however, gave no thought to or ignored the legal position altogether and in their desire to respect the wishes of their deceased father they executed an agreement embodying those wishes. For them prudence, reasonableness and benefit to the estate were entirely out of question and the sole consideration guiding them was to let things be as their father desired them to be in the memorandum which, they believ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That they did not act from any motive of advantages to themselves would not at all matter if they acted in utter disregard and to the detriment of the interest of their estate. What would have been the result if they had not entered into the agreement Exh. B14? The property would have remained theirs and the plaintiff would have succeeded to it after their death. The memorandum was not a will and even if there were a will of Dal Chand there could be no valid disposition thereunder in favour of a person who might be adopted by Smt. Pushpawati if she so chose and under an authority which Dal Chand was not competent to confer. We are, therefore, clearly of the opinion that the agreement incorporated in Exh. B14 was imprudent, unreasonable and prejudicial to the estate and it does not in any manner affect the rights of the plaintiff. We may also observe here that Exh. B14 was not an agreement by which an adoption which had already taken place was accepted as valid but an agreement by means of which an invalid authority for any adoption was virtually sought to be conferred by persons totally incompetent to do so. 22. There is nothing to indicate that there was any ratification of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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