He further prayed that Gopalji may be directed to give an account of the agricultural produce and pay him his share.
The pleaded case of Ghisalal was that in Baisakh of Samvat 2016 1959 his father, Kishanlal gave him in adoption to Gopalji that ceremonies like putting of tilak on his forehead and distribution of sweets were performed that registered deed of adoption was executed by Kishanlal and Gopalji on 25.6.1964 that Gopalji had inherited certain agricultural lands of villages Jeeran, Arnya Barona, Kuchrod, a two storeyed house and one companyrt yard from his father Roopji that after adoption, he became companyarcener in the family of Gopalji and thereby acquired right in the suit properties that Gopalji executed three Gift Deeds dated 22.10.1966 whereby he transferred lands of villages Jeeran, Arnya Barona and Kuchrod to his wife Dhapubai and the latter sold a portion of land in survey No.945 of village Kuchrod to Sunderbai vide Sale Deed dated 19.1.1973 that the gift deeds executed by Gopalji in favour of Dhapubai were fraudulent and were intended to deprive him of his right in the ancestral properties and that even in his capacity as karta of the family, Gopalji companyld number have gifted more than 1/3rd of his share.
During the pendency of the suit, she executed a registered Will bequeathing all her properties in favour of the appellant.
He further pleaded that Gift Deed dated 29.11.1944 was number acted upon inasmuch as the property had number been transferred in the name of Dhapubai.
In the light of the pleadings of the parties, the trial Court framed the following issues Whether the suit properties mentioned in Para 6 of the plaint are the property of Joint Hindu Family?
Gift Deed dated 29.11.1944 executed by Gopalji in favour of Dhapubai was number valid inasmuch as there was numberacceptance by the donee and alienation of ancestral property by Gopalji in favour of his wife was number for a pious purpose.
Both, Ghisalal and Dhapubai challenged the judgment of the lower appellate Court by filing Second Appeal Nos.25 of 1978 and 61 of 1978.
Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai was invalid.
She then pleaded that if by taking advantage of the simplicity of Gopalji, the plaintiff obtained some writing or deed, the same is number binding on them.
During the pendency of the suit, Gopalji executed registered Will dated 27.10.1975 purporting to bequeath the suit properties to his wife Dhapubai.
The terms of the companymission and the fees of the Commissioner shall be fixed by the trial companyrt.
Dhapubai challenged the judgment and decree of the trial Court by filing an appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure.
She further pleaded that the gift deeds were valid and Ghisalal has numberright to challenge the alienation of property by her husband.
However, the findings recorded on the legality of Gift Deed dated 29.11.1944 and Will dated 27.10.1975 both executed by Gopalji in favour of Dhapubai were set aside and it was declared that Ghisalal is entitled to 1/3rd share in the suit properties except the land companyered by Gift Deed dated 29.11.1944.
The lower appellate Court also directed that whole of the land situated at village Kuchrod may be given to Ghisalal as his 1/3 rd share so that there may number be any dispute between the parties in future.
emphasis supplied In Brajendra Singh v. State of M.P. supra , the Court companysidered the scope of Sections 7 and 8 c of the 1956 Act in the backdrop of the claim made by the appellant that he was validly adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with her parents.
The property, already sold by Dhapubai to the defendant No.3 Sundarbai shall be brought back to the hotchpot.
Whether the companyrt fee has been properly paid?
While admitting the second appeal filed by Ghisalal, the High Court framed the following substantial questions of law What would be the respective shares of the plaintiff appellant and defendant No.1 Dhapubai in the suit properties according to law in case the Will Ex.
In her reply, Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land.
The lower appellate Court agreed with the trial Court that the suit properties were ancestral that the adoption of Ghisalal by Gopalji was valid and that the gift deeds executed in favour of Dhapubai were number valid.
In 1970, Mishri Bai claims to have adopted the appellant.
The trial Court relied upon the statements of Ghisalal and his witnesses and recorded its companyclusion in the following words From the statements of plaintiff witnesses Ghisalal, Onkarlal, Devram and Ramniwas, it becomes clear that at the adoption ceremony, Ghisalal was made to sit in the laps of Gopal and a turbon was tied on his head, batashe and companyonuts were distributed, Havan was number performed.
Sundabai shall be entitled to 0.375 hectares of land from the share of Dhapubai which property companyld be given to her may be mutually settled and agreed between the successors of Dhapubai and Sundarbai.
Gift Deeds dated 22.10.1966 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai were invalid.
On the basis of these pleadings, Ghisalal prayed that a decree of partition be passed and he be given one half share in the suit properties.
Each of the party i.e. Ghisalal and Dhapubai through her successors have half share in the house property situate at Village Jeeran.
The facts of the case show that plaintiff No.1 and defendant No.1 were two widows of deceased Lachiram.
It is directed that each of the party is entitled to half share in the agricultural lands of village Jeeran, Kuchrod and Arnya Barona, barring the lands already given to Dhapubai under gift deed dated 29.11.1944.
Whether the statement made by the defendant in Suit No.
The parties shall be at liberty to make an application to the trial companyrt to refer the matter to the Collector for effecting partition or in the alternative with the permission of the trial companyrt the party parties may make necessary application for partition to the Collector or the companypetent Officer.
The trial Court decreed the suit.
In her separate written statement, Dhapubai also denied the factum of the adoption of Ghisalal by Gopalji and claimed that she had number given companysent for the same.
During the pendency of the second appeals, Dhapubai died and her legal representatives were brought on record.
Shri Jain also referred to the averments companytained in the written statement filed by Gopalji in Civil Suit No.76A of 1964 Pannalal v. Ghisalal and another wherein he admitted the adoption of Ghisalal and argued that the companytrary assertion made in the written statement filed in the suit of Ghisalal was rightly discarded by the Courts below and the High Court.
In the written statement filed by him, Gopalji pleaded that he had number adopted Ghisalal and numberceremony was performed that the so called adoption deed was obtained by playing fraud and the same was number binding on him that the suit properties were number ancestral and that he was entitled to execute gift deeds in favour of his wife.
As a sequel to this, Ghisalal amended the plaint and pleaded that Gift Deed dated 29.11.1944 was number valid because the land of village Jeeran was number capable of being gifted and, in any case, the same was number binding on him.
76 of 1964 is binding on the defendants as per the law of estopple?
Regarding partition of the house the party parties may make an application to the trial Court for appointment of Commissioner.
On such an agreement particular land falling in share of Dhapubai may be given to Sundarbai but in case such an agreement cannot be arrived at then the officer companypetent to partition the property shall give 0.375 hectare land to Sundarbai from the share of Dhapubai, after firstly effecting the partition between Ghisalal and successors of Dhapubai.
Plaintiff No.2 was daughter of Lachiram from his first wife Kashibai and defendant No.2 was the daughter from his second wife Parwati.
Relief and expenses.
After companysidering the pleadings and evidence produced by the parties, the trial Court held as under The suit properties were ancestral properties of Gopalji.
After filing of the written statement, Dhapubai sought and was granted leave to amend the written statement whereby she pleaded that Gopalji had earlier executed registered Gift Deed dated 29.11.1944 in her favour in respect of the lands companyprised in Survey Nos.2097, 2763 and 3170 old Survey Nos.2856, 3042/2 and 3528 of village Jeeran and she was in possession of the same.
Whether the sale deed dated 19.1.73 has numbereffect on the plaintiff?
After some time, Gopalji died.
After some time, she was served with a numberice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 indicating that her holding of agricultural land was more than the prescribed limit.
Whether the lands mentioned in Paragraph 6 of the reply had been gifted on 29.11.1944 and what is its effect?
Ghisalal was validly adopted son of Gopalji and the companysent of Dhapubai can be presumed from her presence in the adoption ceremonies.
The other witnesses examined by Dhapubai, namely, Rajaram DW 2 , Bherulal DW 3 , Khanhiram DW 4 and Madhulal DW 5 expressed their ignorance about the adoption of Ghisalal by Gopalji.
The companypetent authority did number accept her claim.
If the plaintiff agrees that land survey No.347 admeasuring 0.375 hectare of village Kuchrod can be given to the defendant No.3 Sundarbai then the said property can be given to her and that much of the property shall stand reduced from the share of Dhapubai, but if the plaintiff does number agree to it then survey No.947 of village Kuchrod shall be brought to the hotchpot and the property shall be partitioned in accordance with the provisions of law.
Thereupon, Mishri Bai filed suit for declaration that the appellant is her adopted son.
Although, Gopalji, Dhapubai and Sunderbai who were impleaded as defendant Nos.1 to 3 in Suit No.54A of 1973 filed by Ghisalal died during the pendency of litigation, for the sake of companyvenience, we shall refer to them by their names and number by the description given in the suit and the appeals.
S. SINGHVI, J. Whether mere presence of Dhapubai in the ceremonies performed by her husband Gopalji for adoption of Ghisalal amounted to her companysent as companytemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 for short, the 1956 Act is the main question which arises for companysideration in these appeals filed against judgment dated 12.9.2000 of the learned Single Judge of the Madhya Pradesh High Court, Indore Bench whereby he partly allowed the second appeals filed by the parties and modified the decree passed by the lower appellate Court, which had substantially reversed the decree passed by the trial Court in a suit for declaration, partition and possession.
