Syed Md. Mahfooz Alam, J.
1. This Second Appeal has been preferred against the judgment and decree dated 3rd January, 1989, passed by Sri Basudeo Sahay, 3rd Additional District & Sessions Judge, Saharsa, in Title Appeal No. 20 of 1981 whereby he has been pleased to reverse the judgment and decree dated 14-9-1981 passed by Sri Chakrdhar Rai. Subordinate Judge, Saharsa, to Title Suit No. 31 of 1975 and after allowing the appeal dismissed the suit of the plaintiffs.
2. The brief facts of the case is that appellant Gauri Shanker Pd. Singh and Pachkhori Singh, who were plaintiffs in Title Suit No. 31 of 1975 filed suit for partition of the properties described in Schedule of the plaint claiming 1/3rd share and for declaration that the original defendant Most Bindabati was entitled for maintenance only. During the pendency of the suit, original defendant Most. Bindabati died and thereafter one Baid Nath Pd. Singh filed petition for impleading him as intervenor defendant. The said petition was allowed and he was made intervenor defendant and at present he is contesting the suit. After the death of Bindabati and after addition of intervenor-defendant the plaintiffs filed amendment petition and claimed that they along with the defendant 1st set are entitled to inherit the properties of Bindabati being the nearest agnets. The plaintiffs suit was decreed and the share of the plaintiffs was declared as 1/3rd in Schedule I and II properties on the basis of the finding that the plaintiffs and defendant 1st set are nearest agent of deceased Most. Bindabati Devi. But in appeal the above findings were reversed and the plaintiffs' suit was dismissed.
3. According to the case of the plaintiffs, one Tek Narain Singh of village Pastpar. District Saharsa was the common ancestor of the plaintiffs and defendant Nos. 1 to 7. He had two wives. From his first wife he had one son Badri Narain Singh and from his second wife he had two sons, namely, Ram Naraian Singh and Dharam Narain Singh. Ram Narain Singh separated from his two brothers long ago and on partition he was allotted a separate Tauzi bearing No. 5780 of village Pastpar. However, he died issue-less. On his death, his property devolved upon his brothers. After some time Badri Narain Singh and Dharm Narain Singh also separated, Badri Narain Singh died before cadestral survey leaving behind him his three sons, namely. Maha Prasad Singh, Gore Prasad Singh and Ram Prasad Singh, who continued to be joint, Gore Prasad Singh died before cadestral survey leaving behind him his only son Harihar Prasad Singh. Ram Prasad Singh also died in the estate of jointness with his brother Maha Prasad Singh and nephew Harihar Prasad Singh along with his widow Ram Payari Devi. The property of Ram Prasad Singh devolved on Maha Prasad Singh, his full brother. The widow of Ram Prasad Singh, namely, Ram Payari Devi was allowed to receive maintenance only. The said Ram Payari Devi died in the year 1962. Maha Prasad Singh died leaving behind him one son Ganga Prasad Singh. The said Ganga Prasad Singh had three sons, namely, Sarjug Prasad Singh (defendant No. 1), Purshottam Singh (defendant No. 2) and Gauri Shankar Prasad Singh (plaintiff No. 1). Saryug Prasad Singh had a son, namely, Sunil Singh (defendant No. 3). Purshotam Singh had four sons, namely, Vinay Kumar Singh (defendant No. 4), Vinit Kumar Singh (defendant No. 5), Anit Kumar Singh (defendant No. 6) and Arbind Kumar Singh (defendant No. 7), Gauri Shankar Prasad Singh has a son, Panchkauri Singh, who is plaintiff No. 2 in the suit.
Further case is that in the year 1913, Harihar Singh died in the estate of jointness with his brother Ganga Prasad Singh and his nephew (all sons of Ganga Prasad Singh). He died leaving behind him his widow Most. Bindabati Devi, who was impleaded as defendant No. 8 in the suit but as she died during the pendency of the suit, her name was expunged. After the death of Harihar Prasad Singh, Ganga Prasad Singh, the father of plaintiff No. 1 inherited his entire property by survivorship. The widow of Harihar Prasad Singh, Most. Bindabati Devi, had no right, title and interest in the properties of Harihar Prasad Singh and she was simply a maintenance holder and entitled to get maintenance from the plaintiffs as well as from defendant Nos. 2 to 7.
Further case is that Most. Bindabati Devi was living jointly with Ganga Prasad Singh and was getting maintenance but at the instigation of the enemies of Ganga Prasad Singh, she expressed her desire to live separately and started demanding share in zamindari and agricultural land. Accordingly, she was given 5 Bighas of land of village Mohanpur along with share in the Zamindari of Mauza Pastpar Tauzi No. 4172 described in Schedule II of the plaint. It is the specific case of the plaintiffs that Most. Bindabati Devi had a right of maintenance only and she was not authorised to dispose of the property. At the time of separation in the year 1925, Bindabati Devi assured that she would not dispose of any of the properties. After separation the name of Bindabati Devi was entered into the survey Khatiyan in the year 1928-29 with respect to the lands of village Mohanpur. Her name was also entered into Register-D with respect to her shares in Tauzi No. 4172 as landlord and after vesting of Zamindari she received compensation from the Government. Further case is that Schedule I properties of the plaintiffs and defendant Nos. 1 to 7 remained joint. In the year 1954, Ganga Prasad, father of plaintiff No. 1 died and thereafter the plaintiffs and defendant Nos. 1 to 7 separated in mess and living but no partition took place by metes and bounds. The plaintiffs requested the defendants to partition the land but the defendants did not listen to, hence, necessity of filing of the suit arose.
3-A. The defendant Nos. 1 to 7 appeared in the suit and filed written statement. The defendant No. 8 Most. Bindabati Devi although appeared in the suit by filing vakalatnama but before she could file any written statement she died. After the death of defendant No. 8, one Baid Nath Prasad Singh, claiming to be the karta Putra of Most. Bindabati Devi, filed a petition praying therein to implead him as intervenor-defendant. The said petition was allowed by order dated 15-11-75 and the said Baid Nath Prasad Singh was made defendant No. 9 in the suit as intervenor defendant.
After the death of Most. Bindabati Devi and after Baidnath Pd. Singh was impleaded as intervenor-defendant the plaintiffs sought amendment in the plaint claiming properties of Bindabati Devi being the nearest reversioners going back from the original stand that Most. Bindabati was joint and she was simply maintenance holder. Thus, presently the case of the plaintiffs is that Most. Bindabati Devi was separate and she was the absolute owner of her property but the plaintiffs and defendant Nos. 2 to 7 being the nearest reversioners are entitled to inherit the properties of Bindabati Devi and are also entitled for partition of the said property besides other property.
From the perusal of written statement of defendant Nos. 1 to 7, it appears that they have supported the case of the plaintiffs and they have denied that intervenor defendant Baid Nath Singh was ever adopted by Most. Bindabati Devi as her Karta Putra. They have also denied that Baid Nath Prasad Singh had come in possession of the properties left by Most. Bindabati Devi and claimed that they are in possession of the properties left by Most. Bindabati Devi.
4. The case of the intervenor defendant is that the husband of Most. Bindabati Devi, namely, Harihar Prasad Singh was separate from his brothers and nephews and they had no concern with them and nothing was joint between them. After the death of Harihar Prasad Singh, his widow Most. Bindabati Devi inherited the entire property of her husband and came in possession thereof and after passing of Hindu Succession Act, 1956, she became absolute owner of the properties left by her deceased husband and it is absolutely incorrect to say that Most. Bindabati Devi was simply a maintenance holder. Her name was also entered in Register-D as absolute owner of the property of her deceased husband.
Further case of the intervenor defendant is that Most. Bindabati adopted him as her Karta Putra in the year 1937 and to confirm the act of adoption she also executed a registered deed on 2-8-1975. It has been stated that the intervenor defendant as well as his father gave their consent to become Karta Putra of Most. Bindabati Devi. It is further stated that at the time of execution of the deed on 2-8-1975 Most. Bindabati Devi had become very weak and, so, she was not in a position to sign the document of Karta Putra and, as such, she put her L.T.I, on the said document of Karta Putra and it is not correct to say that the L.T.I, of Bindabati Devi was taken only after her death. Further case is that on the basis of his being Karta Putra the intervenor defendant came in possession of the entire properties left by Most. Bindabati Devi as he was living with Most. Bindabati Devi from his childhood and it was who Bindabati Devi performed his Upnain ceremony as well as besides meeting expenses on his education. It is further stated that after the death of Bindabati the intervenor defendant being her Karta Putra performed the last rites and Sharadh of Most. Bindabati. The
intervenor-defendant further claimed that after the death of Most. Bindabati Devi he has been coming in physical possession of house and properties left by Most. Bindabati Devi in the capacity of Karta Putra and the present suit has been filed only to grab the properties of Most. Bindabati and the same is of collusive nature as defendant Nos. 1 to 7 are in collusion of the plaintiffs. The prayer has been made to dismiss the suit with costs.
5. On the basis of pleadings of the parties, the trial Court framed altogether seven issues for determination which are as follows:
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiffs any cause of action?
(iii) Has intervenor defendant been adopted by Bindabati ?
(iv) Is the adoption alleged by intervenor defendant valid ?
(v) Has intervenor defendant got any right, title and interest over the husband's property of Bindabati ?
(vi) Is there unity of title or possession between the plaintiff and defendant ?
(vii) To what relief, if any, is the plaintiff entitled ?
6. On perusal of judgment of the trial Court, it appears that the trial Court held that there was unity of title and possession between the plaintiff and defendants but with regard to original defendant No. 8 Bindabati Devi, the trial Court held that after passing of Hindu Succession Act. 1956, she was not simply a maintenance holder but her status was changed from maintenance holder to absolute owner and in this regard, the trial court placed reliance upon the decision reported in AIR 1977 SC 1944. It further transpires that the trial Court did not accept the claim of intervenor defendant that he was appointed as Karta Putra of Bindabati Devi and, as such, the trial Court held that by virtue of the deed of adoption dated 2-8-1975 the intervenor defendant did not acquire any right, title and interest in the property of Bindabati Devi and, accordingly, the trial Court decreed the suit of the plaintiffs for partition of the suit property and held that the plaintiffs have got 1/3rd share in Schedule I and II properties.
7. Against the said finding of the trial Court, the intervenor-defendant. namely, Baijnath Prasad Singh preferred appeal which was decided on 3rd January, 1989, by Sri Basudeo Sahay, 3rd Additional District Judge, Sahsara, who allowed the appeal and set aside the judgment and decree of the trial Court and held that Bindabati wife of late Harihar Singh had no unity of title and possession with the plaintiffs and defendant first party and she was absolute owner of the properties in suit which she got from her late husband. The Court further held that intervenor defendant Baidnath Singh was validly adopted by Most. Bindabati as her Karta Putra which is prevalent in Mithila belt and so, the intervenor defendant is entitled to inherit the properties left by Most. Bindabati.
8. Against that finding of the first appellate Court, the plaintiffs filed this second appeal and it appears from the record that this second appeal was disposed of by a single Bench of this Court vide judgment dated 17th September, 1998, whereby the appeal was allowed and the plaintiffs suit was decreed. It further transpires that against the said judgment, Civil Appeal No. 5619 of 1999 was preferred before the Hon'ble Supreme Court which was disposed of by order dated 16-2-2005 whereby the Hon'ble Supreme Court remitted back this appeal to this Court with direction to give fresh decision in the light of substantial question of law as framed earlier with liberty to frame additional question of law and thus, this second appeal is again before this Court.
9. In view of the liberty given by the Hon'ble Supreme Court, the learned Advocate of the appellant submitted that there is need to recast the substantial question of law as framed earlier and also to frame some more substantial questions of law and accordingly, on 11-8-2006, the following substantial questions of law were formulated on recast for determination in the appeal.
(1) Whether the plaintiffs can meet the new case set up by defendants without amending his plaint and he can even rely on the pleadings of other side ?
(i) Whether the claim of the intervenor-defendant that he was adopted as Karta Putra by Bindabati in the year 1937 can be legally entertained in absence of any specific pleading and proof of custom and usages of adopting Karta Putra which is prevalent in Mithila area only and not outside ?
(iii) Whether the deed of adoption dated 2-8-1975 is violative of Section 4 of Hindu Adoption and Maintenance Act, 1956 is nonest in the eye of law ?
(iv) Whether the judgment of lower appellate Court is perverse and suffers from various legal infirmities i.e. non-consideration, misreading and misinterpretation of oral as well as documentary evidence on record and also due to non-consideration of reasonings of the trial Court while reversing its findings ?
Substantial Questions of Law Nos. II, III & Iv
10. As all these three substantial questions of law are interlinked, as such they are being taken up together for discussion. It is well settled principle of law that the first appellate Court is the final Court of facts and under Section 100 of the Code of Civil Procedure, this Court while sitting in second appeal has got no jurisdiction to interfere with the findings of the first appellate court unless this Court finds that the findings of the first appellate Court are perverse due to non-consideration or misreading or misinterpretation of oral as well as documentary evidence on record. In this record, reliance can be placed upon the following decisions (i) AIR 1959 SC 57 Deity Pattabhiramaswarny v. S. Hanymayya and (ii) : AIR2005SC1777 Manicka Poosali (D) by LRs. v. Anjalai Ammal.
11. In the case of Deity Pattabhiramaswamy v. S. Hanymayya AIR 1959 SC 57 following observation has been made by the Apex Court regarding the provision of Section 100, CPC.
The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Nor does the fact that the finding of the First Appellate Court is based on some documentary evidence made it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. (The practice of some Judges of the High Court disposing second appeals as if they were first appeal deprecated).
12. In : AIR2005SC1777 (Manicka Poosali (D) by LRs. v. Anjalai Ammal) while making discussion on the scope of Section 100, CPC the Apex Court made following observations:
In second appeal existence of substantial question of law is sine quo non for exercise of jurisdiction and the High Court cannot proceed to hear a second appeal without formulating the substantial questions of law.
Para 17 of the decision runs as follows:
This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 (Govindraju v. Marriamman : AIR2005SC1008 decided on 4th February, 2005. In Govindraju's case (supra) it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on re-appreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse i.e. based on misreading of evidence or based on no evidence.
13. In order to come to the conclusion that the findings of the first appellate Court are perverse or not it would be just and expedient to go through the pleadings of the contesting parties as well as the background of filing of the suit. In this regard it will be of vital importance to see what was the initial or original case of the plaintiffs and how it took new shape after amendment of the plaint, initially, the case of the plaintiffs as made out in the plaint vide paragraphs 7, 8, 9, 10 and 12 was that the husband of defendant No. 8 Bindabati died in the year 1913 in a state of jointness with his brother and three nephews and after his death Ganga Prasad Singh got his entire properties by Survivorship and defendant second party, namely, Bindabati Devi (now dead) was simply a maintenance holder and although 5 bighas of land in Mauza Mohanpur and Zamindari's interest in Tauzi No. 4172 in village Pastpar, besides that 5 bighas of land of the same Mauza were allotted to her but she had no right to transfer or sell her interest in the above property. However, after the death of Bindabati Devi and consequent upon the amendment of the plaint, the plaintiffs gave up their previous case and made out a new case by adding a separate paragraph i.e. paragraph 12 'Ka' in the plaint that if it is found that Bindabati was separate from plaintiffs then in that case the plaintiffs and the defendants first set are entitled to inherit her properties being the surviving heirs of her husband. The judgment of the trial Court as well as that of the first appellate Court establish that both the Courts below have negatived the initial case of the plaintiffs that Bindabati Devi was joint with the plaintiffs and the defendant first set and that she was simply a maintenance holder rather both the Courts below concurrently gave finding that Bindabati Devi was separate for all practical purposes, from the plaintiffs and defendant first set and she was the sole and absolute owner of her property and not simply a maintenance holder. The reasons given by the trial Court as well as by the first appellate Court on coming to the above findings are very sound and according to the evidence available on record and I do not want to encumber my judgment by repeating the grounds on which the Courts below have arrived at the abovesaid conclusion. It is also not necessary because of the fact that the appellants have accepted the findings of the Courts below that Mostt. Bindabati was separate from the plaintiffs and defendants-first set and she was the absolute owner of her property. This fact establishes that from the very beginning the plaintiffs have not come with clean hand.
14. Now coming to the amended case of the plaintiffs, I find that the death of Mostt. Bindabati which occurred within ten days of filing of the suit (the suit was filed on 25-7-1975 and admittedly, Bindabati Devi died on 2-8-75) gave rise to filing of an amendment petition for amending the plaint. It appears that by order dated 19-1-1978 the amendment sought for was allowed and a new paragraph i.e. paragraph 12 'Ka' was added in the plaint. In order to establish the nature of the amendment, I would like to quote new paragraph 12 'K' of the plaint which is as follows:
(Vernacular matter omitted..... Ed.)
It further transpires that on the basis of the above amendment, the plaintiffs also sought for amendment in the relief portion by adding paragraph 19(2) 'Ka'. I would like to reproduce the said paragraph which is as follows:
(Vernacular matter omitted... Ed.)
15. From the above amendment of the plaint, it is clear that the plaintiffs have very cleverly backed out from their original stand that the suit properties were joint properties of the plaintiffs and defendant No. 1 and Mostt. Bindabati was simply a maintenance holder and although she was allotted to Schedule 2 land in lieu of her maintenance but she had no right to alienate the said property. At this stage, I must say that this stand of the plaintiffs was completely illegal as after enactment of the Hindu Succession Act, 1956 the widow became absolute owner of the property acquired through her deceased husband. Admittedly, Mostt. Bindabati died on 2-8-1975, much after enactment of the Hindu Succession Act, as such at the time of death. Mostt. Bindabati was the absolute owner of her property and any statement which is not in conformity with the law regarding the status of Bindabati was illegal. From perusal of the judgment of the trial Court as well as the first appellate Court it appears that while discussing the oral as well as documentary evidence of the parties both the Courts below found that during her lifetime Mostt. Bindabati alienated the properties standing in her name by executing sale deeds and Arpanama and she exercised her full right and interest with respect to the properties allotted to her. I, therefore, find and hold that the initial case of the plaintiffs that Mostt. Bindabati Devi was joint with them and although some properties were allotted to her but she was not the absolute owner of the property and was simply a maintenance holder, was not only against the statute but also against the materials facts brought on record which goes to prove that the initial case of the plaintiffs was based on false plea. However, after the death of Bindabati Devi, the position completely changed and the law became favourable to the plaintiffs as admittedly the plaintiffs and defendant Nos. 1 and 2 were the surviving heirs of the husband of the deceased Bindabati but then the intervenor-defendant Baijnath Singh came in the way of the plaintiffs and defendant-first set and filed a petition before the trial Court that he being the Karta Putra of Mostt. Bindabati be impleaded as party to the suit. The prayer was allowed and the intervenor-defendant was added as party to the suit which frustrated the attempt of the plaintiffs to grab the properties of Bindabati and in the suit the point that whether the intervenor-defendant Baidnath Singh was appointed as Karta Putra by Mostt. Bindabati or not became the main issue and plaintiffs success in the suit became dependent on establishing that the claim of the intervenor-defendant was false.
16. From perusal of the judgment of the trial Court it appears that the trial Court negatived the case of the intervenor-defendant and decreed the suit of the plaintiffs but the first appellate Court gave finding that the intervenor-defendant Baidnath Singh was appointed as Karta Putra by Mostt. Bindabati and he is entitled to inherent the properties of Bindabati and therefore, the first appellate Court dismissed the suit of the plaintiffs. For coming to the conclusion as to which of the view is correct and based on material available on record once again I would like to go through the pleadings of the contesting parties.
17. It appears from the record that on 20-9-1975 the intervenor-defendant Baijnath Singh filed a petition under Order 1, Rule 10 of the Civil Procedure Code for impleading him as intervenor-defendant on the ground that Mostt. Bindabati (defendant No. 8) who died on 2-8-75, had appointed him as her Karta Putra. The plaintiffs filed a rejoinder to the said petition but after hearing the parties, the trial Court allowed the petition of the intervenor-defendant and thereafter Baijnath Singh was impleaded as the intervenor-defendant in the suit. After that, the intervenor-defendant filed a written statement on 8-7-1976 in which he has made out a case that in the year 1937 (1973) he was appointed as Karta Putra by Mostt. Bindabati and to avoid any legal lacuna, she also executed a deed in this regard on 2-8-1975. The intervenor-defendant also made out a case that after execution of the deed, Mostt. Bindabati died and he cremated her dead body and performed her Shradh. It appears that much after filing of the said written statement, the plaintiffs filed amendment petition for amending the plaint No. 7-10-1977 which was allowed on 19-1-1978 and thereafter paragraphs 12 'Ka' and 19(2) 'Ka' were added in the plaint but even after the amendment of the plaint, the plaintiffs did not controvert the specific case of the intervenor-defendant regarding his claim that he was appointed Karta Putra by Mostt. Bindabati and that he had performed last rites and Shradh of Bindabati.
18. It has been submitted by the learned Advocate of the respondents that since there is no pleading of the plaintiffs that Mostt. Bindabati had not appointed intervenor-defendant as her Karta Putra, as such any evidence adduced on behalf of the plaintiffs against the said plea of the intervenor-defendant cannot be said to be admissible in the eye of law and similarly the evidence adduced on behalf of the plaintiffs that the plaintiffs had performed the last rites and Shradh of Bindabati is also inadmissible in the eye of law as the same is beyond the pleadings of the plaintiffs. According to the submission of the learned Advocate of the respondents, if the evidence brought on record on behalf of the plaintiffs on the above two points is ignored then there is no difficulty in holding that the intervenor-defendant is Karta Putra of Mostt. Bindabati and since he had performed the last rites as well as Shradh of Bindabati Devi, as such he is entitled to inherit the properties of Bindabati Devi.
19. Against the said argument of the respondents' lawyer, the argument of the learned advocate of the appellants is that the plaintiffs in their rejoinder petition to the petition of intervenor-defendant filed under Order 1, Rule 10 of the CPC which has been marked as Ext. 5 in the suit, have specifically stated that the statement of the intervenor-defendant that he was appointed as Karta Putra by Mostt. Bindabati was incorrect and that the last rites and Shradh of Bindabati were performed by them. His further argument was that Ext. 5 (rejoinder petition) should be treated as part of the pleadings. Hence the question before me is whether Ext. 5 which is the rejoinder petition can adopt the position of the plaint and the averments made in the rejoinder can be considered to be the part of the pleading. It appears that the learned first appellate Court has held that the rejoinder petition (Ext. 5) cannot be taken to be the pleading as defined under Order VI, Rule 1 of the CPC. Order VI, Rule 1 defines pleadings that it shall mean plaint or written statement and it does not include any petition or rejoinder. Rule 2 says that every pleading shall contain material facts and Rule 14 says that every pleading shall be signed by the parties and his pleader where Rule 15 says that every pleading shall be verified at the foot by the party.
20. From perusal of the rejoinder petition (Ext. 5) it appears that the rejoinder petition has neither been signed by the plaintiff as provided under Rule 14 of Order VI nor the same is verified as provided under Rule 15 of Order VI of the CPC. I am, therefore, of the opinion that the rejoinder petition (Ext. 5) cannot be considered to be pleading in suit as defined under Order VI, Rule 1 of the CPC. I am, therefore, of the view that the first appellate Court has rightly held that the rejoinder petitioner cannot be termed to be pleading as defined under Order VI, Rule 1 of the CPC. In such a situation, when Ext. 5 of the plaintiff goes away then the natural consequence will be that the plea of the intervenor-defendant that he was Karta Putra of Mostt. Bindabati Devi and that he had performed her last rites and Shradh, remained uncontroverted and any evidence in this regard adduced on behalf of the plaintiff is inadmissible. At this stage. I would like to say that only because of the fact that the plaintiff in his pleadings has failed to controvert the plea of the interve-nor-defendant, that he was appointed as Karta Putra by Mostt. Bindabati. his case with regard to his appointment as Karta Putra will not be accepted without any proof. I am of the view that the onus lies upon the intervenor-defendant to establish from the documentary, oral as well as circumstantial evidence that he was appointed Karta Putra by Mostt. Bindabati Devi. From perusal of the judgment of the first appellate Court it appears that for arriving at the conclusion that the intervenor-defendant was appointed as Karta Putra by Mostt. Bindabati, the first appellate Court has placed reliance upon Ext. A which is the original deed of adoption (Posputranama) dated 2-8-1975 executed by Mostt. Bindabati whereby Mostt. Bindabati had made declaration that in the very childhood she had adopted the intervenor-defendant Baijnath Prasad Singh as her adopted son and she had empowered him to perform her Shradh according to the Hindu rites after her death and inherit her property. Besides Ext. A the learned first appellate Court has further placed reliance on several other documents like chowkidari receipt (Ext. C/4). certificate granted by Mukhiya (Ext. D) and other documents including the oral evidence.
21. The learned Advocate of the appellants has vehemently argued that Ext. A is not a genuine document and the learned first appellate Court has wrongly placed reliance upon this document and due to that, the first appellate Court has arrived at wrong finding. Let me examine-- whether Ext. A is a genuine document and the same was executed by Mostt. Bindabati. From perusal of the record of the trial Court it appears that the intervenor-defendant Baijnath Singh who was examined as D.W. 1, has himself proved Ext. A. At para 23 of his deposition, he has deposed that on 2-8-1975 Bindabati had executed a deed of adoption (Posputranama) in his favour over which she had put her L.T.I, in his presence which was identified by Baikunth Narayan Singh. The said deed was scribed by Yogendra Prasad Singh, Deed Writer who read over the contents of the deed to Mostt. Bindabati, who after knowing the contents of the deed, put her L.T.I. The evidence of D.W. 1 finds corroboration from the evidence of his father Baikunth Narayan Singh (D.W. 10) and D.W. 9 Yogendra Narayan Singh and other witnesses. D.W. 15 was the Sub-Registrar at Madhepura Registry Office at the time of execution of Ext. A. He admitted that in his presence the deed (Ext. A) was executed and that Mostt. Bindabati had admitted execution of the document in his presence from behind the curtain. He has also deposed that the document bears his endorsement as well as his signature. From the evidence of D.W. 1. D.W. 9 and D.W. 10 coupled with the evidence of D.W. 15 Bashisth Narayan Singh, Sub-Registrar it is established beyond doubt that the document (Ext. A) was duly executed by Mostt. Bindabati in presence of the Sub-Registrar and after its execution Ext. A was duly registered.
22. According to the submission of the learned Advocate of the appellants, there is overwhelming evidence on record to establish that Mostt. Bindabati was a literate lady and she was never a Paradnashin lady. The absence of her signature on Ext. A and the statement of D.W. 15 that Mostt. Bindabati admitted its execution in Purada establishes that Ext. A was not executed by Mostt. Bindabati Devi. But I am of the view that in view of the evidence of P.W. 3, Gauri Shankar Prasad (plaintiff) made at paras 22, 23 and
24. this plea is not available to the appellants' lawyer. I would like to refer the evidence of the plaintiff made at paras 22, 23 and 24 of his deposition. At paras 22, 23 and 24 of his deposition he has deposed that on 15th July, 1975 Bindabati Devi fell ill and thereafter Baikunth Singh (father of Baijnath Singh) took Bindabati to Madhepura for her treatment from Dr. Arjun Singh. At para 23 he has deposed that on 2-8-1975 Bindabati Devi died at the house of Dr. Arjun Singh. At para 24 he has deposed that on 2-8-75 Posputranama (Ext. A) was got to be executed from Bindabati when she was already dead. From the above evidence of the plaintiff it is established that from 15-7-75 Bindabati was ill and the father of the intervenor-defendant had taken her to Madhepura for her treatment and till her death which occurred on 2-8-1975 Bindabati was in the company of the intervenor-defendant and his father in connection with her treatment. This goes to establish that when Ext. A was executed. Bindabati was definitely in the company of the intervenor-defendant as well as his father and, therefore, there is reason to believe that the document (Ext. A) was executed by Mostt. Bindabati herself. It is true that the document does not bear the signature of Bindabati for which explanation has already come on record from the side of the intervenor-defendant that she had become very weak but merely on that ground, it cannot be held that Ext. A was not executed by Mostt. Bindabati as the plaintiff himself indirectly admitted that Ext. A bears the L.T.I, of Bindabati as he has stated at para 24 of his deposition that the intervenor-defendant had taken L.T.I, of dead Bindabati. This statement of the plaintiff that Ext. A bears L.T.I, of dead Bindabati cannot be accepted because the plaintiff has not examined any expert to prove that Ext. A bears the L.T.I, of dead Bindabati. I am, therefore, of the opinion that there are overwhelming documentary as well as oral and circumstantial evidence on record to hold that Ext. A was duly executed by Bindabati and in this regard, the finding of the first appellate Court is correct.
23. Now the question is as to who had performed the last rites and Shradh of Bindabati. According to the finding of the first appellate Court, the last rites and Shradh of Bindabati were performed by the intervenor-defendant. According to the argument of the learned Advocate of the appellants, this finding of the first appellate Court is incorrect and not based upon the materials available on record.
24. It is true that the plaintiff has brought oral as well as documentary evidence on record in support of the fact that he had performed the last rites and Shradh of Bindabati but I am of the view that the plaintiffs own statement disproves the oral evidence brought on record in this regard on his behalf. I have stated above that at para 27 of his deposition, the plaintiff (P.W. 3) has stated that Mostt. Bindabati Devi fell ill on 15-7-75 and thereafter she was taken to the Clinic of Dr. Arjun Singh at Madhepura by Baikunth Singh, father of the intervenor-defendant for her treatment. At para 23 he has deposed that on 2-8-75 Bindabati died. This goes to establish that from 15-7-1975 till 2-8-1975 (till the death of Bindabati) the intervenor-defendant and his father Baikunth Singh were in the company of Bindabati and, therefore, it is absurd to believe that after her death they would have left the dead body of Bindabati to be created by the plaintiff and others. The natural inference is that the cremation of Bindabati was done by the intervenor-defendant and his father Baikunth Singh and by no other person as no other persons were present near Bindabati at the time of her death. Likewise, the evidence of the plaintiffs witnesses that Shradh was done by the plaintiff is also not believable in view of the evidence of the plaintiff made at para 25 of his deposition that Shradh of Bindabati was done by his elder brother Saryu Prasad (defendant No. 1) but the said Saryu Prasad did not come to support the plaintiffs version that he had done Shradh of Bindabati. Against this evidence, there is reliable evidence of D.W. 1 Baidnath Singh and D.W. 10 Baikunth Singh that last rites and Shradh of Bindabati were performed by them. Moreover, there is very important circumstance which establishes that neither the plaintiff nor his elder brother Saryu Prasad would have performed last rites and Shradh of Bindabati because of the fact that admittedly Bindabati was not in good term with the plaintiffs and defendant Nos. 1 and 2 when she fell ill on 15-7-1975 and so she was taken to Madhepura for her treatment by Baikunth Narayan Singh, father of intervenor-defendant. The relationship between plaintiff and Bindabati was so bad that plaintiffs apprehended that Bindabati might execute some documents in favour of intervenor-defendant as such the plaintiff filed this title suit on 25-7-75 against Bindabati and also obtained an order of ad-interim injunction directing Mostt. Bindabati not to execute any deed of transfer in respect of the suit property. This circumstance establishes beyond doubt that the plaintiffs could have never performed last rites and Shradh of Bindabati and the averment of the intervenor-defendant that he had performed the last rituals and Shradh of Bindabati in the capacity of Karta Putra of Bindabati is true and believable and the learned first appellate Court has rightly decided the point in issue in favour of intervenor-defendant. Thus, on the basis of above scrutiny, I find that the Judgment of the first appellate Court can never be termed to be perverse or based on misreading or misinterpretation of the material evidence on record. Accordingly, the substantial question of law No. IV is decided in favour of the respondent intervenor-defendant and against the plaintiffs-appellants.
25. It has been argued by the learned Advocate of the appellants that the deed of adoption dated 2-8-75 (Ext. A) is violative of Section 4 of the Hindu Adoptions and Maintenance Act, 1956 and as such, the same is non-existent in the eye of law and on that basis it cannot be held that Mostt. Bindabati had adopted the intervenor-defendant as her Karta Putra. According to his submission, after enactment of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') the old Hindu Law as laid by Smrities, Shruties as well as the law based on custom or usage has been abrogated and the customary law of adoption and maintenance wherever it prevailed, stands abrogated by the Act and after enactment of the Act, all adoptions and question of maintenance among Hindu shall be governed by this Act.
26. It is true that after coming into force of the Hindu Adoption and Maintenance Act, 1956, the old Hindu Law regarding the adoption based on religious text, rules as well as custom or usage has been abrogated. But admittedly, the Hindu Adoption and Maintenance Act, 1956 has got no retrospective effect and in this case adoption had taken place in the year 1937 i.e. prior to coming into force of the said Act and as such, it cannot be held that the deed of adoption dated 2-8-75 (Ext. A) which had only confirmed the previous adoption was violative of Section 4 of the Hindu Adoption and Maintenance Act, 1956 and accordingly, the substantial question of law No. III is decided.
27. It has been argued by the learned advocate of the appellants that the claim of the intervenor-defendant that he was appointed as Karta Putra by Mostt. Bindabati Devi in the year 1937 cannot be legally entertained in the absence of any specific pleading and proof of custom and usage of adopting Karta Putra which is prevalent in Mithila area only and not outside. He submitted that the parties are not governed by Mithila culture as they reside outside Mithila area and therefore, the plea that the intervenor-defendant was appointed as Karta Putra by Mostt. Bindabati Devi cannot be legally entertained. In support of his argument, the learned Advocate of the appellants has placed reliance upon the decisions reported in : AIR1965Pat351 (Jagdeo Singh v. Shivadeni Singh) and AIR 1933 Patna 165 (Lalita Prasad Chaudhary v. Sharnam Singh). He has also referred Mullah Hindu Law in this regard. According to the decisions referred above it is established beyond doubt that the appointment of Karta Putra which is an adoption in Kritrim form is prevalent in Mithila area only. Admittedly, the parties are not the residents of Mithila area, and therefore, the question is whether in order to get a decree in his favour, it is necessary for the intervenor-defendant to plead that there was custom and usage in his family of adopting Karta Putra, I am of the view that it was not at all necessary because of the fact that there was no pleading on the part of the plaintiff that the intervenor-defendant was not appointed as Karta Putra by Mostt. Bindabati Devi and that there was no custom or usage in the family of Bindabati to appoint any person as Karta Putra. What is necessary to prove the appointment of Karta Putra is that the consent of the adopted boy was taken and that his appointment was done with the sole object of performing exequial rites of the adopter. I have already stated above that there was overwhelming oral as well as circumstantial evidence on record that the excequial rites of adopter (Bindabati Devi) were performed by the intervenor-defendant Baijnath Singh and then there is also acceptable evidence of the intervenor-defendant (D.W. 1) and his father Baikunth Singh (D.W. 10) that at the time of adoption, the intervenor-defendant had given his consent. It is well settled law that for appointment of Karta Putra no special formality is required. I am, therefore, of the opinion that there is overwhelming evidence on record to believe that Mostt. Bindabati Devi had adopted the intervenor-defendant as her Karta Putra in the year 1937. My view further finds support from the pleading of the plaintiffs itself that since 1925 Mostt. Bindabati Devi was separate and she was allotted Zamindari interest as well as some culturable land in Mauza Mohanpur and Pastpur and that her name was separately recorded in the record of rights and she was separately and independently dealing in properties by executing Arpannama (Ext. 7) and sale deed (Exts. G, G/1 and I/1). The evidence of the plaintiff (P.W. 3) that Mostt. Bindabati Devi fell ill on 15-7-1975 and then she was taken by Baikunth Singh, father of the intervenor-defendant to Madhepura for her treatment establishes that it was the intervenor-defendant and his family members who was rendering service to Mostt. Bindabati Devi which gives strong support to the case of the intervenor-defendant that much before the date of execution of the deed of adoption (Ext. A) the intervenor-defendant had already been appointed as Karta Putra by Mostt. Bindabati. It appears that this fact was also known to the plaintiff from before and that is why as soon as Mostt. Bindabati Devi fell ill on 15-7-1975, the plaintiff filed this suit on 25-7-1975 with false statement that Bindabati Devi was joint and was simply a maintenance holder and with a view to illegally restrain Mostt. Bindabati Devi not to execute any document in favour of the intervenor-defendant, the plaintiff illegally obtained on order of ad-interim injunction in his favour. All these circumstances establish that Mostt. Bindabati Devi had legally appointed the intervenor-defendant as Karta Putra and there was absolutely no necessity to plead custom and usage in proving that there was custom in his family to adopt any person as Karta Putra. Accordingly, the substantial question of law No. II is decided.
28. It has been argued by the learned advocate of the respondents that there was no pleading of the plaintiff that the intervenor-defendant was not appointed as Karta Putra by Mostt. Bindabati Devi and as such, the plaintiff cannot be permitted to meet the case of the intervenor-defendant without amending his plaint. I have already discussed above that the rejoinder petition (Ext. 5) cannot take the place of pleading as defined under Order VI, Rule 1 of the Code of Civil Procedure and as such, it would be deemed that there was no pleading of the plaintiff that the intervenor-defendant was not appointed as Karta Putra by Mostt. Bindabati. It has been argued by the learned Advocate of the appellants that although it is true that the plaintiff has not controverted the claim of the intervenor-defendant regarding his appointment as Karta Putra by amending the plaint but the defendant Nos. 1 and 2 have filed written statement controverting the claim of the intervenor-defendant and the plaintiffs can take advantage of that pleading. But I am of the view that this argument of the learned Advocate of the appellants is misconceived as defendant Nos. 1 and 2 have not come to support their case in the Court below. In the circumstances mentioned above, I hold that the plaintiff is not entitled to meet the case of the intervenor-defendant regarding his appointment as Karta Putra without amending his plaint and in absence of the evidence of defendant Nos. 1 and 2, the plaintiff cannot rely upon the pleadings of defendant Nos. 1 and 2. Accordingly, the substantial question of law No. I is also decided.
29. In the result, I do not find any merit in this appeal and the same is hereby dismissed on contest with costs. The judgment and decree of the first appellate Court are hereby upheld and confirmed.