Pawan Kumar Pathak vs Mohan Prasad

'REPORTABLE' IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4456 OF 2016 (Arising out of SLP (Civil) No. 16486 of 2015)

PAWAN KUMAR PATHAK ... Appellant

VERSUS

MOHAN PRASAD ... Respondent

WITH

SLP(C) No. 19336-19337/2015

S.L.P.(C)...CC No. 19118/2015

J U D G M E N T

A. K. SIKRI, J.

Civil Appeal No. 4456 of 2016 (Arising out of SLP (Civil) No. 16486 of 2015)

Leave granted.

We have heard the matter finally at this stage itself

with the consent of counsel for the parties because short

issue relating to the admissibility of the evidence which was

to be produced by the appellant before the trial court is

involved.

The appellant herein had filed a suit in the court of

Signature Not VerifiedAdditional District Judge, Gwalior, Madhya Pradesh, which is Digitally signed by NIDHI AHUJA Date: 2016.05.03 17:30:17 IST Reason: registered as Case No. 5A of 2007.

1 C. A. No. 4456/ 2016 etc.

The foundation laid to claim the aforesaid reliefs as

per the averments of the plaint is that the appellant is the

son and only legal heir of Hira Lal and Kesar Devi, both of

whom have died intestate. It is further stated that Hira Lal

had a brother named Mahadev Prasad and both these brothers

were having agricultural land situated in Municipal

Corporation of village Gospura bearing area number 23, survey

number 1906, area 2 bigha 11 biswas, land survey number 1897,

area 1 bigha 15 biswas, survey number 1898, area 2 bigha 7

biswas, survey number 1904, area 1 bigha 16 biswas, survey

number 1907, area 3 bigha 12 biswas, which was purchased by

the two brothers jointly from various sellers. It is further

stated that after the demise of Hira Lal and Mahadev Prasad

as well as wife of Mahadev, the appellant is the only legal

heir who has right to inherit the aforesaid properties

inasmuch as Mahadev Prasad died issueless. It is further

claimed that the respondent herein has no right or concern in

any manner whatsoever, in the aforesaid properties which was

left by deceased Hira Lal and Mahadev Prasad.

In paragraph 5, the following averments are made to

this effect:

“5. That despite of the fact that defendnt Ram Kishan Dubey has stated that any document is executed by Hira Lal and Mahadev Prasad no document is executed by Hira Lal, Mahadev Prasad, Kesar Devi or Shanti Devi in favour of Ram Kishan Dubey and nor there was any need to execute the same because their only son plaintiff was alive and he is adhibhashit being in capacity of owner and possessory title holder of all

2 C. A. No. 4456/ 2016 etc.

the properties left by Hira Lal and Mahadev Prasad.”

In the said suit the following reliefs are prayed: -

“a. That it is to be declared that sole owner and possessory title holder of all the properties left by late Hira Lal and late Mahadev Prasad is plaintiff being sole successor.

b. Permanent injunction is to be passed on this basis that defendant should not transfer any part of the property left by deceased Hira Lal and Mahadev Prasad and should not create any obstruction in the use and utilization of the plaintiff, status quo is to be maintained.

c. Litigation expenses of the case is to be provided to the plaintiff from defendant. Any other justifiable relief which Hon'ble Court deems fit and proper is to be provided to the plaintiff from the defendant.”

The respondent herein filed written statement and

contested the aforesaid suit filed by the appellant. The

respondent denied that the appellant was the son of Hira Lal.

He had even moved an application for conducting DNA test of

the appellant in order to prove that the appellant was not

the son of Hira Lal. This application was contested by the

appellant and dismissed by the trial court.

Thereafter, the appellant moved an application for

amendment of the plaint, under Order VI Rule 17 of the Code

of Civil Procedure taking a specific stand therein that he

was the adopted son of late Hira Lal. The said application

was dismissed by the trial court. The appellant challenged

that order by filing Writ Petition No. 7500 of 2010 which was

3 C. A. No. 4456/ 2016 etc.

also dismissed by the High Court vide orders dated

17.01.2011. While dismissing the said writ petition, the

High Court observed as under: -

“Later on, the plaintiff-petitioner filed an application under Order 6 Rule 17 C.P.C. in regard to amendment in the plaint. By way of aforesaid amendment the plaintiff-petitioner sought an amendment in the plaint to the effect that late Heeralal adopted the plaintiff-petitioner as son during his life time and an adoption deed was also executed to this effect. That application has been rejected by the trial court.

In our opinion, the amendment, which is sought by the plaintiff-petitioner by way of an application under Order 6 Rule 17 C.P.C. in regard to the fact that the plaintiff-petitioner is an adopted son of late Heerala, has rightly been rejected by the trial court because it would be inconsistent to earlier plea of the plaintiff-petitioner and it would amount to grant of an opportunity to the plaintiff to fill up the lacuna of the evidence. Hence, in our opinion, there is no illegality or irregularity committed by the trial court in rejecting the application for amendment filed under Order 6 Rule 17 C.P.C.”

The appellant did not challenge the aforesaid order at

that stage by filing the special leave petition in this

behalf.

However, SLP (C) Nos. 19336-19337 of 2015 has been

filed challenging that order as well as the order which was

subsequently passed dismissing the review petition of the

appellant against the said order, which special leave

petition is taken up along with the present appeal.

The matter went for trial. In order to prove that the

appellant was the adopted son of late Hira Lal, the appellant

4 C. A. No. 4456/ 2016 etc.

summoned the record of the Sub-Registrar to bring on record

adoption deed dated 29.03.1974. When the official of the

office of the Sub-Registrar came with the record to the

Court, the respondent raised objection to the admissibility

of the said adoption deed on the ground that it was beyond

the pleadings and, therefore, could not be admitted in

evidence. This objection of the respondent was accepted by

the trial court and the trial court refused to take the said

document on record stating that it was beyond the pleadings

inasmuch as it was nowhere pleaded by the appellant in the

plaint that he was the adopted son of Hira Lal. The

appellant challenged the aforesaid order of refusal passed by

the trial court by filing Writ Petition No. 1760 of 2015, but

unsuccessfully, as the said writ petition has been dismissed

by the High Court vide orders dated 15.04.2015. The High

Court while dismissing the writ petition has taken note of

the earlier attempt made by the appellant seeking amendment

of the pleadings by specifically taking up the plea that he

was the adopted son of late Hira Lal which was not allowed.

On that basis, the High Court has opined that the plaint of

the appellant is inconsistent in nature when the appellant

had failed in its attempt to seek the amendment, and if the

adoption deed is admitted in evidence it would tantamount to

filling up the lacuna which was not permissible. It is this

order, validity whereof is impugned in the present

5 C. A. No. 4456/ 2016 etc.

proceedings.

The first question that arises for consideration is as

to whether there was any pleading in the plaint filed by the

appellant to the effect that the appellant was the son of

late Hira Lal. We say so because of the reason that the main

ground on which the document is not admitted in evidence is

that the same goes beyond the pleadings. We have already

reproduced paragraph 5 of the plaint hereinabove. A reading

thereof squarely demonstrates that the appellant had in no

uncertain terms claimed that he was the only son of late Hira

Lal and the only legal heir who was alive after the demise of

Hira Lal, Mahadev Prasad, Kesar Devi and Shanti Devi. There

cannot be any dispute on this in view of the aforesaid

specific pleadings. The controversy which is sought to be

raised is that the appellant-plaintiff has never claimed that

he was the adopted son, which claim was sought to be made by

the amendment of the plaint and this attempt of the appellant

had failed.

We are of the view that once the plaintiff has

mentioned in the plaint that he was the only son of late Hira

Lal, it was not necessary for him to specifically plead that

he was an adopted son.

Section 3(57) of the General Clauses Act, 1897 defines

'son' as under:

“'son' in the case of any one whose personal law

6 C. A. No. 4456/ 2016 etc.

permits adoption, shall include an adopted son;”

Once the law recognizes adopted son to be known as son,

we fail to understand why it was necessary for the appellant

to plead that he was the adopted son. His averment to the

effect that he was the only son, according to us, would be

sufficient to lay the claim of inheritance on that basis. No

doubt, the respondent has denied the appellant being the son

of late Hira Lal. It is for this reason, the appellant wants

to prove that he is the adopted son and in support of this

plea, the appellant had summoned the original of Adoption

Deed dated 29.03.1974 from the office of Sub-Registrar.

It may also be kept in mind that the appellant, in

order to prove his claim, is relying upon a document which is

a public document and was purportedly registered more than 40

years ago, i.e., in the year 1974.

There was no justifiable reason for the trial court to

reject the aforesaid plea in view of the provisions of

Section 3(53) of the General Clauses Act. In fact, it was

not even necessary for the appellant to move an application

under Order VI Rule 17 of the Code of Civil Procedure, 1908,

with an attempt to take a specific plea that he was the

adopted son as, we say at the cost of repetition, his plea to

the effect that he was the son of late Hira Lal was an

adequate plea and to prove that he was the son, he could also

place on record the document, i.e., the adoption deed in the

7 C. A. No. 4456/ 2016 etc.

instant case, to show that he was the adopted son.

Therefore, the dismissal of application for amendment

filed by the appellant on the earlier occasion would be

inconsequential, though we may hasten to add that the High

Court was not entirely justified in rejecting the application

on the ground that his plea that he was the adopted son was

inconsistent with the earlier plea. We do not see any such

inconsistency. Be that as it may, we are of the view that it

was not even necessary to seek an amendment of the plaint

and, thus, we leave the matter at that.

The upshot of the aforesaid discussion is to allow this

appeal by setting aside the impugned judgment of the High

Court as well as the order of the trial court refusing to

admit the document, i.e., the adoption deed dated 29.03.1974,

in evidence. The appellant shall be permitted to summon the

said record again.

We may make it clear and clarify that we have not

stated anything about the genuineness or otherwise of the

adoption deed dated 29.03.1974. The admissibility thereof

shall be subject to the rule of proof that is required under

the Evidence Act.

It also goes without saying that the counter claims of

the respondent here are also to be decided by the trial court

in accordance with law.

8 C. A. No. 4456/ 2016 etc.

Since the suit is of the year 2007, we impress upon the

trial court to expedite the hearing and decision thereof.

SLP(C) No. 19336-19337/2015

S.L.P.(C)...CC No. 19118/2015

In view of the aforesaid order passed in Civil Appeal

No. 4456 of 2016 (arising out of SLP (Civil) No. 16486 of

2015), no orders are required to be passed in SLP(C) No.

19336-19337/2015 and S.L.P.(C)...CC No. 19118/2015 and the

same stand disposed of.

........................, J.

[ A.K. SIKRI ]

........................, J.

[ R.K. AGRAWAL ]

New Delhi;

April 26, 2016.

9 C. A. No. 4456/ 2016 etc.

ITEM NO.4 COURT NO.12 SECTION IVA

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No. 16486/2015

(Arising out of impugned final judgment and order dated 15/04/2015 in WP No. 1760/2015 passed by the High Court Of M.P. At Gwalior)

PAWAN KUMAR PATHAK Petitioner(s)

VERSUS

MOHAN PRASAD Respondent(s)

(With interim relief and office report)

WITH

SLP(C) No. 19336-19337/2015 (With appln.(s) for exemption from filing O.T., for vacating stay, for c/delay in filing SLP and Office Report)

S.L.P.(C)...CC No. 19118/2015 (With appln.(s) for c/delay in filing SLP and Office Report)

Date : 26/04/2016 These petitions were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE R.K. AGRAWAL

For Petitioner(s) Mr. Jayant Bhushan, Sr. Adv.

Mr. Rana Mukherjee, Sr. Adv.

Mr. Prashant Shukla, Adv.

Mr. B. D. Jain, Adv.

Mr. Pashupathi Nath Razdan, Adv.

For Respondent(s) Mr. Anoop G. Chaudhari, Sr. Adv.

Ms. June Chaudhari, Sr. Adv.

Mr. Deepak Chandna, Adv.

Mr. Varinder Kumar Sharma, Adv.

UPON hearing the counsel the Court made the following O R D E R

SLP (C)No. 16486/2015 Leave granted.

10 C. A. No. 4456/ 2016 etc.

The appeal is allowed in terms of the signed reportable judgment.

SLP(C) No. 19336-19337/2015 S.L.P.(C)...CC No. 19118/2015 Delay condoned.

The special leave petitions are disposed of in terms of the signed reportable judgment.

In view thereof, pending applications stand disposed of.

(Nidhi Ahuja) (Tapan Kr. Chakraborty) Court Master Court Master

[Signed reportable judgment is placed on the file.]

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