Kamla Devi And Ors. Vs Ranjeet Bhagat And Ors.

2026:JHHC:2300

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 14 of 1995 (R)

Bishwanath Prasad, son of Late Nathuni Chaudhuri, resident of Mahalla Whitty Bazar, P.S.- Giridih (T), P.O. & Town- Giridih, District- Giridih (Dead, Substituted vide order dated 29.08.2022) 1(a). Kamla Devi, Widow of Late Biswanath Prasad

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1(b). Sulekha Devi, Widow of deceased son of appellant namely, Ajit

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Prasad Jaiswal

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1(c). Kumari Bhawna Jaiswal, W/o Sri Bhola Prasad Choudhary

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1(d). Kumari Neha Jaiswal, W/o Sri Ranjeet Choudhary

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1(e). Ritesh Kumar Jaiswal, S/o Late Ajit Prasad Jaiswal and grandson of Late Bishwanath Prasad

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All R/o Mohalla Whitty Bazar, P.S.- Giridih (T), P.O., Town and District- Giridih

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… … Plaintiffs/Respondents/Appellants Versus

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Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni Chaudhuri, resident of Mohalla Whitty Bazar, P.S.- Giridih (T), P.O. & Town- Giridih, District- Giridih (Dead, Substituted vide order dated 29.08.2022)

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1(a) . Ranjeet Bhagat

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1(b) . Surendra Bhagat

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1(c) . Nagendra Bhagat (Dead, substituted v/o dated 10.11.2025)

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1(c)(i) . Munti Devi W/o Late Nagendra Bhagat, R/o Mohalla- Whitty Bazar, P.O. & P.S.- Giridih, District- Giridih

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1(c)(ii) . Ankit Jaiswal, Adopted S/o Late Nagendra Bhagat, R/o Mohalla-Whitty Bazar, P.O. & P.S.- Giridih, District- Giridih

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1(d) . Bijay Bhagat (Dead, Abated vide order dated 10.12.2024)

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1(e) . Raju Bhagat

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All S/o Late Dwarika Prasad Bhagat, R/o Mohalla Whitty Bazar, P.S.- Giridih (T), P.O., Town and District- Giridih

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… … Defendants/Appellants/Respondents

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---

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. R.N. Sahay, Advocate : Mr. Kirtivardhan, Advocate : Mr. Aditya Aman, Advocate For the Respondents : Mr. Yogesh Modi, Advocate ---

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Lastly heard on 11.11.2025 Pronounced on 29^th January, 2026

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1. This second appeal has been filed against the judgment and decree dated 02.12.1994 (decree signed on 13.12.1994) passed by the learned 2^nd Additional District Judge, Giridih in Title Appeal No.24 of 1991 reversing the judgment and decree dated 10.05.1991 (decree signed on 27.05.1991) passed by the learned Sub-Judge-III, Giridih in Partition Suit No. 15 of 1989/08 of 1990.

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2. The judgment and decree passed by the learned trial court has been reversed by the learned 1^st appellate court and consequently, the plaintiff is the appellant before this Court.

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3. This appeal was admitted for hearing vide order dated 21.11.1995 on the following substantial questions of law: -

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(i) Whether even after adoption of the defendant by Man Kumari, Nathuni Chaudhuri and his two sons, namely, the plaintiff and the defendant continued to be in occupation of the suit premises as members of the Joint Hindu Family?

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(ii) Whether the plaintiff is entitled to any share in the suit property?

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4. The partition suit was filed by the sole plaintiff-Bishwanath Prasad seeking partition and half share of Schedule B property.

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5. Arguments of the appellants (plaintiff)

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A. The learned counsel for the appellants has placed the trial court’s judgment and has given the factual background of the case. He submits that the facts of the plaintiff and defendant case are reflecting from the trial court’s judgment.

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B. Foundational facts have been submitted as under: -

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a. It has been submitted that Man Kumari and Khoshal Kumari were full sisters.

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b. Man Kumari was married to Kali Charan Bhagat;

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c. Khoshal Kumari was married to Bhagwat Prasad Bhagat;

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d. Kali Charan Bhagat had two wives, namely, Man Kumari and one more, but the name of another wife has not been mentioned. However, the descendants through another wife have been mentioned;

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e. Another wife had a daughter, namely, Jamuna Devi, who in turn had 7 daughters including one Sabitri Devi;

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f. Sabitri Devi was married to Nathuni Choudhary, who had two sons, namely, Dwarika Prasad and Bishwanath Prasad;

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g. Bishwanath Prasad is the plaintiff of the case;

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h. Dwarika Prasad is the defendant of the case.

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Kali Charan Bhagat (Husband) Bhagwat Prasad Bhagat (Husband) | | | | Koshal Kumari Man Kumari Another wife | Jamuna Devi (daughter) | (Sabitrai Devi & 6 other daughters) | Nathuni Choudhary (husband of Sabitri Devi) | Dwarika Prasad (defendant) and Biswanath Prasad (plaintiff)

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C. The plaintiff-Bishwanath Prasad had filed the partition suit with respect to Schedule-B property and the plaintiff claimed ½ share of the property. Man Kumari was the owner of Schedule-B property.

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D. Further facts in connection with the defendant Dwarika Prasad is that Man Kumari had adopted Dwarika Prasad by registered deed of adoption way back in the year 1944. The adoption deed was challenged by Bhagwat Prasad Bhagat, husband of Koshal Kumari in Title Suit No. 18/1947, whereby the deed of adoption was set-aside. However, the same was subject matter of appeal in First Appeal No. 11/1949, which ended in a compromise. Consequently, the defendant claimed that he was the exclusive owner of the Schedule-B property by virtue of the fact that Man Kumari had adopted the defendant, and therefore, the property could not be subject matter of partition.

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E. Learned counsel for the appellants has referred to paragraphs 13 and 14 of the plaint to submit that the adoption was never acted upon and the suit property was thrown in the joint family property of the parties. Paragraphs 13 and 14 of the plaint are quoted as under: -

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“13. That for all intent purposes the plaintiff and defendant contested the said suit and the appeal with a clear and mutual under-standing that each of the plaintiff and the defendant shall be entitled equally to the subject matter of the said suit and the appeal. In legal paralence the suit property was thrown to the said joint family.

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14. That the said appeal ended in compromise according to which the land and premises schedule B below was given to the defendant who accepted the same for and on behalf of

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the plaintiff as well and the plaintiff and the defendant always treated the same as their joint property and both the parties are residing therein.”

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F. Learned counsel for the appellants has referred to paragraph 9 of the trial court’s judgment and has submitted that the said finding has been reversed by the learned 1^st appellate court vide paragraph 25 of the judgment without discussing the materials on record. The learned counsel has then referred to Exhibit-G which is the order passed in F.A. No.11 of 1949 and has submitted that the appeal against the judgment passed in the earlier Title Suit has been practically dismissed.

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G. The learned counsel for the appellants has submitted that in the Title Suit No.18 of 1947 filed by Bhagwat Prasad Bhagat against four defendants Dwarka Prasad Bhagat, Most. Man Kumari, Sudarshan Chakra Prasad Bhagat and Mahadeo Prasad Bhagat and in the suit, the registered adoption deed was set aside. He submits that the appeal was filed by defendant Nos.1 and 2 which was numbered as F.A. No. 11 of 1949, which ended in a compromise. The respondent Nos.2 and 3 in the F.A. No. 11 of 1949 were the co-defendants in the suit.

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H. The learned counsel for the appellants has submitted that as per the compromise petition, the plaintiff Bhagwat Prasad Bhagat accepted that defendant No. 1 i.e. Dwarka Prasad Bhagat, was the adopted son of Kali Charan Bhagat and further it was agreed that all the right, claim and title of defendant No. 2 Most. Man Kumari with respect to her property, which is Schedule B property in the present case, will vest in defendant No.1 i.e. Dwarka Prasad and also the plaintiff Bhagwat Prasad Bhagat. It was further stipulated that the property of Man Kumari was divided between Dwarka Prasad Bhagat and Bhagwat Prasad Bhagat amongst themselves; a portion to the west fell in the share of Dwarka Prasad Bhagat and the portion in the east fell to the share of Bhagwat Prasad Bhagat; Bhagwat Prasad Bhagat undertook to redeem mortgage bond of Rs. 550/- executed in favour of Ram Chandra Sah by Dwarka Prasad Bhagat over the

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said house which fell into the share of Bhagwat Prasad Bhagat. It was also agreed that the parties could get their names mutated in the Municipal Register and neither parties will raise objection with respect to each other’s share. The property was divided between Bhagwat Prasad Bhagat and Dwarka Prasad upon compromise.

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I. The learned counsel for the appellants has submitted that in the compromise, the sole plaintiff Bhagwat Prasad Bhagat had accepted that the defendant No.1 namely Dwarka Prasad Bhagat was the adopted son to Kalicharan Bhagat and the same will have no bearing on the finding recorded by the learned trial court that the adoption was invalid in the eyes of law. The learned counsel for the appellants submits that merely because the plaintiff of the earlier title suit, who had challenged the deed of adoption, had accepted during compromise in the said suit that there was adoption, the same will not nullify the finding of the learned trial court. As a sequel to the aforesaid argument, the learned counsel has submitted that the effect of invalid adoption is that the status of Dwarka Prasad Bhagat continued to be in his own family of biological father and therefore, he cannot acquire any right, title and interest in the property of Man Kumari by virtue of adoption.

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J. The learned counsel has relied upon the 24^th Edition of Principles of Hindu Law by Mullah at page No. 713 which deals with the effect of invalid adoption. The learned counsel submits that if the adoption is invalid , then both the parties, the plaintiff and the defendant were entitled to ½ share of the property.

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6. Arguments of the Respondents

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i. The learned counsel for the respondents has referred to 22^nd Edition of Hindu Law by Mullah at page No. 707 and has submitted that there the period of limitation to obtain a declaration that the adoption is invalid, or never took place is six years from the date on which the alleged adoption becomes known to the plaintiff. The learned counsel submits that the

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registered deed of adoption in the present case has still not been set aside.

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ii. Learned counsel for the respondents has submitted that the judgment of Title Suit No. 18 of 1947 is on record and marked as Exhibit-10 and upon perusal of the said judgment, it appears that Kalicharan Bhagat and Bhagwat Prasad Bhagat are also distantly related and there was dispute of other properties also. The learned counsel for the respondents has submitted that Bhagwat Prasad Bhagat was the sole plaintiff in the earlier suit, who had challenged the deed of adoption in the suit and at the stage of compromise, he accepted the adoption as valid, and therefore, it cannot be said that the adoption is invalid at any stage of the matter or it was set aside by any court of law.

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iii. The consequence of adoption has been mentioned in Sections 11 and 12 of the Hindu Adoption & Maintenance Act and as per this provision, the adopted child acquires the status of child in the adopted family. Learned counsel for the respondents has submitted that as per Section 16 of the Hindu Adoption & Maintenance Act, a registered deed of adoption is valid unless it is proved to be invalid. He has also submitted that the adoption deed is not under challenge in the present proceedings and the present proceeding arises out of a partition suit. He has relied upon the judgment passed by this Court in S.A. No. 493 of 2018 [Pawan Rout vs. Shanti Kumrain and Others] in which a reference has been made to the judgment reported in (1969) 2 SCC 544 [Smt. Sitabai and another v. Ramchandra] and has submitted that the consequence of adoption with respect to Sections 11 and 12 Hindu Adoption & Maintenance Act has been considered.

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iv. The learned counsel for the respondents has submitted that the adoption was valid, and therefore, the property devolved upon the adopted son of Man Kumari namely Dwarika Prasad, and the plaintiff in the present case had no right to seek partition with respect to the property. He has further submitted that otherwise

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also as per the compromise, a portion was to go to Bhagwat Prasad Bhagat, and the plaintiff is not claiming through Bhagwat Prasad Bhagat. He has submitted that mere performance of last rites of his biological father does not annul the adoption of Dwarika Prasad by Man Kumari. The learned counsel for the respondents has submitted that the plaintiff pleaded that there were an adoption and the said fact stood admitted by the defendant, and therefore, there is no question of challenging the validity of adoption in the present proceedings, which is arising out of a partition suit.

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v. On the point of abatement with respect to deceased respondent no.1(d), the learned counsel for the respondents has referred to paragraph 12 of the judgement passed by the Hon’ble Supreme Court reported in (2019) 11 SCC 787 (Sunkara Lakshminarasamma vs. Sagi Subba Raju and Others) and submitted that the effect of abatement has been duly dealt with in the said judgement. The learned counsel submits that the proceeding having abated in connection with respondent no.1 (d), who is one of the substituted heirs of Dwarika Prasad Bhagat, therefore, the right with respect to respondent no.1 (d) has attained finality and the right of the other legal heirs and successors of Dwarika Prasad Bhagat, who are on record that cannot be affected, and therefore, the entire appeal has abated.

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7. Rejoinder arguments of the Appellants

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a) In response , the learned counsel for the appellants has submitted that in the earlier title suit, read with the compromise, the adoption was already held to be invalid. The learned counsel has also submitted that the arguments advanced on behalf of the respondents by referring to the judgment passed in the earlier title suit have nothing to do with the present case and the respondents have to stick to the written statement filed in the plaint.

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b) The learned counsel for the appellants has further, in response, submitted that non – substitution of respondent no.1 (d) has no bearing in the present case as the case was filed against Dwarika

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Prasad Bhagat and it is his right, title and interest with respect to the suit property, which was under challenge and his estate is duly represented by the other respondents, who have been substituted during the pendency of this case.

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8. Case of the plaintiff

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i. Man Kumari and Koshal Kumari were full sisters. Man Kumari was married with Kali Charan Bhagat and Koshal Kumari was married with Bhagwat Prasad Bhagat. Kali Charan Bhagat had two wives. From the first wife, he had a daughter Jamuna Devi and Jamuna Devi had a daughter Sabitri Devi. After death of the first wife, Kali Charan took Man Kumari as his second wife. Man Kumari was the owner of Schedule-A property.

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ii. Sabitri Devi was married with Nathuni Choudhary and had two sons, Dwarika Prasad Bhagat (the defendant) and Biswa Nath Prasad (the plaintiff) and the father with two sons formed joint Hindu Mitakshara family. Man Kumari had no issue and she executed a registered deed of adoption, adopting the defendant Dwarika Prasad Bhagat as her son in or about the year 1944.

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iii. The said deed of adoption was challenged by said Bhagwat Prasad Bhagat and the adoption deed was set aside by Sub-Judge, Hazaribagh in Title Suit No.18 of 1947. Dwarika Prasad Bhagat and his adoptive mother Man Kumari preferred F.A. No.11 of 1949 which ended in a compromise according to which, the property mentioned in Schedule-A vested in Dwarika Prasad Bhagat and Bhagwat Prasad Bhagat and out of Schedule-A property, the Schedule-B property was allotted to the share of Dwarika Prasad Bhagat. As a matter of fact, the said suit and appeal arising therefrom were contested by Nathuni Choudhary as karta of the joint family consisting of himself and his sons out of the joint family income and the fund. While the said appeal was pending in High Court, Nathuni Choudhary sold his ancestral lands of his native Village Hazipur to meet the expenses of the said appeal.

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iv. Even Man Kumari had every intention that Schedule-B property of the present suit shall go to plaintiff and the defendant of this suit in equal shares and even the defendant of this suit always accepted such position and treated the Schedule-B property as the joint family property of the plaintiff and the defendant of the present suit. On 23.12.1948, Man Kumari and Dwarika Prasad Bhagat (present defendant) executed an agreement accepting and admitting the share of plaintiff and defendant of this suit in the Schedule-B property to the extent of ½ and ½ and it was also admitted that the plaintiff paid Rs.2,000/- towards the expenses to be met against the said appeal before High Court. It was also agreed in the compromise that whatever interest in the subject matter of the litigation in High Court will be gained by the defendant, the plaintiff and the defendant each shall have ½ and ½ interest thereon.

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v. There were several letters written by the Sirista of the advocate engaged on behalf of the defendant to Nathuni Choudhary, the father of the defendant and plaintiff, which show that it was Nathuni Choudhary, who was meeting the expenses of the said appeal as karta of his joint family. Nathuni Choudhary used to maintain accounts of the expenses of the suit and appeal which were fully counter signed by Man Kumari. It was the case of the plaintiff that for all intent purposes, the plaintiff and the defendant of the present case contested the earlier suit and the appeal with a clear and mutual understanding that each of them shall be entitled equally to the subject matter of the said suit and the appeal. It was the case of the plaintiff in this suit that the suit property was thrown to the joint family stock.

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vi. The said appeal ended in a compromise according to which the land and premises of Schedule-B was given to the defendant, who accepted the same for and on behalf of the plaintiff as well, and the plaintiff and the defendant always treated the same as their joint property and both the parties are residing therein. All

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the taxes including Municipal Taxes, ground rents and electric charges are being met by the plaintiff and the defendant jointly. vii. The plaintiff further stated that for last years, few differences crept between the plaintiff and the defendant. The defendant disconnects the electric supply off and on to the rooms in occupation of the plaintiff. The defendant also gave out that the holding in suit stands in his name and he will not give any share in it to the plaintiff. The plaintiff having come to know about the ill intention of the defendant demanded partition of the suit property from the defendant in the month of March, 1989, but the defendant did not agree to the same. Hence, the necessity for the suit.

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viii. The plaintiff stated that the cause of action for the suit arose in the month of July, 1987 and in the month of March, 1989 and thereafter day to day within the jurisdiction of the Court. The plaintiff valued the suit property at Rs.31,000/- for the purposes of jurisdiction and paid the fixed court fee of Rs.29.75 as a suit for partition.

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9. Case of the defendant

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a) The suit is not maintainable, barred by limitation, waiver, acquiescence and estoppel and the plaintiff has no cause of action for the suit. The plaintiff is required to pay ad-valorem court fee on the market value of the suit property which is not less than Rs.10,00,000/- lacs, but the plaintiff has grossly undervalued the suit property for ulterior motive.

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b) The genealogy and the fact that Man Kumari was the owner of the suit property as mentioned in paragraphs 1, 2, 3 and 4 was not disputed. The defendant admitted that Man Kumari had adopted the defendant as her son in the year 1944 and it was added that after adoption, the defendant came and lived with Man Kumari and Man Kumari transferred the said land and house comprising of Holding No.315 of Ward No.3 of Giridih Municipality to the defendant, who started all acts of possession over the said properties as its exclusive owner. The defendant

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also admitted that the adoption deed was challenged by Bhagwat Prasad Bhagat, the husband of Khoshal Kumari, and the adoption was set aside in Title Suit No.18 of 1947. Thereafter, Dwarika Prasad Bhagat and Man Kumari preferred an appeal being F.A. No.11 of 1949 challenging the judgement passed in Title Suit No.18 of 1947. The said first appeal was ultimately compromised and accordingly the property of Schedule A vested in Dwarika Prasad Bhagat and Bhagwat Prasad Bhagat and out of Schedule A property, the property of Schedule B was allotted to the share of Dwarika Prasad Bhagat.

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c) The defendant stated that the joint family of Nathuni Choudhary and the plaintiff (defendant had ceased to be a member after adoption by Man Kumari) had nothing to do with the said suit or appeal, nor Nathuni Choudhary or the joint family incurred a single farthing in contesting the suit or appeal. No ancestral land/native house of Nathuni Choudhary at Hazipur was sold to meet the expenses of the said suit/appeal. It was stated that Man Kumari herself transferred the said property to the defendant alone, which itself shows her intention that she never desired to give any interest to the plaintiff in the said property, nor the defendant ever intended like that. He also denied execution of any agreement on 23.12.1948 and stated that the plaintiff never advanced Rs.2,000/- to meet the expenses of the appeal in the Hon’ble High Court as the plaintiff was not at all capable to advance a single farthing at that time and he had hardly passed matriculation or had gone to Calcutta to study in college and he was himself a dependent.

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d) The defendant admitted that the appeal ended in compromise and properties described in Schedule-B of the plaint was accepted to have vested in the defendant, but denied that the defendant accepted it on behalf of plaintiff also and the said property was treated as joint properties of the parties.

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e) He further stated that the plaintiff was never in joint possession of the said properties, rather the plaintiff was in permissive

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possession of two room only on the first floor and the rest of the house and land has been coming in open, adverse, exclusive and peaceful possession of the defendant for more than twelve years.

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f) The defendant denied that all municipal taxes, ground-rent, electric charges were being paid by the plaintiff and asserted that all papers concerning the said property stand in the name of the defendant and stated that the plaintiff never paid a single farthing, nor he could had paid a single farthing as he had/has no interest in the said property. The defendant also stated that there could be no occasion for demand of any partition in the suit property by the plaintiff.

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g) The defendant submitted that the natural father of the defendant and the plaintiff Late Nathuni Choudhary was residing at Hazipur and Patna and he was in service and had little time to spend with the family. It was very difficult for him to provide education to the plaintiff and hence, he requested Man Kumari and the defendant to allow the plaintiff to live with them at Giridih, so that he may be educated. The defendant and Man Kumari agreed and the plaintiff resided at Giridih and was educated. After matriculation, he went to Calcutta to study in college. After about two-three years, he returned back in or about 1950-51 and was in search of some job. He was a partner in cloth business with one Bishwanath Khandelwal for some period and had dealt in money lending business also, for which he was provided capital by Savitri Devi, who raised the fund after sale of her house at Hazipur. The plaintiff and Savitri Devi were provided accommodation in the first floor in two rooms, in which the plaintiff was still residing. The possession of the plaintiff was purely permissive and the plaintiff could not acquire any title or interest therein.

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h) The defendant further stated that he has been exercising all sorts of acts of possession over the said properties since the date of adoption and transfer of the said property by Man Kumari. He got the map sanctioned in the municipality to construct the house

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and built it from his own fund, he raised money and capital for business of his sons by pledging the said properties with the bank, he has been contesting all matters relating to the said properties, which clearly show that the defendant is the exclusive owner of the said properties, and the plaintiff cannot have any interest therein.

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10. On the basis of the pleadings of the parties, the learned trial court framed the following issues for consideration: -

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I. Has the plaintiff got any valid cause of action for the suit? II. Whether suit is maintainable in its present form?

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III. Whether plaintiff is required to pay ad-valorem court fee on the plaint?

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IV. Whether the suit is barred under the law of limitation?

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V. Whether T.S. No.18/47 and F.A. No.11/49 were contested by Nathuni Choudhary and the plaintiff, to make Man Kumari and defendant agreeable to share the fruits of the said litigation half and half as shown in the agreement dated 23.12.1948.

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VI. Whether the said agreement is genuine and enforceable under law?

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VII. Whether Nathuni Choudhary and his sons form members of Joint Hindu Mitakshara Family even after adoption of defendant by Man Kumari?

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VIII. Whether the plaintiff and defendant have been treating and occupying the suit property as joint property or whether the occupation of the plaintiff of two rooms only on the first floor of the suit house is only permissive one?

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IX. Whether plaintiff is entitled to have any share in the property?

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11. In course of trial, both the plaintiff and the defendant adduced oral as well as documentary evidences.

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Findings of the learned trial court

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12. The learned trial court decided issue nos. V and VI in favour of the plaintiff and held that the agreement i.e. Ext.-9 can be used as a

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strong piece of evidence regarding intention of Man Kumari that she wanted to give half and half share to the plaintiff and the defendant. The issue nos.VII and VIII have also been decided in favour of the plaintiff by holding that even after adoption, Nathuni Choudhary (father of plaintiff and defendant) and his sons i.e. plaintiff and defendant, continued to be the member of joint Hindu family and both plaintiff and defendant are treating and occupying the suit premises as joint property. It has also been held that the defendant has not proved that the plaintiff was in possession of suit premises on the basis of defendant’s permission. The issue no. IV has also been decided in favour of the plaintiff by holding that the suit was not barred by limitation. The other issues were also consequently decided in favour of the plaintiff and the suit was decreed by holding that the plaintiff was entitled to ½ share over schedule B property. The learned trial court recorded its findings in Paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, whose ultimate findings are as under:

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“ 7. Issue No. V and VI: These two issues are taken together for discussion for convenience. ………………………

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Thus, on the basis of above discussed facts, circumstance and evidence, I find and hold that the Title Suit No.18/1947 and First Appeal 11/1949 were contested by Nathuni Chaudhary (father of the plaintiff and defendant) and plaintiff Bishwanath Prasad as well as Man Kumari and the defendant Dwarika Prasad Bhagat. In the circumstance, I also find and hold that agreement i.e. Ext.-9 can be used as a strong piece of evidence regarding intention of Man Kumari that she wants to give half and half share to the plaintiff and defendant. These two issues are accordingly disposed of.

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8. Issue No. VII and VIII: These two issues are interconnected. Therefore, these two issues are taken together for consideration. …………………………………….. 15. On the basis of above discussed evidences I find and hold that even after adoption, Nathuni Choudhary (father of plaintiff and defendant) and his sons i.e. plaintiff and defendant continued to be the member of joint Hindu family and both plaintiff and defendant are treating and occupying the suit premises as joint property. Further I also find and hold that defendant has not proved this fact that plaintiff is in possession of suit premises on the basis of defendant’s permission. These two issues are accordingly disposed of.

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16. Issue No. IV: …………………On behalf of defendant, it has been strongly argued that the plaintiff has filed this case to enforce the agreement of year 1948 i.e. Ext.-9 in the year 1989 and according to the defendant lawyers, the suit is time barred in view of the article 54 of the limitation act. ……………….

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Considering facts and circumstances of the case and evidence already discussed, I also find and hold that this suit has not been filed to enforce the agreement i.e. Ext.-9, rather it has been used as a piece of evidence.

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Thus, on the basis of above discussed fact, I find and hold that argument advanced on behalf of defendant that suit is barred by law of limitation is not fit to be accepted.

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17. Issue No. I, II, III and IX: In view of my finding in respect of all other issues, I find and hold that plaintiff suit in its present form is maintainable and plaintiff has valid cause of action for the suit and he is also entitled for half share in suit premises as claimed by him.

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13. On appeal by the defendant, the learned 1^st appellate court framed the following points for determination and decision in the title appeal:

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(1) Whether any agreement was executed by Man Kumari and Dwarka Pd. Bhagat (deft.-appellant) in favour of Bishwanath Prasad (plaintiff-respondent) on 23.12.1948 and, if so, whether that agreement is enforceable under law?

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(2) Whether plaintiff-respondent Bishwanath Prasad is entitled to ½ share in the suit property?

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Findings of the learned 1^st appellate court

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14. The learned 1^st appellate court took both the points of determination together and recorded the admitted facts of the case at paragraph Nos. 20, 21, 22 and 23. The learned 1^st appellate court recorded its findings at paragraph Nos. 24 to 53 and the findings are summarized as under: -

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a. Plaintiff has neither questioned the validity of adoption of defendant Dwarika Pd. Bhagat by Man Kumari way back in the year 1944 nor he could have challenged as the challenge would be rendered as time barred. Therefore, the evidence-both oral and documentary brought on the record by the plaintiff on the point of adoption could not be gone into considered and appreciated.

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b. It is a settled principle of the Hindu Law that by adoption, the boy is completely removed from his natural family as regards of civil rights and obligations. The adopted son loses his rights in the coparcenary property and his natural family cannot inherit from him, nor is he liable for their debts. The plaintiff is completely estopped from contending and agitating that even after adoption defendant continued to be a member of his joint family, the Karta of which was his father Nathuni Chaudhuri as he has tried to make out a case in his plaint.

¶146

c. The plaintiff has made out a case in the plaint that as the earlier suit/appeal remained pending, it was contested by his father Nathuni Chaudhuri as Karta of the family consisting of himself and his sons with the money out of the joint family fund and income with clear and mutual understanding that the defendant and the plaintiff of the present case shall be entitled equally to the subject matter of the suit.

¶147

d. The 1^st appellate court by detailed discussions of the materials on record considered the inconsistency arising from the varying contentions of the plaintiff and observed that the inconsistencies clearly crippled the case of the plaintiff that he and his father had contested the earlier litigation and spent money for the same. The learned court recorded that such fact as pleaded in the plaint could not be proved by the plaintiff and the oral and documentary evidences placed on record were rejected and the learned court also recorded that the plaintiff could not prove the sale of property in the village to finance the earlier litigation.

¶148

e. The learned 1^st appellate court also considered the further case of the plaintiff that even Man Kumari had every intention that the suit property shall go to the plaintiff and the defendant in equal share and even the defendant always accepted that position and treated the suit property as the joint property of the plaintiff and the defendant and for that purpose on 23.12.1948 Man Kumari and the present plaintiff and defendant executed an agreement accepting and admitting the share of the plaintiff and the defendant in the suit property to the extent of ½ and ½

¶149

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¶151

share and also considered the plea of the plaintiff that it was also admitted that the plaintiff paid Rs.2000/- towards the expenses of the earlier appeal which ended in compromise and the parties always treated the suit property as their joint property. The learned 1^st appellate court rejected the aforesaid contention of the plaintiff by discussing the materials on record and held that even the agreement dated 23.12.1948 (Exhibit-9) was forged and fabricated. The agreement is dated 23.12.1948 and it contains inter alia both the old Holding no.224 as well as the New Holding No.315 of the suit property although the New Holding No.315 of the suit property came into being subsequently in the year 1949-50.

¶152

f. The court recorded that the plaintiff (P.W.7) has stated in his evidence that the said agreement was executed by the defendant and Man Kumari in his presence but also stated that he learnt about the said agreement in the year 1977 after the death of his mother. The court recorded that the fatal inconsistency arising out of the said two statements of the plaintiff left no room for doubt that the agreement dated 23.12.1948 (exhibit-9) is entirely an ingenuine document and it is completely unacceptable and unbelievable.

¶153

g. The plea of the plaintiff having paid Rs.2000/- for the expenses on the earlier litigation was also rejected by citing reasons based on materials on record.

¶154

h. The court also recorded that the admitted position is that the plaintiff-respondent (P.W.7) has been in occupation and possession of only two rooms of the suit house standing in the suit premises and he does not claim to be in possession of any other part of the suit property and the court observed that the plaintiff has not made out a case of the joint possession of the entire suit property by the parties including himself.

¶155

i. The court held that in view of the suit property being vested in defendant after his adoption by Man Kumari, there was no room or scope for a case of unity of title to the suit property between the parties.

¶156

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¶158

j. The court also recorded that it was remarkable that the plaintiff has not stated either in his plaint or in his evidence as to when he came in occupation and possession of the said two rooms and he does not claim to be a trespasser nor does he assert a hostile title. Since there is no unity of title, he cannot claim occupation and possession of the said rooms as a title-holder of the suit property. The learned court held that in facts and circumstances of the case, the occupation and possession of the said two rooms by the plaintiff could not be anything else save and except a permissive possession which was evidently the case of the defendant as per his written statement.

¶159

k. The learned 1^st appellate court ultimately observed that there was no dispute that prior to the adoption in question the suit property stood in the name of Man Kumari and that ever since the said adoption, all documents and papers stand in the name of the defendant. The municipal receipts produced by the plaintiff were considered and it was held that all of them stood in the name of either Man Kumari or the defendant except exhibit 1, which disclosed that the plaintiff had paid the municipal tax on 26.05.89, that is, after institution of the suit by him on 11.05.89. The learned court observed that if the plaintiff had paid all the other municipal taxes, all the remaining municipal tax receipts too must have disclosed the same as is disclosed by the said ext.1 and held that by merely producing the municipal tax receipts, the plaintiff cannot create and claim title in himself in respect of the suit property.

¶160

l. The 1^st appellate court has completely rejected the plea of the plaintiff that the property in question was thrown into the family of the plaintiff, defendant and their biological father.

¶161

m. The learned 1^st appellate court ultimately held as under: -

¶162

“52. Thus, on the basis of the detailed discussions made above, I find and hold as follows: -

¶163

(1) That the plaintiff has not been able to prove that Man Kumari and Dwarka Pd. Bhagat (deftappellant) had executed any agreement in favour of plaintiff Bishwanath Prasad on 23.12.1948.

¶164

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¶166

(2) That agreement (Ext.-9) brought on the record by the plaintiff is not a genuine document and hence not enforceable under law.

¶167

(3) That plaintiff Bishwanath Prasad is not entitled to any share in the suit property.

¶168

53. Therefore, in view of the aforesaid detailed discussions both the points referred to above are decided and determined in favour of the defendant and against the plaintiff.”

¶169

15. Thus, the learned 1^st appellate court set aside and reversed the judgment and decree passed by the learned trial court and allowed the title appeal on contest.

¶170

Findings of this Court

¶171

On the point of abetment of appeal due to non-substitution of the one of the legal heirs of the deceased defendant [respondent no. 1(d)]

¶172

16. It has been argued by the learned counsel for the respondents that deceased respondent no.1 (d) has not been substituted, and therefore, the proceeding has abated in connection with respondent no.1 (d). It has also been argued that the entire appeal has abated. It has been further argued that the rights with respect to respondent no.1 (d) have attained finality and the rights of the other legal heirs and successors of the sole defendant in the suit cannot be affected, as the entire appeal has abated. Reliance has been placed on the judgement reported in (2019) 11 SCC 787 (supra), Paragraph 12 which is quoted as under:

¶173

“12. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates

¶174

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¶176

in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.”

¶177

17. The said plea has been opposed by the learned counsel for the appellants by submitting that the suit was filed against the sole defendant, who was duly substituted and merely because one of the substituted respondent, that is, respondent no.1 (d) has not been substituted, the same will not have the effect of abatement of the entire appeal as his estate is duly represented by the brothers of deceased respondent no.1 (d).

¶178

18. This Court finds that the suit was filed seeking partition with respect to Schedule B property and the original plaintiff claimed ½ share and the sole defendant opposed the suit by claiming to be the exclusive owner of the suit property on the strength of his adoption by the owner of the suit property Man Kumari way back in the year 1944. In the suit, the legality and validity of the deed of adoption was not under challenge. It was simply a suit for partition and the specific case of the plaintiff was that the property which was acquired by the sole defendant from Man Kumari was thrown into the joint family property consisting of himself, his biological father and his biological full brother.

¶179

19. Consequently, the suit involved in the present case, if decided in favour of the appellants-the plaintiff, it would result in conferring ½ share of the suit property jointly in favour of legal heirs and successors of the original plaintiff and ½ share in favour of the legal heirs of the original defendant; if this appeal is dismissed, then the entire suit property of Schedule B would not be subject to partition and would go

¶180

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¶182

jointly to the legal heirs and successors of the original defendant. The impugned judgement passed by the 1^st appellate court allowed the 1^st appeal and consequently dismissed the suit seeking partition after holding that there was no unity of title and unity of possession between the original plaintiff and the original defendant. Both the original plaintiff and the original defendant have deceased and have been substituted and in the present case. One of the legal heirs of the deceased defendant, respondent no. 1 (d) has also expired during the pendency of this second appeal and has not been substituted. It is not a case where one of the defendants has not been substituted but it is a case where one of the legal heirs who died after substitution has not been substituted upon his death.

¶183

20. This Court is of the considered view that the estate of the deceased sole defendant is sufficiently represented by the other heirs/legal representatives on record and hence there will be no abetment at all. For this, reference may be made to the judgement passed by the Hon’ble Supreme Court in the case of Kishorilal (D) through L.R and others versus Gopal and others in Civil Appeal No.172 of 2026 and 173 of 2026 reported in 2026 INSC 48 . The Hon’ble Supreme Court has observed that there is a clear distinction between non-substitution of deceased party and non-substitution of a legal heir of a deceased party, in the latter, if the interest of the deceased party is sufficiently represented by other legal heirs on record, there will be no abetment. Para 38 (1) and 40 are quoted as under: -

¶184

“38. Upon consideration of the decisions cited by both sides, the legal principles deducible therefrom, and relevant to the issue in hand, are summarized below:

¶185

(1) Before declaring a suit or proceeding to have abated on ground of non-substitution of the heirs/ legal representatives of a deceased party, the Court must examine whether the interest of the deceased party qua the subject matter of the proceeding is sufficiently represented by other parties already on record. If the interest of the deceased party is sufficiently represented by other parties already on record, and the decree/order eventually passed in the suit or proceeding would not be rendered non executable for absence of that party, the suit or proceeding would not abate.

21

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2…

40. The decision in Dwarka Prasad (supra), relied by the learned counsel for respondents, in our view, is not of much help to the respondents because in that case the vendor’s interest was not represented at all. Whereas in the present case, three out of four legal heirs of Kishorilal (i.e., the vendor) were already on record. In our view, there is a clear distinction between nonsubstitution of the legal representatives/ legal heirs of a deceased party and non-substitution of one of the heirs of a deceased party. In the latter, if the interest of the deceased party is sufficiently represented by other heirs/ legal representatives on record, there will be no abatement as was held in Mahabir Prasad (supra) and Bhurey Khan (supra). Therefore, in our view, Dwarka Prasad’s decision is distinguishable on facts.”

¶190

21. This Court is of the considered view that there is no likelihood of any conflicting decree if the appeal is allowed, at best, the original plaintiff being represented through his legal heirs and representatives and the original defendant also represented through his legal heirs and representatives would be entitled to ½ and ½ share and on account of non-substitution of one of the legal heirs of the deceased defendant, that is respondent no. 1(d) there will be no abetment as the estate of the deceased defendant is duly represented by the other legal heirs already on record, who are the three full brothers of respondent no. 1(d). 22. This point is accordingly decided in favour of the appellants and against the respondents.

¶191

Substantial Questions of Law No.(i)

¶192

Whether even after adoption of the defendant by Man Kumari, Nathuni Chaudhuri and his two sons, namely, the plaintiff and the defendant continued to be in occupation of the suit premises as members of the Joint Hindu Family? Substantial Questions of Law No.(ii)

¶193

Whether the plaintiff is entitled to any share in the suit property? Both the questions being related are taken up together.

¶194

23. The perusal of the plaint and the written statement reveals that the plaintiff and the defendant had same biological father namely Nathuni Choudhary and the defendant was given in adoption to Man

¶195

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¶197

Kumari by a deed of adoption as back as in the year 1944. The plaintiff in the plaint has not questioned the legality and validity of the adoption of the defendant by Man Kumari. Further, the learned 1^st appellate court has rightly observed that even if he would have questioned the adoption, the same would have been barred by limitation. 24. This Court is of the view that the learned 1^st appellate court has rightly taken note of the aforesaid fact and rightly come to a conclusion that the point of adoption of the defendant by Man Kumari could not be gone into in the present suit. It is further not in dispute that the Schedule A property belonged to Man Kumari, who had adopted the defendant by registered deed of adoption in the year 1944. However, the deed of adoption itself was challenged by Bhagwat Prasad Bhagat, who had married the sister of Man Kumari.

¶198

25. The aforesaid genealogy reveals that Kali Charan Bhagat had two wives one of them was Man Kumari, who had no issue and another wife had a daughter Jamuna Devi, who in turn had seven daughters including Sabitri Devi and Sabitri Devi was married to Nathuni Choudhary and both the defendant and the plaintiff were the sons of Sabitri Devi and Nathuni Choudhary.

¶199

26. The property of Man Kumari i.e. Schedule A property of the present suit during her lifetime was allocated to Bhagwat Prasad Bhagat and Dwarika Prasad, and the Schedule B property of the present case was allocated only to Dwarika Prasad as per compromise decree. Consequently, during her lifetime, Man Kumari was totally divested of her property contained in Schedule A and admittedly the Schedule B property in the present case is a part of Schedule A property. In such circumstances, the Schedule B property became the exclusive property of Dwarika Prasad, who acquired the same in the capacity of the adopted son of Man Kumari during the life time of Man Kumari. Otherwise also, the property of Man Kumari, would have devolved only upon the defendant being her adopted son and not upon the plaintiff and it is nobody’s case that the property in the hand of Man Kumari was joint family property. The property of Man Kumari cannot devolve upon children born through another wife of husband of Man Kumari.

¶200

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¶202

Further, another wife had no sons and only had a daughter, who in turn had a number of daughters and Nathuni Choudhary (biological father of the defendant and also the plaintiff) was grandson through one of the daughter’s daughters. This Court is of the considered view that the property of Man Kumari, cannot be said to be joint family property of Nathuni Choudhary and his two sons, the plaintiff and the defendant and the property was the exclusive property of the defendant, who was given in adoption to Man Kumari to the extent it related to Schedule B of the plaint and the remaining portion of the property of Man Kumari was allocated to the husband of her sister in the compromise arising out of earlier suit which was compromised at the 1^st appellate stage between the present defendant, Man kumari and husband of the sister of Man Kumari.

¶203

27. Thereafter, the learned 1^st appellate court examined the agreement dated 23.12.1948, marked Exhibit 9, which contained both the old holding no.224 and the new holding no.315 of the suit property. The court recorded that the plaintiff had categorically stated at paragraph 34 of his evidence that the new holding no.315 of the suit property came into being in the year 1949-50. The court further observed that the mention of new holding number in the recital of the alleged agreement, as back as on 23.12.1948, clearly proved that the agreement dated 23.12.1948 was a colorable and tainted document devoid of any credibility.

¶204

28. The 1^st appellate court further scrutinized the agreement in the light of the deposition of the plaintiff, who was examined as P.W. 7. He deposed that the agreement was executed by Dwarika Prasad Bhagat and Man Kumari in his presence. However, at the same time, during his cross-examination, he has deposed that he came to know about the agreement in the year 1977, after the death of his mother (Sabitri Devi). The court observed that such evidence of P.W. 7 was inconsistent, which also makes the agreement completely unacceptable and unbelievable. The court ultimately held that, on the basis of said agreement, the entire case of the plaintiff for his half share in the suit property is not acceptable.

¶205

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¶207

29. The court also considered the case of the plaintiff that he had contributed a sum of Rs.2,000/- to meet the expenses of litigation of the previous suit and the appeal. The court rejected such plea by recording a finding that the plaintiff himself was dependent from the year 1948 to 1954-55 and was penniless and he could not have contributed any amount in the litigation as claimed by him. The court thereafter observed that the plaintiff claimed that he was in occupation and possession of only two rooms of the suit house standing on the suit premises and has stated so in his evidence also. The court observed that the plaintiff did not claim possession over any other portion of the suit property and held that the plaintiff had not made out a case of joint possession of the entire suit property by the parties including himself. The court then held that in view of the suit property being vested in the defendant Dwarika Prasad Bhagat after his adoption by Man Kumari, there was no room or scope for a case of unity of title to the suit property between the parties.

¶208

30. The court also observed that the plaintiff had not stated in his plaint as to when he came in occupation and possession of the two rooms. The court held that since there was no unity of title, the plaintiff could not claim occupation and possession of the two rooms as a title holder of the suit property. The court ultimately held that the plaintiff was merely in permissive possession of the suit property as claimed by the defendant in the written statement. The court also observed that there is no dispute that prior to adoption in question, the suit property stood in the name of Man Kumari, which stood admitted by the plaintiff in his evidence and ever since the said adoption, all documents and papers had stood in the name of the defendant Dwarika Prasad Bhagat. The court also observed that no doubt the plaintiff has produced a number of municipal tax receipts with respect to the suit property all of which stood in the name of either Man Kumari or in the name of Dwarika Prasad Bhagat and none of these municipal receipts save and except Exhibit 1 disclosed that the plaintiff had paid the municipal taxes in question. While referring to Exhibit 1, the court observed that it revealed that the municipal tax was paid through the plaintiff on

¶209

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¶210

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26.05.1989 i.e. after the institution of the suit by him. The court held that the municipal receipts could not create any claim of title in favour of the plaintiff with respect to the suit property.

¶212

31. The learned 1^st appellate court recorded a finding that the suit property was not joint Hindu family property. The 1^st appellate court held that there were no unity of title and no unity of possession with respect to the suit property between the parties, and the plaintiff never claimed to be in joint possession of the entire suit property, rather he was in possession of only two rooms. The learned 1^st appellate court has recorded a finding of fact that the plaintiff was in permissive possession of said two rooms.

¶213

32. Admittedly, the suit property belonged to Man Kumari, who was married to Kali Charan Bhagat as his 2^nd wife after death of his 1^st wife. The full sister of Man Kumari was married with Bhagwat Prasad Bhagat. From the first wife, Kali Charan Bhagat had a daughter namely, Jamuna Devi and Jamuna Devi, inter alia , had a daughter namely, Sabitri Devi married to Nathuni Choudhary and they had two sons, the plaintiff and the defendant. The son of Nathuni Choudhary was given in adoption to Man Kumari by registered deed of gift way back in the year 1944 and the deed of adoption was challenged by the husband of the sister of Man Kumari in T.S. No.18 of 1947, which was decreed, against which, F.A. No. 11 of 1949, was filed which ended in a compromise and the terms of compromise as recorded in the impugned judgement passed by the learned 1^st appellate court reveals that the plaintiff of the said suit accepted that the defendant of the present suit was adopted and in the said compromise, the schedule A property was allocated jointly to the husband of the sister of Man Kumari and to the adopted son of Man Kumari – the defendant of the present suit and out schedule A property, the schedule B property was allotted only to the defendant of the present suit-the adopted son.

¶214

33. This Court finds that the specific case of the plaintiff was that the plaintiff had incurred huge expenses in conducting the previous suit and the suit property (Schedule B) was thrown in the joint family comprising of the plaintiff, the defendant and their biological father

¶215

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(Nathuni Choudhari) for which the plaintiff heavily relied upon the agreement – Exhibit-9, and therefore, the property in the suit was claimed to be partitioned ½ and ½ between the biological brothers, the plaintiff and the defendant. However, at the same time, the adoption deed of the year 1944 of the defendant by Man Kumari was not under challenge.

¶218

34. Thus, in 1944, Man Kumari adopted the great-grandson of her husband's second wife, born through the daughter of that second wife. The genealogical table is as under: -

¶219

35. This Court is of considered view that Schedule B property belonging to Man Kumari having been allotted to the defendant of the present case in the compromise decree in which Man Kumari as well as the defendant were also parties and admittedly the defendant of the present case was the adopted son of Man Kumari, the said property became the exclusive property of the defendant of the present case. Since the defendant of the present case was the adopted son of Man Kumari, the relationship of the defendant with his biological father, as father and son, stood completely severed, and under such circumstances, it cannot be said that the defendant of the present case formed a joint family with his biological father and his biological brother (the plaintiff).

¶220

36. The plea of the plaintiff that the property was thrown in the joint family by the defendant and that the plaintiff had incurred expenses with respect to the previous litigation concerning the suit property, and the reliance on the agreement dated 23.12.1948, have been rejected by the learned 1^st appellate court by citing numerous reasons. Further, the learned 1^st appellate court has also recorded that even the plaintiff did

¶221

27

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not claim joint possession of the entire schedule B property. The learned 1^st appellate court has held that there was no unity of title and unity of possession with respect to the suit property (Schedule B). The findings of the learned 1^st appellate court have been summarized above. This Court finds no perversity in the matter of appreciation of evidences placed on record by the learned 1^st appellate court and this Court also finds that the judgment has been passed by the learned 1^st appellate court in accordance with law after taking into consideration every aspect of the matter.

¶224

37. As a cumulative effect of the aforesaid findings, the substantial question of law no. (i) is answered against the appellants (plaintiff) and in favour of the respondents (defendant) by holding that even after adoption of the defendant by Man Kumari, Nathuni Chaudhuri (biological father of the defendant) and his two biological sons, namely, the plaintiff and the defendant cannot be said to constitute a joint Hindu family and hence cannot be said to be in occupation of joint family property. The defendant got separated in all respects from the family of his biological father upon his adoption by Man Kumari (his nani’s step mother).

¶225

38. Further, while answering the 2^nd substantial question of law against the appellants (plaintiff) and in favour of the respondents (defendant), it is held that the Schedule B property was the exclusive property of the defendant and the plaintiff is not entitled to half share of the same as prayed for in the title suit.

¶226

39. Accordingly, this appeal is dismissed.

¶227

40. Pending interlocutory application, if any, is closed.

¶228

41. There shall be no order as to costs.

¶229

42. The office is to prepare decree accordingly.

¶230

43. Let a copy of this Judgment be communicated to the concerned court through Fax/E-mail.

¶231

Pronounced on 29.01.2026