RAJGOPAL (DEAD) BY LRS. versus KISHAN GOPAL AND ANR.

Citation: [2003] SUPP. 3 S.C.R. 732 · Decided: 16-09-2003 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
RAJGOPAL (DEAD) BY LRS. 
V. 
KISHAN GOPAL AND ANR. 
SEPTEMBER 16, 2003 
[Y.K. SABHARWALAND B.N. AGRAWAL, JJ.] 
Hindu Adoptions and Maintenance Act, 1956-Adoption prior to the 
coming of the Act-'Dwyamushyayana' form of adoption taking place-
Suit for declaration of title and recovery of possession claiming right of 
C inheritance-Trial Court decreeing the suit-First appellate court holding 
that there was no adoption in the said from-High Court holding that the 
question of adoption has attained finality in earlier round of litigation-
Correctness of the-Held, on facts, the High Court, in earlier round, did 
not decide the question of adoption but had remanded back to first 
D appellate court to decide the appeal afresh-No specific averment in the 
pleadings on 1he question of adoption-Appellate court coming to a 
finding that no proof of agreement between natural father and adoptive 
father as required in 'Dwyamushyayana 'form of adoption-Hence, inter-
ference with the said finding of fact by High Court in second appeal is not 
justified-Civil Procedure Code, 1908, Section JOO. 
E 
One M had two wives. M Had two sons K and G from the first 
and second wife respectively. M and his brother U belonged to Mantri 
family. Since U had no issue, he adopted Gin 'Dwyamushyayana' form 
as per the contention of the respondents. As per the custom, this form 
F prescribes that there must be an agreement between the natural father 
and adoptive father to the effect that the person given in adoption shall 
be the son of both and thus entitled to inherit the properties of both 
the fathers. G married C and had two sons, who are the respondents. 
Appellant no. 3 was the wife of K from whom she had two sons -
G appellant nos. 1 and 2. G and the respondents were in joint possession 
of the properties of U and M along with K and the appellants. After 
the death of Kand G, the appellants denied joint family property rights 
to U and the respondents. 
The respondent-plaintiffs filed a suit for declaration of title 
H recovery of possession of suit properties from appellant-defendants 
732 
RAJGOPAL v.KISHAN GOPAL 
733 
before trial court contending that appellant no. 3 was not the legally A 
wedded wife and appellant nos. 1 and 2 ar not the legitimate children 
of K. The appellants objected to the suit contending that G was given 
in adoption in ordinary form and not in 'Dwyamushyayana' form and 
so G had ceased to have a right of inheritance in the estate of his 
natural father M; and that on the death of K, the entire property B 
devolved on the appellants as they were the only legal heirs. The trial 
court dismissed the suit of the respondents on the ground of limitation. 
The trial court held that G was given in adoption by his father M and 
not by his brother Kand upheld the other contentions of the appellants. 
The first appellate court confirmed the judgment of the trial court and 
dismissed the appeal of the respondents. On the question of adoption, C 
the appellate court observed that the adoption was invalid since G was 
given in adoption by his brother K and not by his father M. The 
respondents filed a second appeal before High Court. The appellants 
als() filed cross objections before the High Court on the finding on 
adoption. The High Court remanded the matter back to the first D 
appellate court for deciding the appeal afresh on merits since the 
question oflimitation was not correctly decided. In view of the remand, 
the High Court did not consider the cross objections of the appellants 
on merits. Before the first appellate court, a petition under Order 41 
Rule 27 CPC was made by the parties for production of additional E 
evidence. The first appellate court remanded the matter back to the 
trial court since witnesses were required to be examined before 
admitting the additional evidence. 
The trial Court, upon remand, partly decreed the suit with 
respect to half share of the respondent-plaintiffs besides holding that F 
the suit was filed in time; that the adoption was in 'Dwyamushyayana' 
form; that the adoption of G was given by K and not by his father M; 
and that appellant no. 3 is the legally wedded wife of K and appellant 
nos. 2 and 3 are thus the legitimate children of K. The appellants filed 
an appeal before the first appellate court. The respondents also filed G 
an appeal before the appellate court questioning the legitimacy of the 
marriage of appellant no. 3 with K. The first appellate court dismi

Excerpt shown. Read the full judgment & AI analysis in Lexace.