The Nagpur Bench of the High Court of Judicature at Bombay has ruled that a suit challenging the gift of ancestral property executed by a Hindu father is governed by the 12-year limitation period under Article 109 of the Limitation Act, 1963, rather than the three-year period under Articles 58 or 59.
In a judgment pronounced by Justice Rohit W. Joshi, the Court also held that even in the absence of an explicit plea of adoption in the plaint, evidence on adoption is fully admissible if the issue was introduced by the defendant’s written statement and both parties went to trial fully aware of the rival cases without any prejudice. Confirming the concurrent decrees of the lower courts, the High Court upheld the status of the plaintiff as the legally adopted son and directed the legal representatives of the deceased working partner to hand over possession of the suit properties.
Background of the Case
The dispute arose out of a suit filed on October 15, 1979, by Chandraprakash Ramdayal Agrawal (Plaintiff No. 1) and his adoptive mother, Smt. Laxmibai Seth Ramdayal Agrawal (Plaintiff No. 2, since deceased), against Shyamsunder Mahadeo Khandelwal (the original defendant, also since deceased, represented by his legal heirs).
The plaintiffs challenged a registered Gift Deed dated April 15, 1968, executed by late Ramdayal Onkarlal Agrawal in favor of the defendant, transferring Municipal House No. 258 situated in Kudwa Line, Deshbandhu Ward, Gondia. The plaintiffs sought a declaration that the gift was void and not binding on them as the property was ancestral and transferred without any legal necessity. They also sought possession of both House No. 258 and an adjacent property, House No. 261.
According to the plaintiffs, the defendant was initially associated with late Ramdayal as an accountant (Munim) and later became a working partner in their ancestral tobacco business, “Ramchandra Onkarlal.” On January 22, 1968, Ramdayal and the defendant entered into an agreement. Under this agreement, Ramdayal agreed to gift House No. 258 to the defendant on the condition that the defendant would vacate and hand over possession of House No. 261 within four years. However, the defendant failed to vacate House No. 261, prompting the plaintiffs to sue for possession of both properties.
During the trial, the defendant disputed the status of Plaintiff No. 1, asserting that there was no valid adoption and that Plaintiff No. 1 had no right to inherit the property. The defendant also contended that the suit properties were not ancestral, but belonged to the partnership firm, and that the suit, filed more than eleven years after the gift deed’s execution, was barred by limitation.
Both the Joint Civil Judge, Junior Division, Gondia (on February 1, 2003) and the District Judge-I, Gondia (on April 3, 2007) ruled in favor of the plaintiffs, accepting the adoption of Plaintiff No. 1, declaring the properties ancestral, and finding the gift deed to be void as it lacked legal necessity. The legal representatives of the original defendant subsequently preferred a Second Appeal before the High Court.
Arguments of the Parties
Appellants’ (Defendants’) Arguments
Senior Advocate Mr. J.T. Gilda, appearing for the appellants, raised two primary substantial questions of law:
- On Limitation: He argued that the challenge to the registered Gift Deed of April 15, 1968, was a substantive prayer, and the prayer for possession was merely consequential. He contended that the suit was governed by Articles 58 or 59 of the Limitation Act, which prescribe a three-year limitation period commencing from the date of registration (April 26, 1968). Therefore, the suit ought to have been filed on or before April 25, 1971, making the 1979 suit severely time-barred.
- On Admissibility of Adoption Evidence: He vehemently argued that the plaintiffs’ plaint contained no positive statement that Plaintiff No. 1 was an adopted son. Instead, the pleadings suggested he was a natural-born son. In the absence of specific pleadings, the evidence adduced by the plaintiffs regarding adoption was inadmissible and contrary to their pleadings.
- On the Legality of the Adoption: He argued that the adoption was invalid because the adoption deed of December 9, 1953, was executed solely by the biological father (Harinarayan) and did not bear the signature of the biological mother (Rukhminibai). He further contended that the plaintiffs failed to place on record invitation cards, photographs, or accounts of ceremony expenses to prove the customary rituals, such as the Datta Homam, were actually performed.
Respondents’ (Plaintiffs’) Arguments
Advocate Mr. S.C. Mehadia, representing the respondents, countered these submissions:
- On Limitation: He contended that because the properties were ancestral in nature, the suit was governed by Article 109 of the Limitation Act, which allows a 12-year period to challenge alienations made by a father of ancestral property. Since the suit was filed within 12 years of the execution of the gift deed, it was well within time.
- On Pleadings & Prejudice: He pointed out that while the plaint did not explicitly state that Plaintiff No. 1 was adopted, the defendant himself raised the defense in his written statement, asserting that “The Plaintiff No.1 is an alleged adoptive son does not have any right to property by virtue of adoption…” He argued that because both parties were fully aware of the dispute and led evidence on a specific issue framed by the Trial Court, no prejudice was caused.
- On the Validity of Adoption: He maintained that the biological father (PW-3) had testified about the physical giving and taking of the child in the presence of both mothers and the community. He argued that the subsequent conduct of the adoptive parents—including obtaining a joint succession certificate and the mother co-filing the suit—was overwhelming evidence of a valid adoption.
Court’s Analysis and Findings
1. Determination of Property Nature and Limitation (Article 109)
The High Court first evaluated whether the properties were ancestral or belonged to the partnership firm. It noted that the sale deeds for House No. 261 and House No. 258 were dated 1926 and 1931 respectively, when Ramdayal was a minor (aged 13 and 18) and possessed no independent income. The funds utilized were clearly ancestral.
Furthermore, the Court pointed out that the defendant was only inducted as a working partner in the Gondia shop in 1933–34, years after the properties were purchased. It also relied on the agreement dated January 22, 1968, where the defendant explicitly acknowledged that the properties were absolutely owned by Ramdayal and that the firm had no rights over them.
Rejecting the defendant’s reliance on accounting entries of property tax payments made by the firm, the Court noted:
“The books of accounts, as is well settled are not substantive piece of evidence.”
On the question of limitation, the Court held that since the properties were established to be ancestral, Article 109 of the Limitation Act applied:
“Since the properties are ancestral properties, limitation for recovery of possession of suit property bearing House No.258, which is subject matter of the gift-deed will be 12 years… The suit is obviously filed within limitation.”
2. Admissibility of Evidence on Adoption in the Absence of Plaint Pleadings
The High Court addressed the technical objection regarding the lack of explicit adoption pleadings in the plaint. While acknowledging the general rule that evidence cannot be led beyond pleadings, the Court observed that this rule is not of universal application and is subject to the test of prejudice.
Relying on the landmark Supreme Court decision in Bhagwati Prasad Vs. Chandramaul (AIR 1966 SC 735), Rohit W. Joshi, J. quoted:
“If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence… What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it?”
Since the defendant himself introduced the adoption plea in the written statement and both parties extensively examined witnesses on the point, the Court concluded that no prejudice was caused, and the second substantial question of law was answered in favor of the plaintiffs.
3. Proof and Legality of the Decades-Old Adoption
Regarding the validity of the adoption, the Court rejected the argument that the non-signature of the biological mother on the 1953 adoption deed rendered it void. The biological father (PW-3) had stood the test of cross-examination and established that both parents were present and consented to the giving of the child.
On the proof required for ancient transactions, the Court cited the Supreme Court judgment in L. Debi Prasad (dead) by L.Rs. Vs. Smt. Tribeni Devi and others (AIR 1970 SC 1286):
“In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence… In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time… the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son.”
The Court highlighted that Plaintiff No. 1 had lived with his adoptive parents since the age of three, his marriage was performed by them, he performed their last rites, obtained joint bank succession certificates with his adoptive mother, and jointly filed the present suit with her. The Court distinguished the case of Shri Kishori Lal Vs. Mst. Chaltibai (AIR 1959 SC 504), noting that in the present case, there was a registered adoption deed as well as a subsequent registered declaration of adoption executed by the adoptive father in 1971.
The Decision
Finding no merit in the contentions of the appellants, the High Court dismissed the Second Appeal.
Additionally, the Court rejected a civil application filed by the appellants under Order VI Rule 17 of the CPC, which sought to amend the written statement after 46 years to contend that the 1953 document was merely an “agreement to adopt” rather than a deed of adoption. The Court called this attempt contrary to the record and highly belated.
Finally, the Court turned down the appellants’ request for a ten-week stay on the operation of the judgment to approach the Supreme Court, observing:
“The suit is filed in the year 1979 and it was decreed in the year 2003 and still the plaintiffs are unable to reap the fruits of decree. In view of the aforesaid, the request for grant of stay is rejected.”
No order was made as to costs.
Case Details Block
- Case Title: Shyamsunder s/o Mahadeo Khandelwal (Dead) through L.Rs. & Ors. v. Chandraprakash s/o Ramdayal Agrawal & Ors.
- Case No.: Second Appeal No. 567/2007
- Bench: Justice Rohit W. Joshi
- Date of Decision: May 15, 2026
