R.S.A.No. 3261 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3261 of 1998 Date of decision: 12.8.2009 Tulsi Ram and others ......Appellants Versus Kanti Devi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Sr. Advocate with Mr.Amit Jain, Advocate, for the appellants. Dr.Surya Parkash, Advocate, for the respondent. **** SABINA, J. Plaintiff Kanti Devi filed a suit for possession which was decreed by the Civil Judge (Jr.Divn.) Palwal vide judgment and decree dated 19.8.1996. Aggrieved by the same two appeals were filed. Defendants No. 2 to 5 had filed Civil appeal No.64 of 1996 against the plaintiff and defendant No.1 and defendant No. 1 had filed Civil Appeal No. 71 of 1996 against the plaintiff and defendant R.S.A.No. 3261 of 1998 2 No. 2 to 5. Both the said appeals were dismissed vide judgment and decree dated 15.9.1998 passed by the Additional District Judge (I), Faridabad. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 5 of its judgment, are as under:- “2. The plaintiff averred that her mother Smt.Ram Pyari w/o Makhan Lal was owner in possession of the suit land as detailed in para No.5 of the plaint. After the death of her husband Makhan Lal who died prior to the year 1931, the mother of plaintiff Smt.Ram Pyari (who was also known as Smt.Bhagwani) allegedly adopted one Mool Chand as her son who was the son of the sister of Makhan Lal namely Smt.Naun Dei w/o Sohan Lal. According to the agricultural custom governing the parties, a widow had no right to adopt any child nor any adoption ceremony was ever performed but still on the basis of alleged adoption the mutation of adoption bearing no.7153 was sanctioned on 10.1.1935 whereas the said mutation did not create any right, title or interest upon said Shri Mool Chand. The plaintiff further contended that even if the said Mool Chand was held to be legally adopted by the court, even then said Smt.Ram Pyari had again become owner in possession of the suit land for having inherited the suit land after the death of R.S.A.No. 3261 of 1998 3 said Mool Chand who died on 14.10.1940 i.e. about 5-6 years after his alleged adoption. However, no mutation about the inheritance after the death of said Mool Chand was entered in the relevant revenue record despite the fact that Smt.Ram Pyari continued to be owner in possession of the suit land. Smt.Ram Payari also executed a Will dated 31.1.1979 in favour of the plaintiff which was duly registered with Sub Registrar. After the death of said Ram Pyari on 18.1.1985, when the plaintiff visited the Halqa Patwari for getting the mutation of inheritance sanctioned in her favour on the basis of said Will as well as on the basis of natural succession, being the only legal heir of the said Smt.Ram Pyari, she came to know about the wrong entries in favour of said Mool Chand in the relevant revenue record. The plaintiff further cotended that the aforesaid revenue entries were not binding on her rights being wrong, illegal, null and void etc. But in the meantime the defendant No.1 Mool Chand s/o Hirday Ram by taking undue advantage of the similarity in the name of Mool Chand, executed a sale deed dated 16.8.1988 in favour of defendants No.2 to 5 for a fictitious amount of Rs.1,33,500/- in respect of the suit land whereas the defendant No.1 was neither ever adopted by said Smt.Ram Pyari nor he ever remained in R.S.A.No. 3261 of 1998 4 possession of the suit land in any capacity. The defendants No. 2 to 5 under the garb of the aforesaid sale deed also succeeded in dispossessing the plaintiff from the suit land in the month of November, 1988 illegally and forcibly. Therefore, the plaintiff asked the defendants several times to hand over the possession of the suit land and to admit the plaintiff as owner of the suit land being the natural heir of deceased Smt. Ram Pyari as well as by dint of Will but to no avail, hence, the suit. In the end, the plaintiff prayed for a decree of possession in respect of the suit land be passed in her favour and against the defendants. 3. The defendant No.1 and defendants No. 2 to 5 filed their separate written statements. 4. The defendant No.1 in his separate written statement while taking the customary preliminary objections with respect to locus standi, estoppel, limitation, the suit being speculative and the special costs etc., controverted all the material assertions of the plaintiff and contended specifically that Smt.Ram Pyari never adopted the alleged Mool Chand s/o Naun Dei w/o Sohan Lal stated to be died on 14.10.40. To the contray, the said Smt.Ram Pyari wd/o Makhan Lal had adopted defendant No.1 as her son in the year R.S.A.No. 3261 of 1998 5 1934-35 as the defendant was natural son of one Smt.Badami w/o Hirday Ram the real sister of Makhan Lal. During her life time also, the said Ram Pyari always treated the answering defendant No.1 as her son and the defendant No.1 performed all the ceremonies of Pind Dan etc. at the time of death of Smt.Ram Pyari being her adoptive son. Since Shri Makhan Lal the deceased husband of Smt.Ram Pyari, was a high caste Hindu Brahman and was governing by a person law i.e. the Hindu Law in the matters of inheritance, succession and adoption etc., so the said Smt.Ram Pyari being her widow had every right to adopt the answering defendant No.1 as her son. The mutation of adoption was got duly incorporated and sanctioned and since then the answering defendant No.1 had been running as owner in possession of the suit land. The plaintiff had concocted the story of alleged Mool Chand s/o Naun Dei just to create a confusion. The said Smt.Ram Pyari did not execute any Will dated 31.1.1979 in favour of the plaintiff. Moreover, she had no right to execute any such Will in favour of anybody as the defendant No.1 after his adoption by her had been running as full-fledged owner in possession of the suit land. The alleged Will if any, R.S.A.No. 3261 of 1998 6 was false and fictitious and thus was not binding on the rights of defendant No.1 since defendant No.1 was absolute owner in possession of the suit land so he had every right to sell away the same in favour of defendants No. 2 to 5 for valuable consideration of Rs.1,33,500/-. The defendants No.2 to 5 pursuant to the aforesaid sale were also put into the actual physical possession of the suit land by the answering defendant. Thus, the plaintiff was not entitled to any relief of possession. In the end, the defendant prayed that the suit of the plaintiff be dismissed with costs. 5. The defendants No. 2 to 5 in their separate written statement while taking the customery preliminary objections with respect to locus standi, limitation, the suit being bad for misjoinder of causes of action, estoppel, the suit being collusive between the plaintiff and defendant No.1 etc. controverted all the material assertions of the plaintiff and contended specifically that since defendant No.1 was owner in possession of the suit land, after having been adopted by Smt.Ram Pyari, so he was perfectly competent to sell out the suit land to them. The defendants No. 1 to 5 while more or less reiterating the same story as put up by defendant No.1 (discussed above) also set up a R.S.A.No. 3261 of 1998 7 defence that they cannot be dispossessed from the suit land, they being bonafide purchasers for valuable consideration thereof. The defendants No. 2 to 5 also pleaded that neither the plaintiff was the daughter of said Ram Pyari nor she had any right, title or conern with the suit land. In the end, the defendants No. 2 to 5 prayed that the suit of the plaintiff be dismissed with costs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the Will dated 31.1.1979 executed by Smt.Ram Pyari in favour of the plaintiff is legal and valid? OPP 2. Whether late Smt.Ram Pyari inherited the suit property after the death of Mool Chand on 14.10.1940? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit is not within time? OPD 5. Whether the suit is bad for mis-joinder of cause of action? OPD 6. Whether the plaintiff is estopped from filing the present suit by her own act and conduct? OPD 7. Whether the defendant Nos. 2 to 5 are R.S.A.No. 3261 of 1998 8 bonafide purchasers of the suit land for valuable consideration? OPD 2 to 5 8. Whether the defendant No.1 had become the owner of the suit property by adverse possession? OPD 1 9. Relief. ” Learned senior counsel for the appellants has submitted that Mool Chand-appellant No.5 had been adopted by Ram Pyari and had thus inherited the estate of Makhan Lal. The name of appellant No.5 was duly recorded in the revenue record since the time of consolidation proceedings. Even in the ration card, name of appellant No.5 was depicted along with Ram Pyari. In the revenue record Mool chand was duly described as owner of the property. Appellants No. 1 to 4 were thus bona fide purchasers for consideration from appellant No.5. Kanti Devi, daughter of Ram Pyari and Makhan Lal had no concern with the suit property. Learned counsel for the respondent, on the other hand, has submitted that the son adopted by Ram Pyari, after the death of her husband in the year 1934-35, had died in the year 1940. The said fact was evident from the death certificate of Mool Chand. The suit land was being cultivated by Ram Pyari. Appellant No.5 was depicting himself as son of Hirday Ram and was also paying house tax as was evident from Ex.PW 5/1. Ram Pyari had executed a Will in favour of her daughter Kanti Devi, wherein she had specifically stated that she had no son. The said Will is a duly registered R.S.A.No. 3261 of 1998 9 document and was executed in the year 1979, whereas, Ram Pyari died in the year 1985. Appellants No. 1 to 4 were residents of Palwal where the property in dispute was situated and hence, could not be said to be bona fide purchasers of the suit land. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Admittedly, Shiv Lal, who was initially owner of the property in dispute was survived by his son Makhan Lal and daughters Non Dei and Badami. Makhan Lal was survived by his wife Ram Pyari and daughter Kanti Devi. After the death of Makhan Lal in the year 1931, Ram Pyari adopted Mool Chand. The question that is in dispute in the present case is whether Ram Pyari had adopted Mool Chand son of Non Dei and Sohan Lal, who had died on 14.10.1940 or she had adopted Mool Chand son of Badami and Hirday Ram, appellant No.5. In this regard, the relevant document is Ex.PA, as per which, Mool chand, who was adopted son of Ram Pyari, died on 14.10.1940. On 26.3.1999, following order was passed by this Court:- “ Learned counsel for the respondents states that Ex.PA death certificate is per se admissible whereas learned counsel for the appellant states that the register from which this entry has been obtained, contains cuttings, thus, the said death certificate is not per se admissible. In order to ascertain the correctness of the R.S.A.No. 3261 of 1998 10 statement made by Mr.Jain whether there is some cutting, Sub Registrar (deaths and births) Faridabad Complex Administration, Ballabhgarh, is directed to produce the register containing Registration No.69 dated 16.10.1940 showing the death of Mool Chand, on 30.4.1999.” On 28.5.1999, the following order was passed by this Court:- “ Register summoned has been produced. I have gone through the relevant entry and photostat copy of the entry has been placed on record. Mr.Idris Ahmad, Translator was called from the Translation Branch of this Court and he was asked to state as to whether name of Mool Chand has been inserted in place of Mohan Lal. He states that there is no possibility of changing the name from Mohan Lal to Mool Chand.” Thus the argument raised by learned senior counsel for the appellants to the effect that there were some cuttings in the register with regard to the death certificate Ex.PA were not found to be correct as after summoning the register, it was found that there was no possibility of changing the name of Mohan Lal to Mool chand in the entry regarding registration of death of Mool Chand. Hence, the argument raised by learned senior counsel for the appellants that no reliance can be placed on the death certificate Ex.PA falls on the ground. The fact that Mool Chand adopted son of Ram Pyari had R.S.A.No. 3261 of 1998 11 died on 14.10.1940 is further substantiated by the Will Ex.P1 executed by Ram Ram Pyari in favour of her daughter. The said Will is a duly registered document. A perusal of the same reveals that Ram Pyari had categorically stated that she had no son and had only one living daughter and consequently she bequeathed her entire property in favour of her daughter. As per the copies of assessment register with regard to the payment of house tax, Ram Pyari is described to be owner of the house. In the presence of the death certificate of Mool chand, adopted son of Ram Pyari, the other revenue record placed on the file loses its significance. Learned senior counsel for the appellants has placed heavy reliance on the entries in the jamabandis as well as entries in the revenue record during consolidation to substantiate his argument that Mool Chand, adopted son of Ram Pyari, was still alive. However, the said entries fail to advance the case of appellant No.5 to the effect that he was owner of the suit property being adopted son of Ram Pyari as the son Mool Chand, who was adopted by Ram Pyari, had died in the year 1940. Since appellant No.5 was not adopted by Ram Pyari, he has no locus standi to challenge the Will executed by Ram Pyari in favour of her daughter. Admittedly, the property in question was owned by Makhan Lal. Since he had no son the property in hand was his self acquired property even if he had inherited the same. There is no evidence on record that the property in the hands of Makhan Lal was R.S.A.No. 3261 of 1998 12 his ancestral property. After his death in the year 1931, the same was inherited by Ram Pyari and Kanti Devi in equal shares being his widow and daughter respectively. The succession never remains in abeyance. Immediately, on the death of Makhan Singh, his succession opened. Ram Pyari had adopted Mool Chand in the year 1934. Hence, the name of Mool Chand could not have been reflected in the revenue record as owner of the suit property. Had he remained alive, he could have inherited the share of Ram Pyari along with her daughter Kanti Devi on death of Ram Pyari but Ram Pyari executed a Will in favour of her daughter Kanti Devi. Mool Chand had died in year 1940. So far as appellants No. 1 to 4 are concerned, they cannot be said to be bona fide purchasers of the suit property as Mool Chand was not owner of the property and could not pass a better title to his vendees. Moreover, the property in question is situated in Palwal and appellants No. 1 to 4 are also residents of Palwal and had they made proper enquiry about the suit property they would have found out that in fact Ram Pyari had executed a Will regarding the suit property in favour of her daughter and on further enquiry they would have come to know that Mool Chand, adopted son of Ram Pyari, had died in the year 1940. In these circumstances, the Courts below had rightly decreed the suit of plaintiff Kanti Devi for possession with regard to the suit property, which had come to her share on the basis of Will R.S.A.No. 3261 of 1998 13 executed by her mother Ram Pyari in her favour. On the basis of inheritance she was as it is owner of half property after the death of her father in the year 1930. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 12, 2009 anita