SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 1 SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. DATE OF ORDER : - 5.2.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. AK Rajvanshy, for the appellant. Mr. SG Ojha, for the respondents. <><><> Heard learned counsel for the parties. The appellant is aggrieved against the order of the trial court – the court of District Judge, Churu by which the appellant's application for grant of probate and for alleged Will dated 10.8.1972 was rejected. According to learned counsel for the appellant the deceased Khema Ram at the age of 70 years executed a deed on 10.8.1972, which is registered and it purports to be an adoption deed, but in fact, apart from adopting the appellant, Khema Ram bequeathed his all movable and immovable properties in favour of the applicant Hazari Ram. The deed dated 10.8.1972 is admitted document and one of the attesting witness Ishar Ram proved the fact of said SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 2 document to be Will. It is also submitted that if all surrounding circumstances are taken into account then also it is proved that Khema Ram would have executed the Will because he was of the age of 70 years and had no other male issue to him and the applicant was son of Khema Ram's brother and was living with the deceased Khema Ram till Khema Ram died. Not only this, the applicant discharged his all pious obligation as a son who become son by adoption. In view of the above reason, the court below committed serious error of law in interpreting the document dated 10.8.1972 and committed error of law by holding that by this document the properties have not been bequeathed in favour of the applicant. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in the case of Navneet Lal @ Rangi Vs. Gokul & Ors reported in AIR 1976 SC 794 wherein principles have been given by the Hon'ble Apex Court following earlier decisions of the Hon'ble Supreme Court to show how a document can be construed properly and correctly. It is submitted that mere title is not sufficient and the intention of the executant is SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 3 required to be seen with reference to all surrounding circumstances to construe the document properly. It is also submitted that in what circumstances, the document can be treated to be Will depends upon the totality of the facts of the case and according to learned counsel for the appellant as stated above, there are all circumstances in favour of the applicant and further more there is unequivocal words used in the adoption deed that all the properties shall belong to the applicant. Learned counsel for the appellant also relied upon the judgment of Gauhati High Court delivered in the case of Guneshwar Chutia Vs. Haren Chutia reported in AIR 1974 Gauhati 73 and with the help of this decision, learned counsel for the appellant submitted that only jurisdiction of the probate court is to find out whether the document set up as a Will is actually Will and whether it had been executed and attested by the alleged testator in the state of sound mind. In this case, the testator Khema Ram clearly mentioned that the applicant will be the owner of the property, which may vest in favour to the deceased. Learned counsel for the appellant also relied upon the SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 4 judgment of the Hon'ble Apex Court delivered in the case of Meenakshiammal (deceased by LRs) and Ors Vs. Chandrasekaran & Anr reported in AIR 2005 SC 52 wherein the property was given to third person leaving apart real sisters even then the Hon'ble Apex Court found that Will is genuine, but in this case, the appellant is son of real brother and deceased who had no male heir and he is adopted son also. I considered the submissions of learned counsel for the parties and perused the record. It is settled law for construction of document that if the language used in the document are clear and unambiguous then by pleading no party can alter the language used in the deed. It is also settled law that title of the document may not be relevant if the document otherwise says. According to learned counsel for the appellant the court below has mis-interpreted the deed dated 10.8.1972. However, I find that it is not so simple as stated by learned counsel for the appellant in view of the fact that the entire tenure of the document clearly shows that the document was executed probably for taking in SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 5 adoption by the executant Khema Ram and the witnesses produced by the applicant including the applicant himself stated that the deed in question is adoption deed (Gaudnama). The same was the statement of even AW-1 Ishwar Lal, who also clearly stated that an adoption deed was executed by Khema Ram. It will be worthwhile to mention here that the deceased Khema Ram had three daughters and admittedly there is no pleading why those real daughters have been excluded by Khema Ram from the natural succession and mere incidental fact cannot be sufficient to hold that since he took in adoption his real brother's son, therefore, the natural successors have been excluded. Apart from above fact, the language used in the deed Ex.1 that my adopted son shall be entitled to take what the executant is entitled to take and will be entitled to pay what the executant is under obligation to pay and the adopted son will discharge his obligation as his son (obviously after adoption) and towards his daughters etc which is the usual recital used by any adoption deed. By deed dated 10.8.1972, the daughters of the executant have not been excluded from taking any share in the property SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 6 and because of mere saying that his adopted son shall be entitled to succeed to properties of executant by writing in the deed dated 10.8.1972, it cannot be inferred that by implication they have been excluded. The language used further suggests that the executant had very cordial and affectionate relation with his daughters, therefore, specifically he put obligation upon the applicant to discharge his liability towards his sisters. In view of the above reasons and from the facts, the judgments relied upon by learned counsel for the appellant cannot be applied. It is not a case where there is any no good relation between father and daughters who are the natural successor and have been excluded as was the case in the judgment of the Hon'ble Apex Court delivered in the case of Meenakshiammal (supra). In view of the above reasons, I do not find any merit in this appeal and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.goyal/- SBCMA No.280/1996 Hazari Ram Vs. Smt. Mana Devi & Ors. 7