RSA No. 571 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 571 of 1985 Date of decision:29.4.2011 1. RSA No.571 of 1985 Udai Bir Singh Appellant v. Mohinder Partap Singh and Others Respondents 2. R.S.A.No. 572 of 1985 Udai Bir Singh Appellant v. Mohinder Partap Singh Respondent 3. R.S.A.No. 573 of 1985 Udai Bir Singh Appellant v. Mohinder Partap Singh Respondent 4. R.S.A.No. 574 of 1985 Udai Bir Singh Appellant v. Mohinder Partap Singh Respondent 5. R.S.A.No. 575 of 1985 Udai Bir Singh Appellant v. Mohinder Partap Singh Respondent 6. R.S.A.No. 4738 of 2001 Smt.Savitri Devi & Ors. Appellants v. Udai Bir Singh and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sanjay Mittal,Advocate for the appellant-Udai Bir Singh Mr. Vijay Lath,Advocate for the respondents- Mohinder Partap Singh, Om Partap Singh and Sham Partap Singh RSA No. 571 of 1985 2 Mr.R.S.Sihota,Sr.Advocate with Mr. Kulwant Singh,Advocate for the appellants (in RSA No. 4738 of 2001) Mr.Sanjay Mittal,Advocate for the respondents ...... JITENDRA CHAUHAN,J. RSA No. 571 of 1985 1. The present appeal, and the connected appeal Nos. 572, 573,574 ,575 of 1985 and 4738 of 2001 are being disposed of by this common judgment as all these appeals are against the common judgment and decree dated 6.8.1984, passed by the Additional District Judge, Gurgaon. 2. The facts are being extracted from RSA No. 571 of 1985. 3. The brief facts are that Sampat Singh had two sons; Med Singh and Mehtab Singh. The appellant, Udai Bir Singh and the Respondents, Mohinder Partap Singh, Om Partap Singh and Sham Partap Singh, are the sons of Med Singh. Mehtab Singh was married to Chironji Devi, who were issueless. Udai Bir Singh, the eldest son of Med Singh from his first wife, who was born in the year 1915, was appointed as an heir to the estate of Mehtab Singh, on his death in the year 1916. The parties belong to an agricultural tribe and are governed by the custom in the matter of alienation, succession and adoption. As per the custom, a male proprietor cannot alienate in any manner the ancestral immovable property in favour of some of the heirs to the exclusion of others. As per the customary law, adoption of a son has the effect of divesting the widow of the estate, which came to her from her deceased husband. 4. As per the claim of the appellant, under the aforementioned custom, he became the owner of the land left by Mehtab Singh, as he had RSA No. 571 of 1985 3 been cultivating and managing the said land for the last 50 years. However, the mutation of the land was entered and remained in favour of Chironji Devi, the widow of Mehtab Singh. 5. The case of the appellant is that respondents-Mohinder Partap Singh, Om Partap Singh and Sham Partap Singh secured two collusive decrees, dated 10.10.1974 and 20.10.1977, in their favour. They also claimed to have secured a 'Will' dated 30.1.1978 from Med Singh of his properties by exercising undue influence. Appellant claimed 1/4th share in the entire property of Med Singh. The respondents did not admit the claim of the appellant. The appellant prayed for joint possession of the property of Med Singh. 6. Civil Suit No. 332/867 was filed by the appellant against the respondents in respect of the land of Mehtab Singh. It was alleged that Chironji Devi, mother of the appellant, executed a sale deed, dated 8.8.1979, in favour of defendants No. 1 to 3, so as to deprive the appellant of the rights in the property of Mehtab Singh. The defendants wanted to dispossess the appellant from the land in question. Accordingly he prayed for an injunction restraining them from interfering in his peaceful enjoyment and possession. 7. Second suit was filed by the appellant against Khacheru, for allegedly obtaining the sale deed dated 31.7.1979, from Chironji Devi on the ground that Chironji Devi, had no right to alienate the property, as the appellant was appointed as an heir to the estate of Mehtab Singh. 8. All the suits were contested by the respective-defendants. Defendants-respondents filed separate written statements. Defendants No. 1 to 3 took the stand that the appellant-Udai Bir Singh was born from the first RSA No. 571 of 1985 4 wife of Med Singh. She died on 5.11.1915. At that time, Udai Bir Singh was 11 days old. Mehtab Singh and Chironji Devi being issueless, adopted Udai Bir Singh. The ceremony of adoption was conducted by Chironji Devi, after the death of Mehtab Singh. It was stated that appellant-Uai Bir Singh had no right in the property of Med Singh, his natural father. After he was adopted by Mehtab Singh and Chironji Devi, he lost the rights to succeed to the estate of Med Singh. Accordingly, it was pleaded that he had no locus standi to file the suits challenging the alienation of property of Med Singh. 9. In the written statement filed by Chironji Devi, she denied the adoption of Udai Bir Singh and treating him as her son. She took the stand that the theory of adoption was concocted by defendants No. 1 to 3 in order to grab her property. She justified the alienation made by her in favour of defendants No. 1 to 3 and Khacheru. 10. From the pleadings of the parties, the following issues were framed:- 1. Whether the parties are governed by custom in matters of alienation, succession and adoption? If so, what is the custom on the point in question?OPP 2. Whether the plaintiff was adopted by defendant No. 4 as alleged in the plaint? If so, the effect thereof? OPP. 3. Whether the plaintiff is in possession of the land in question?OPP. 4. Whether the impugned decree dated 10.10.1974 and 28.10.1977 are null, void and illegal and do not effect the interest of the plaintiff in the estate of Med Singh, deceased, as alleged in the plaint? OPP 5. Whether Med Singh executed a valid will in favour of defendants No. 1 to3? If so, the terms and effect thereof? OPD (1 to 3) 6. Whether the plaintiff has locus-standi to file the present suit? OPP 7. Whether the suit is liable to be stayed u/s 10 CPC? OPD (1 to 3) 8. Whether the suit is bad for the non joinder of necessary parties?OPD (1to 3) 9. Whether the suit is not maintainable in the present form? OPD (1to3) RSA No. 571 of 1985 5 10.Whether the plaintiff is estopped by his act, conduct and acquiesce from filing the suit? OPD (1to3) 11.Whether the suit is barred by time ?OPD (4) 12.Whether defendant No.4 became the owner, by adverse possession of the land in question, as alleged in para 3 of the written statement?OPD (4) 13.Whether the suit is correctly valued for purposes of court fee and jurisdiction? OPP 13.A Whether the property in dispute is ancestral qua the plaintiff? 14.Relief.” 11. While dealing with issue No. 1 to the effect that the parties are governed by custom in the matter of alienation, succession and adoption, the learned trial court, after examining the evidence of PW9 Banwari Lal and PW11 Mohan Singh, held that the parties are governed by custom in matters of adoption, succession and alienation. As per the prevalent custom, the ancestral immovable property could not be alienated to the exclusion of one or other heir and the adoption did not dis-entitle the adopted child to inherit the property of his natural family. It was observed that Chironji Devi conceded that the land with the Brahmins of the village was donated to them by the Rajputs. In the year 1879, Mr. J. Wilson, Assistant Settlement Officer prepared Gurgaon District Codes of Tribal Custom, and in that list, Rajputs were cited at serial No.1. The Ld. trial court observed that it was abundantly established that the Rajputs were governed by Custom in matters of alienation, adoption etc. The Ld. Trial court further observed that as per Para 59 of the Rattigan's Digest on Customary Law, “a male land holder cannot alienate ancestral immovable property except for necessity or with the consent of male descendants. The defendants have not disputed this settled proposition of customary law. The Ld. Trial court took into consideration the law cited by the learned counsel for the plaintiff on the point of adoption, the para of Rattigan's Digest on RSA No. 571 of 1985 6 Customary Law and the Code of Tribe Custom as settled by Mr. J.Wilson, which lays down that the adopted son looses his right to inherit as a son from his natural father. 12. The Ld. Trial court held that the issue of right of adopted son with regard to his share in the property of natural father is settled against the plaintiff with the remarks that he was not entitled to succeed to the property of his natural father. 13. While dealing with Issue No.2, the Ld. Trial Court observed that Chironji Devi, defendant No.4, outrightly denied the factum of adoption of the plaintiff. To prove his claim, the plaintiff besides appearing as PW 11, examined PW8, Banwari and PW 9 Mohan Singh. To controvert his claim, Chironji Devi examined DW6 Lal Singh, who denied the claim of the plaintiff. The plaintiff placed reliance on three documents to establish that he was adopted by Mehtab Singh and Chironji Devi, as their heir. The first being his nomination by Mehtab Singh to the family pension and War record, which was admitted in the cross-examination by Chironji Devi, while appearing as DW 5. In the school record produced in the Court from 14.4.1915 to 3.2.1927, the father's name of Udai Bir Singh was mentioned as Mehtab Singh. The third piece of evidence is the 'Will' of Med Singh, which mention the fact that his first son Udai Bir Singh was adopted by Chironji Devi and Mehtab Singh. The Ld. Trial Court decided this issue in favour of the plaintiff, Udai Bir Singh. The Ld. Trial court while dealing with Issue Nos. 3 and 12 regarding possession of the land in question, decided the same in favour of the plaintiff holding him to be in joint possession of the property. Since plaintiff had no right in the property of Med Singh, Issue No. 4 was decided against him. While dealing with Issue RSA No. 571 of 1985 7 No.6, the ld. Trial court observed that the plaintiff has the right to challenge the alienation made by Chironji Devi in favour of defendant Nos. 1 to 3 and Khacheru. Consequently, the claim of the plaintiff was decreed to the extent that he was owner in possession of one third share in the land left behind by Mehtab Singh and entered in the revenue record as owned by Chironji Devi. The alienation made by her in favour of all the defendants were held to be ineffective and inoperative on the rights of the plaintiff, whereas the claim preferred by plaintiff in respect of the estate of Med Singh was dismissed. The defendants were, therefore, restrained from interfering with the possessory rights being enjoyed by the plaintiff over the land left by Mehtab Singh. 14. The parties being dissatisfied with the judgments and decrees of the ld. Trial court, came up in appeal before the Ist Appellate Court. Five appeals, cross appeals and ( cross objections ) were filed inter se by the parties. Chironji Devi died during the pendency of the appeals and her legal representatives were brought on record. 15. It was argued before the Ist Appellate Court that the findings recorded by Ld. Trial court on the point of adoption of plaintiff-Udai Bir Singh by Chironji Devi were based on conjectures and surmises, wholly erroneous and deserve to be rejected. 16. The Ld. Appellate Court while deciding this Issue, observed that the plaintiff was shown as son of Med Singh, in his service record. At no stage of his service career i.e from 1942-1975, he was recorded as a son of Mehtab Singh and Chironji Devi. It was the case of the plaintiff that in the revenue entries pertaining to the land in suit, Chironji Devi was recorded as owner of one third share having devolved upon her after the RSA No. 571 of 1985 8 death of her husband Mehtab Singh. Even in this litigation, the plaintiff described himself to be son of Med Singh. In one of the suit filed by him, he claimed that he was entitled to the share in the ancestral property of Med Singh, like his other sons. The plea of Chironji Devi throughout was that she never treated the plaintiff as her son. A categoric stand of plaintiff in an earlier litigation i.e. statements Ex.D1 and D2, was that he was the son of Med Singh. He specifically asserted that he was never adopted by Chironji Devi and after the death of his father Med Singh, he performed the last rites as his son. As per his own assertions, plaintiff never lived with Chironji Devi nor she lived with him. Rather he called her mausi and not mother. It was observed by the Ld. Ist Appellate Court that at this belated stage, the plaintiff could not take the plea that this admission was based on some ignorance of fact. The plaintiff was the son of Med Singh and his first wife and the plea that he was 10 days old at the time of adoption, was not believed by the Ld. Ist Appellate Court on the ground that the parties i.e. Mehtab Singh and Chironji Devi were too young at that time and there was no necessity for them to adopt a son. There was no documentary evidence on record to show that plaintiff was the son of Chironji Devi. It is on record that the family pension of Mehtab Singh continued to be received by Chironi Devi throughout as widow of Mehtab Singh. The importance of the documentary evidence produced by the plaintiff before the ld. Trial court, diminished before the Ist Appellate Court, when it was contradicted. Therefore, the findings recorded by the ld. Trial court on this issue were reversed by the Ld. Ist Appellate Court. The Ld. Ist Appellate Court affirmed the findings of the ld. Trial court on Issue No.1 in the absence of any attack having been raised by the counsel for the parties. RSA No. 571 of 1985 9 17. The Ld. Ist Appellate Court while dealing with the question of the effect of Will and decrees dated 10.10.1974 and 20.10.1977, observed that the ld. Trial court disallowed the claim of the plaintiff on the ground that he was adopted by Mehtab Singh and Chironji Devi and resultantly could not succeed to the estate of his natural father, in the presence of his brothers i.e. defendants. The Ist Appellate court observed that these findings could not be now maintained in view of the necessary corollary to the foregoing discussion that plaintiff was not proved to be the adopted son of Chironji Devi. He could, therefore, very well succeed to the estate of Med Singh,being his natural father. The findings of the ld. Trial court on Issue Nos. 4 and 5 were ordered to be modified to the extent above. The Ist Appellate Court rejected the claim of the plaintiff-appellant against his natural brothers and Chironji Devi for the grant of perpetual injunction respecting the property transferred by her in their favour i.e brothers of the plaintiff. The suit of appellant filed against Khacheru and Chironji Devi was also dismissed in toto by the Ld. Ist Appellate Court. 18. Aggrieved against the findings of the ld. Ist Appellate Court, the appellant Udai Bir Singh preferred these regular second appeals. 19. Learned counsel for the appellant submitted that the findings recorded by the Ld. Ist Appellate Court on Issue Nos. 2 and 3 are erroneous and cannot be sustained. He stated that it was rightly held by the ld. Trial court that Udai Bir Singh was adopted son of Mehtab Singh and Chironji Devi and Chironji Devi was treating him as his son. The adoption under the customary law amounts to appointment of an heir in respect to the estate of Mehtab Singh. He further submitted that the Ld. Appellate Court erred in relying upon Ex. D/1, statement of the appellant, where he withdrew the RSA No. 571 of 1985 10 admission made by him. 20. On the other hand, learned counsel appearing for the respondents vehemently argued that the findings recorded by the Ld. Ist Appellate Court on the important issues are correct and the appeals deserve to be dismissed. 21. I have heard learned counsel for the parties and perused the record. 22. The only short controversy arises in these appeals is “Whether Udai Bir Singh plaintiff is the adopted son of Smt Chironji Devi? If so its effect.” 23. Admitted facts are that Med Singh, who died in 1978, had four sons i.e Udai Bir Singh plaintiff-Appellant; Mohinder Partap Singh; Om Partap Singh and Sham Partap Singh defendants no.1 to 3. Smt Ashrafi mother of Udai Bir Singh expired when he was a few days old. Thereafter, Med Singh got married to one Kashmiri from whom Mohinder Partap Singh; Om Partap Singh and Sham Partap Singh, besides two daughters, were born. As per the birth certificate, plaintiff Udai Bir Singh was born on 26.10.1915, but as per service record, his date of birth was 3.12.1917. 24. Since the alleged adoption was, either of the year 1915 or 1917, when Udai Bir Singh was of only few days, the only star witness available is Smt Chironji Devi, who is the best witness to depose about the adoption by her i.e. for and on behalf of her husband Mehtab Singh. It is alleged by the plaintiff that Mehtab Singh, authorized her to take Udai Bir Singh in adoption by a postal letter, which is not available on record. No instrument was reduced into writing. No direct evidence of adoption is available on the record. When direct evidence is not available, the Court has to scrutinize the RSA No. 571 of 1985 11 positive and negative circumstantial evidence carefully. Being a family dispute no common relative of the parties came forward to support the adoption or to prove that Udai Bir Singh had been treating Smt. Chironji Devi as his mother and Chironji Devi had been treating Udai Bir Singh as her son. 25. Smt. Chironji Devi appeared as DW5 and deposed on oath that Udai Bir Singh was never adopted by her. She had been receiving the pension and other service benefits from the Army, of her retired husband Mehtab Singh. After the death of her husband, she sold the land to one Kacherru and defendants 1 to 3. She stated that Udai Bir Singh had been staying with his father Med Singh, who got him educated and performed his marriage. After the death of Med Singh, turban ceremony was tied to Udai Bir Singh, being the eldest son of his father, in which she also participated. In the service record, Udai Bir Singh was described as the son of Med Singh and not of Mehtab Singh. Mere nomination for receiving some war- rewards after the death of Mehtab Singh is not sufficient proof of his adoption by Smt. Chironji Devi. Nomination may be due to the reason that Udai Bir Singh was the eldest educated son serving the police department and Smt. Chironji Devi was illiterate. Moreover, it is not disputed that Udai Bir Singh had not received any service benefit of Mehtab Singh. The nomination is done only for the purpose of collection of the money from the department, bank, post office or insurance company but it is not a proof of being a successor of the deceased. A nominee is only a trustee, for and on behalf of the natural successors, in the interest of the deceased. PW7 Mool Chand proved that as per the school record, Udai Bir Singh is shown to be the son of Med Singh. The erroneous admission made in earlier proceedings RSA No. 571 of 1985 12 by Udai Bir Singh to the effect that he is the adopted son of Mehtab Singh cannot be used against him. DW5 Smt. Chironji Devi has categorically stated that neither Udai Bir Singh treated her as his mother nor she treated Udai Bir Singh as her son. Statements Ex.D.1 and Ex.D.2 made by Udaii Bir Singh,plaintiff-appellant goes to prove that he was never adopted by DW5 Chironji Devi. Udai Bir Singh had been addressing DW5 as her mausi i.e mother's sister. No public witness came to prove that the relatives and friends have been considering Udai Bir Singh as the son of Smt. Chironji Devi. The recital of the 'Will' allegedly executed by Med Singh in favour of Mohinder Partap Singh, Om Partap Singh and Sham Partap Singh, excluding Udai Bir Singh from his inheritance is erroneous. The learned Ist Appellate Court has rightly disbelieved the depositions of PW8 Banwari Lal and PW9 Mohan Singh, being discrepant on material points. There is no reason to discard the testimony of DW5 Chironji Devi, which has been corroborated by DW6 Lal Singh. While deciding issue no.2, regarding the adoption of Udai Bir Singh by DW5 Smt Chiroji Devi, the learned trial court held that the Udai Bir Singh was adopted by defendant No.4 i.e. DW5 Smt. Chironji Devi and for the reasons recorded above, that finding being erroneous, has been rightly reversed by the Ist Appellate Court. This Court affirms the findings of the Ist Appellate Court by holding that it is not proved that Udai Bir Singh was ever adopted by DW5 Smt. Chironji Devi or Mehtab Singh and as a corollary, it is proved that Udai Bir Singh is the natural son of Med Singh i.e in the sense of being a successor. 26. Now, this Court will decide the effect of court decrees dated 10.10.1974 and 28.10.1977 suffered by Med Singh in favour of his other sons Mohinder Partap Singh, Om Partap Singh and Sham Partap Singh and RSA No. 571 of 1985 13 execution of alleged Will dated 30.1.1978. The learned trial Court decided issues No. 4 and 5 against Udai Bir Singh and in favour of his other brothers. The findings on these issues of the learned trial court are erroneous and perverse. In Para No. 54 of the judgment of the learned Ist Appellate Court , it is observed as under: “It was conceded by the learned counsel appearing on behalf of other sons of Med Singh that under the law the father could neither will away or make any other alienation in respect of ancestral property so as to deprive his son plaintiff. Indisputably, the suit property held by Med Singh was ancestral in nature, as was also held by the learned lower court under issue no.13 A. The decrees suffered by him or the will executed in favour of sons defendants could not, therefore, stand. It was not at all within the province of Med Singh to make these alienations in respect of the suit property ancestral in character. As noticed above, that proposition was not disputed by the learned counsel for the legatees.” 27. It is the admitted case of the parties that the property held by Med Singh is ancestral in nature. There are sufficient revenue documentary evidence available on record to prove the ancestral nature of the land held by Med Singh. Both the courts below have concurrently held that the suit property is ancestral property and this Court finds no scope to interfere in these findings regarding ancestral nature of land. So, the civil court decrees dated 10.10.1974 and 28.10.1977 suffered by Med Singh in favour of Mohinder Partap Singh; Om Partap Singh and Sham Partap Singh are illegal, void and will not effect the inheritance rights of the legal heirs of RSA No. 571 of 1985