Regular Second Appeal No. 2828 of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2828 of 2005 Date of decision: 11.08.2009 Lal Singh adopted son of Ran Singh s/o Shri Ganga Ram son of Shri Gajju, r/o village Bataur, Tehsil and District Panchkula. ..... Appellant. Versus 1. Ran Singh, 2. Sher Singh, both sons of Ganga Ram, s/o Shri Gajju, 3. Karan Pal, 4. Dharam Pal, 5. Bhim Singh, sons of Shri Sher Singh son of Sh. Ganga Ram, all rs/o village Bataur, Tehsil and District Panchkula. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Bhag Singh, Advocate for the appellant. Respondent no.1 ex-parte. Mr. Vivek Suri, Advocate for respondent nos. 2 to 5. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 25.09.2004, rendered by the Court of Civil Judge (Senior Division), Regular Second Appeal No. 2828 of 2005 2 Panchkula, vide which it dismissed the suit and the judgment and decree dated 24.03.2005, rendered by the Court of Additional District Judge, Panchkula, vide which the appeal was dismissed. 2. According to the plaintiff (now appellant), Ran Singh, defendant no.1 (now respondent no.1) was un- married and issueless. He adopted the plaintiff as his son according to the Custom and Hindu religious rites. The adoption deed was executed on 17.04.1996. It was stated that since the date of adoption, the plaintiff was being brought up by defendant no.1, as his own son and he too treated him as his father. It was further stated that after adoption by defendant no.1, the plaintiff became the owner of the suit property. However, defendant no.1 alongwith defendant no.2 suffered a consent decree dated 26.02.1992, in favour of defendant nos. 3 to 5 (now respondents), who are the sons of defendant no.2 and nephews of defendant no.1, by concealing the true and material facts. The decree was challenged as illegal and void, against the rights of the plaintiff. It was stated that since the property, in dispute, was ancestral coparcenary property, in the hands of defendant no.1, the plaintiff had right by birth/adoption therein, and, as such, Ran Singh, could not suffer a decree of the property, in favour of Regular Second Appeal No. 2828 of 2005 3 defendant nos. 3 to 5. The defendants were many a time asked to get cancelled the illegal decree, but to no avail. On their final refusal, to accede to the request of the plaintiff, left with no alternative, a suit for declaration was filed. 3. Defendant nos. 2 to 5, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded that the suit was not maintainable; and that the plaintiff had no locus standi to file the suit. It was denied that the plaintiff (now appellant) was ever adopted as his son by defendant no.1. It was further stated by them that the plaintiff had been residing in the house of his maternal uncle, Dharam Pal and never resided with defendant no.1. It was denied that the property, in dispute, was the ancestral coparcenary property, in the hands of defendant no.1. It was further stated that the decree suffered by defendant nos. 1 and 2, in favour of defendant nos. 3 to 5, was legal and valid. The remaining averments, contained in the plaint, were denied being wrong. 3-A. Defendant no.1, in his written statement, admitted the claim of the plaintiff. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- Regular Second Appeal No. 2828 of 2005 4 “1- Whether judgment and decree dated 26.02.1992 passed in case no. 39 of 1992 is illegal, null and void, ineffective on the rights of the plaintiff alongwith mutation no. 694 ?OPP 2- Whether plaintiff is entitled to relief by permanent injunction as claimed ?OPP 3- Whether suit is not maintainable ?OPD 4- Whether plaintiff has no locus standi ?OPD 5- Relief.” 5. The parties led evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court, dismissed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was also dismissed by the Court of Additional District Judge, Panchkula, vide its judgment and decree dated 24.03.2005. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case, carefully. Regular Second Appeal No. 2828 of 2005 5 9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the Courts below, mis-read and mis- appreciated the evidence and recorded perverse finding that the plaintiff (now appellant) was not the adopted son of Ran Singh (defendant no.1)? 2- Whether the findings of the Courts below that the decree was legal and valid, are perverse, being not based on the correct appreciation of evidence and law on the point? 3-Whether the Courts below fell into a legal error in holding that the suit for declaration without seeking possession, was not maintainable ? 10. The Counsel for the appellant, submitted that the Courts below recorded perverse finding on account of mis- reading and mis-appreciation of evidence that the plaintiff (now appellant) was not the adopted son of Ran Singh, defendant no.1 (now respondent no.1). He further submitted that the Courts below were wrong in coming to the conclusion that the decree suffered by defendant nos.1 and 2, in favour of defendant nos. 3 to 5, was legal and valid. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for respondent nos. 2 to 5, submitted that the Courts below duly scrutinized and appreciated the evidence and rightly came to the conclusion, that legal and valid adoption of the plaintiff by Ran Regular Second Appeal No. 2828 of 2005 6 Singh, defendant no.1, did not stand proved. He further submitted that even the decree was rightly held to be legal and valid by the Courts below. He further submitted that the judgments and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. Ran Singh, defendant no.1, Sher Regular Second Appeal No. 2828 of 2005 7 Singh, defendant no.2 and Ajmer Singh, as is evident from the evidence on record, are the real brothers. The plaintiff is the son of Ajmer Singh. Ran Singh, defendant no.1, Sher Singh, defendant no.2, and Ajmer Singh are the sons of Ganga Ram. The first question that fell for decision, before the Courts below, was, as to whether the plaintiff was the adopted son of Ran Singh, defendant no.1 or not. No doubt, adoption deed(Ex.P-7) was proved by Rajbir Singh, Lambardar, (PW-5), one of the attesting witnesses thereof, and Ved Parkash Gupta,(PW-2), the scribe thereof. Mere proof of the adoption deed, did not prove the valid adoption of the plaintiff (now appellant).It was required of the plaintiff, to prove the same by leading evidence, as to whether, the ceremony of give and take took place. The plaintiff could be given in adoption by his natural parents i.e. Ajmer Singh,his father and Nirmla, his mother. Ved Parkash, (PW-2) stated that Ajmer Singh, natural father of the plaintiff, was not accompanied by his wife, when the alleged document i.e. adoption deed(Ex.P-7) was executed. He also stated that Smt. Nirmla, the natural mother of the plaintiff, did not sign or thumb mark this document. Not only this, the register of the deed writer in which the entry, with regard to the document was made, was in a loose form, which created a lot of doubt, regarding the irregularity, in maintaining the said register. Regular Second Appeal No. 2828 of 2005 8 Rajbir Singh, Lambardar, (PW-5) an attesting witness of the adoption deed, also stated that the natural mother of the plaintiff (now appellant), did not sign or thumb mark the adoption deed (Ex.P-7). When it was not signed or thumb marked by Nirmla , mother of the plaintiff, as per the statement of Ved Parkash Gupta,(PW-2) and Rajbir Singh, Lambardar (PW-5) in their presence, it is not known, as to how her thumb impressions was shown to be affixed at the bottom of the same. Her thumb impression was allegedly obtained lateron, just with a view to provide authenticity to this document. This proved the very execution of the document, to be doubtful. 13. Coming to the ceremonies, which were allegedly performed, at the time of the alleged adoption, the evidence of Nirmla, (PW-6), natural mother of the plaintiff, is very significant. She stated that the ceremonies were performed, at the time of adoption by Naresh Pandit. She admitted that he (Naresh Pandit) was alive. However, Naresh Pandit, was not examined to prove as to which ceremonies were performed, at the time of the alleged adoption. Lal Singh, plaintiff,(now appellant), (PW-7) stated that he studied upto 3rd class in Govt. Primary School, Bataur, whereas, Smt. Nirmla, (PW-6), his mother, stated that he studied up to 10th class, and Rajbir Singh, Lambardar, (PW-5) an attesting witness to Ex.P-7 Regular Second Appeal No. 2828 of 2005 9 (adoption deed), stated that the plaintiff was residing with his maternal uncle Dharampal. Even Ran Singh, DW-4, stated that the natural parents of the plaintiff had given him education and he had been residing with them even after adoption. Admission register of Raj Model School, Barwala, was produced by Raj Gupta, Principal. She stated that an application (Ex.D-8), dated 20.11.1982 was moved by Ajmer Singh, father of the plaintiff (now appellant)for the admission of his son, in 5th Class. Copy of the admission register of 5th class is Ex.D-9. In all these documents, the name of the father of the plaintiff, is recorded as Ajmer Singh. Krishan Baldev, (DW-3), teacher of Govt. Senior Secondary School, Barwala, deposed that the plaintiff was admitted in 9th-A Class on 17.05.1994 and his date of birth was recorded as 10.10.1979. The name of his father was recorded as Ajmer Singh. He proved copy of the relevant entry in the register as Ex.D-10. In the detailed marks certificate of Middle Class Examination, copy whereof is Ex.D-12 and in the copy of admission form, the name of the father of the plaintiff was also written as Ajmer Singh. It was also proved that the plaintiff studied upto 10+2 class. Since, in all these documents, the name of the father of the plaintiff, was recorded as Ajmer Singh, this fact also strengthened the case of the defendant nos.2 to 5(now respondents) that he was never adopted, as his Regular Second Appeal No. 2828 of 2005 10 son by Ran Singh, defendant no.1. Had he been adopted as a son by Ran Singh, defendant no.1, right from the childhood, then the name of his father, would have been recorded in all the aforesaid documents, as Ran Singh and not as Ajmer Singh. It was also held in Madhusudan Dass v. Smt. Narainabai and others, AIR, 1983 (SC) 114 that a person, who seeks to displace the natural succession, to the property, by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption, and its validity. The evidence, in proof of adoption, should be free from all suspicions and fraud and so consistent and probable, as to give no occasion for doubting its truth and nonetheless the fact of adoption must be proved in the same way, as any other fact. The Courts below on proper scrutiny, and appreciation of evidence, rightly came to the conclusion, that the plaintiff failed to prove that he was adopted by Ran Singh, as his son. 14. The next question, that fell for determination was, as to whether, the property, in dispute, in the hands of Ran Singh, was ancestral coparcenary property or not. It was proved, from the evidence, on record, that Ran Singh, inherited the property, from his father Ganga Ram. Ran Singh was unmarried and issueless.After inheritance of property from his father Ganga Ram, in the absence of any son, grandson or great Regular Second Appeal No. 2828 of 2005 11 grandson, he became the exclusive owner thereof. The land, in dispute, in the hands of Ran Singh, was thus, not ancestral coparcenary property. He could deal with the same, in any manner, he liked. He could suffer a consent decree in favour of defendant nos. 3 to 5, his nephews. The Courts below were, thus, right, in coming to the conclusion, on proper scrutiny and appreciation of evidence, that the land, in dispute, in the hands of Ran Singh, was not the ancestral coparcenary property. 15. The next question, that fell for decision, before the Courts below, was as to whether, the decree dated 26.02.1992 suffered by Ran Singh and Sher Singh, in favour of defendant nos. 3 to 5 was legal and valid or not. Ran Singh and Sher Singh suffered a decree in respect of ½ share of the land, in favour of defendant nos. 3 to 5. In respect of ½ share of the land, Ran Singh, suffered decree, in favour of the plaintiff. It is evident from the copy of plaint Ex.P-3, of the earlier suit, that a family settlement, was arrived at, between the parties two years, before the filing of the same. Defendant nos. 3 to 5 became the owners in possession of the land, in dispute, on the basis of family settlement. The decree only recognized the pre-existing title of defendant nos. 3 to 5 on the basis of family settlement, and did not create title, in the immovable property, worth more than Rs.100/- in them, for the first time. The object of the Regular Second Appeal No. 2828 of 2005 12 family arrangement, is to protect the family, from long drawn litigation of perpetual strifes, which mar the unity and solidarity of the family and create hatred and bad blood, between various members of the family. A family arrangement, is, undoubtedly, a milestone in the administration of social justice. That is why the term `family' has to be understood, in a wider sense, so as to include within its fold, not only close relations, or legal heirs, but even those persons, who may have some sort of antecedent title, a semblance, or a claim or even if they have spes succession so that future disputes are sealed for ever and the family instead of fighting claims inter-se, and wasting time, money and energy, on such fruitless litigations, is able to devote its attention, to more constructive work, in the larger interest of the Country. The Courts have, therefore, leaned in favour upholding a family arrangement, instead of disturbing the same, on technical or trivial grounds. 16. In other words, to put the binding effect, and the essentials of a family settlement, in a concretized form, the matter may be reduced into the form of the following propositions, as held in Kale and others Vs. Deputy Director of Consolidation and others, AIR, 1976, Supreme Court, 807, a case decided by a bench of three Judges of the Apex Court: - Regular Second Appeal No. 2828 of 2005 13 “(i) The family settlement must be a bona fide one so as to resolve disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (ii) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (iii) The family arrangement may be even oral in which case no registration is necessary; (iv) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for the information of the court for making necessary mutation. In such a case, the does not create or extinguish any right in immovable properties, and, therefore, does not fall within the mischief of Section 17(2) (sic) Sec .17 (1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable; (v) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement having no title, but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (vi) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement, which is fair and equitable the family arrangement is final and binding on the parties to the settlement”. Regular Second Appeal No. 2828 of 2005 14 17. In Maturi Pullaiah Vs. Maturi Narasimham, AIR, 1966, Supreme Court, 1836, it was held that even if, there was no conflict or legal claims, but the settlement, was a bona fide one, it could be sustained by the Court. Similarly, it was also held that even the disputes, based upon ignorance of the parties, as to their rights, were sufficient to sustain the family arrangement. In Krishan Biharilal Vs. Gulabchand (AIR, 1971, Supreme Court, 1041), it was pointed out that the word family had a very wide connotation and could not be confined only to a group of persons, who were recognized by law, as having a right of succession or claiming to have a share. To consider a settlement, as a family arrangement, it is not necessary, that the parties to the compromise should all belong to one family. In S. Shanmugam Pillai Vs. K. Shanmugan Pillai (AIR, 1972 Supreme Court, 2069), the entire case law, was discussed, and the Apex Court, observed that if, in the interest of the family properties, or family peace the close relations had settled their disputes amicably, the Court would be reluctant to disturb the same. It was further observed that the Courts generally leaned, in favour of the family arrangements. In Ramgouda Annagouda Vs. Bhausaheb (AIR, 1927 Privy Council, 227), there were three parties, to the settlement of a dispute, concerning the property of the deceased person. These were the widow of the deceased, the brother of the widow, and the Regular Second Appeal No. 2828 of 2005 15 son-in-law of the widow. It was obvious, therefore, that in the presence of the widow neither her brother nor her son-in-law could be regarded, as the legal heirs of the deceased. Yet, having regard to the near relationship, which the brother, and the son-in-law, bore to the widow, the Privy Council held that the family settlement by which the properties were divided amongst these three parties, was a valid one. In Kale and other's case (supra) , Lachman died leaving a grandson and two daughters. The grandson had no legal title, in the property of Lachman, so long as the daughters were there, still as the settlement was made, to end the disputes and to benefit all the near relations of the family, it was accepted. The principle of law, laid down, in Sahu Madho Das Vs. Makan Ram (1955(1) SCR 22) was to the following effect: - “It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, such party relinquishing all claims to property other than that falling to his share and recognizing the right of others, as they had previously asserted to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned, and, therefore, no conveyance is necessary”. Regular Second Appeal No. 2828 of 2005 16 Thus, it is clear, that the concept of family settlement, has been construed, in a wider sense, by the Apex Court and other Courts in India. In such a situation, even if, one of the parties to the settlement had no apparent antecedent title, but under the arrangement, the other party relinquishes all its claims or title, in favour of such a person, and acknowledges him, to be the sole owner, then antecedent title was to be presumed, and the family settlement was liable to be upheld. In Tek Bahadur Bhujil Vs. Debi Singh Bhujil and others (AIR, 1966, SC, 292) a case decided by a bench of four Judges of the Apex Court, it was held as under: - “Family arrangement as such, can be arrived at orally. Its terms may be recorded, in writing, as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which the future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about the document, as such, that the document requires registration because it is then that it would amount to a document or title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration u/s 17 of the Registration Act”. 18. The facts of the aforesaid authority, reveal Regular Second Appeal No. 2828 of 2005 17 that the family arrangement was attacked, on the ground, that M was not a party thereto. M was not shown to keep any property for herself, in arrangement, but the statements of the parties revealed that the arrangement was arrived at, by the consent of M. It was, thus, held that M was a party to the arrangement, and the fact that