RSA No. 1234 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1234 of 1985 Date of Decision: 12.03.2010 Khidmat Singh ..Appellant Vs. Shri Joginder Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Punia, Advocate, for the appellant. Mr.K.S.Boparai & Mr.C.S.Bagri, Advocates, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This appeal by the defendant/appellant is directed against the judgment and decree dated 11.8.1984, passed by the learned Courts below vide which suit for possession filed by the plaintiff/respondent No.1 was RSA No. 1234 of 1985 2 ordered to be decreed. Plaintiff filed suit on the pleadings, that Jaimal Singh had three sons, namely Sardar Kehar Singh, Sardar Sucha Singh and Sardar Puran Singh. Plaintiff Joginder Singh was son of Kehar Singh, whereas defendant/appellant though son of Kehar Singh was said to have been adopted by Sucha Singh. It was the case set up by the plaintiff that Sucha Singh, brother of Kehar Singh did not marry but he adopted Khidmat Singh appellant vide adoption deed dated 15.4.1963, during his life time. Sucha Singh died on 5.8.1978. Kehar Singh, father of the plaintiff Joginder Singh had one third share in the suit land as detailed in the head-note of the plaint. He executed a Will dated 16.10.1969 in favour of the plaintiff, in lieu of services rendered by him. Kehar Singh died on 24.1.1970 and the plaintiff, therefore, became exclusive owner of the suit property, both immovable and movable left by him. It was further pleaded, that defendant No.1 after few days of the death of Kehar Singh orally exchanged the suit land in lieu of 8 bighas of land in village Mohi, which was in the name of his wife. After the exchange, Khidmat Singh appellant cultivated the land of village Dhallian and plaintiff cultivated the land in village Mohi. In the month of March, 1977 the appellant/defendant No.1, took possession of land of village Mohi from the plaintiff. When inquiries were made by the plaintiff/respondent, it came to his knowledge that appellant got mutation sanctioned in his favour of ½ share of the suit land. He further mortgaged his share, with defendant Nos.2 & 3. When plaintiff/respondent demanded the possession of land of RSA No. 1234 of 1985 3 village Dhalian from the defendants, defendant No.1 delivered possession of half share of land, which was in his name but refused to deliver the possession of remaining half share. Mutation in favour of the defendant/appellant was claimed to be illegal and not binding on the rights of the plaintiff/respondent. Defendant/appellant had also illegally mortgaged 1/6th share in the suit land, who forcibly took possession of the suit land about two years prior to the filing of the suit. Plaintiff/respondent sought possession on the basis of the Will and in view of adoption of defendant No.1. Suit was contested. Defendant No.2 appeared but later on was proceeded against ex parte. Appellant/defendant No.1 took preliminary objection that suit of the plaintiff was barred by principles of res judicata, and also that it was barred, under Order 2 Rule 2 of the Code of Civil Procedure. Locus standi of the plaintiff to file suit was also challenged. However, Pedigree table was admitted and also the fact that Sucha Singh was not married. The appellant denied the adoption of Khidmat Singh by Sucha Singh, and the adoption deed was said to be, not binding on the rights of the appellant. Appellant claimed inheritance of his share of property from Kehar Singh. It was also the pleaded case of the defendant/appellant that Sucha Singh had executed a registered gift deed regarding his property, in favour of Shamsher Kaur wife of the appellant. It was admitted that Kehar Singh was owner of 1/3 share of disputed property. Kehar Singh in addition, also owned landed property, i.e. and a house in village Mohi. It was claimed RSA No. 1234 of 1985 4 that mutation was wrongly sanctioned in favour of the plaintiff/respondent. Execution of the Will was denied. Will was said to be illegal, void, ineffective, against the rights of the appellant, on the plea that the property in dispute was joint Hindu family coparcenary property and therefore, Will could not be executed qua the coparcenary property. Defendants Nos.2 & 3 were said to be in possession and it was prayed that the suit be dismissed. In the re-application averments made in the written statement were specifically denied and those made in the plaint were reiterated. On the pleadings of the parties the learned trial court framed the following issues: 1. Whether the suit is barred by the principles of res judicata? OPD 2. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 4 (a) Whether the defendant was adopted by Sucha Singh during his life time. If so, its effect? OPP 5. Whether Kehar Singh executed a valid will dated 24.11.1970 in a sound disposing mind? OPP 5(a) Whether the suit land was joint Hindu Family coparcenary RSA No. 1234 of 1985 5 property and Kehar Singh was not competent to execute the will regarding this land? OPD 6. Whether the plaintiff is entitled to the possession prayed for? OPP 7. Relief. Issues No.1, 2 and 4 were not pressed and therefore, these issues were decided in favour of the plaintiff and against the defendants. On issue No.3, it was held that the suit was filed by the plaintiff on the basis of Will, and there was nothing to show as to how the plaintiff/ respondent did not have locus standi, to file the suit. Accordingly issue No.3 was decided against the defendants. On issue No.4 (a), learned trial court, on appreciation of evidence held that the appellant/defendant, was adopted by Sucha Singh during his life time. Finding recorded was that the appellant was adopted, when he was aged about 6-7 years, when Panchayat was convened in the village, and appellant was given in adoption by Kehar Singh to Sucha Singh. Since the date of adoption he was living with Sucha Singh as his son. The learned trial court held that the fact of adoption was corroborated by execution of adoption on 15.4.1963 which was registered on 18.4.1963. Adoption was proved by plaintiff, who appeared as PW 1. There was also evidence of PW 3 Gurbachan Singh and Dharm Chand PW 4 to prove the adoption. Factum of adoption was not challenged in the RSA No. 1234 of 1985 6 cross-examination. Learned trial court further held that factum of adoption of Khidmat Singh by Sucha Singh was also mentioned by Kehar Singh in his Will Ex.P.1. Thus, issue No.4-A, was decided in favour of the plaintiff. On issue No.5 it was held that Kehar Singh had executed a Will dated 24.11.1970, in a sound disposing mind as the Will was proved by the attesting witnesses. The learned trial court held, that factum of execution of Will, was merely denied and therefore, version of the defendant/appellant could not be accepted. On issue No.5 (a), learned trial Court proceeded to hold that the property was Joint Hindu Family property. However, the learned trial court held that in view of the adoption, defendant/appellant ceased to be the member of coparcenary property. It was, therefore, held that though property was joint Hindu family property, but defendant/appellant had no right to challenge the Will, as he was not the member of family of Kehar Singh. Learned trial court also held that plaintiff/respondent was entitled to inherit the entire estate left by Kehar Singh, by way of survivorship because after his death, plaintiff/respondent was the only son, who was to inherit the property left by his father. Issue No.5 (a) was decided in favour of the plaintiff/respondent. Issue No.6 was also decided on the basis of the Will. The finding on issue No.5 (a) returned was that plaintiff being only legal heir of Kehar Singh, was entitled to possession of the suit land. The suit was decreed. In appeal, findings of the learned trial court were affirmed. RSA No. 1234 of 1985 7 Learned lower appellate court held, that appeal deserved to be dismissed even on the point of limitation, as judgment and decree passed by the learned trial court was dated 24.11.1980, whereas appeal was presented before the learned District Judge, Ludhiana on 18.5.1981 on an uncertified copy. Appeal was, therefore, held to be filed beyond period of 30 days. The learned lower appellate court held that there was no application for condonation of delay in filing the appeal. It was held, that the appeal was required to be filed along with an application for condonation of delay. In spite of finding holding appeal to be time barred, findings on merit were also affirmed. Mr.G.S.Punia, learned counsel appearing on behalf of the appellant raised the following substantial questions of law for consideration by this Court: 1. Whether the judgment and decree passed by the learned courts below is perverse being outcome of taking into consideration inadmissible evidence which was beyond pleadings? 2. Whether in spite of the adoption, the adopted son was entitled to claim inheritance in the property being coparcener as the property was proved to be joint Hindu coparcenary property? 3. Whether appeal could be dismissed when it was filed within limitation along with application seeking permission to file appeal without certified copy? RSA No. 1234 of 1985 8 In support of the substantial questions of law referred to above, Mr.G.S.Punia, learned counsel for the appellant, referred to the pleadings in the plaint, to contend that it was pleaded in the plaint, that defendant/appellant was adopted by way of adoption deed dated 15.4.1963. Therefore, oral evidence led to prove adoption, prior to execution of the adoption deed being beyond pleadings, could not be looked into being inadmissible evidence. The findings of learned courts below being perverse were not sustainable in law. It was also the contention of the learned counsel for the appellant, that on the date of execution of the adoption deed dated 15.4.1963, appellant was aged 30 years, therefore, could not be taken/given in adoption. On the basis of contentions referred to above, learned counsel for the appellant contended, that the findings recorded by the learned Courts below, holding that the defendant/appellant was adopted by Sucha Singh are perverse and not sustainable in law. This contention of the learned counsel for the appellant, deserves be noticed to be rejected. Reading of the plaint shows that it was specifically asserted that the appellant/defendant, was adopted when he was 6-7 years of age. The factum of adoption, was duly proved by unrebutted evidence, as the statements of the witnesses on the question of adoption, were not challenged in the cross-examination. The adoption deed was, in fact, a memorandum, evidencing the adoption of the defendant/appellant at the age of 6-7 years. It, therefore, cannot be said that the judgment and RSA No. 1234 of 1985 9 decree passed by the learned Courts below is based on inadmissible evidence as contended, nor the findings can be said to be perverse. Learned counsel for the appellant, thereafter referred to proviso (b) to Section 12 of Hindu Adoption and Maintenance Act, 1956, which reads as under:- ““12. Effect of adoption- xx xx xx (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;” The contention of the learned counsel for the appellant, was that once the findings have been recorded, that the property in the hands of Kehar Singh was joint Hindu coparcenary property, the defendant/appellant had interest in the suit property since his birth. Therefore, in spite of adoption, he was to inherit property, as he had a vested right in the said property. In support of this contention, learned counsel for the appellant placed reliance on the judgment of Hon'ble Andhra Pradesh High Court in the case of Yarlagadda Nayudamma etc. Vs. The Government of Andhra Pradesh and others AIR 1981 Andhra Pradesh 19, wherein Hon'ble Andhra Pradesh High Court was pleased to lay down as under:- RSA No. 1234 of 1985 10 “3. From the provisions of the aforesaid Statute it is quite manifest that the Legislature has enacted a special provision i.e. Proviso (b) to Section 12 of the Act which is explicit and unequivocal in its language and intention. The property as per the said proviso (b) which vested in the adopted child before the adoption shall continue to vest in such person. It is further added that property will be subject to the obligations, if any, attached to the ownership of such property. Therefore it is the undoubted view of the Legislature that a person even after being given in adoption, takes along with him the property from his natural family which vested in him and continues to vest in him, adoption notwithstanding, whether that property vested in him either due to partition or otherwise. The texts of the Mitakshara Law, which we will presently see, are emphatic with regard to the vesting of the property in the coparcener. The property vests in a coparcener by birth and hence he gets a vested right in that property by virtue of inheritance. The position would have been probably different, if the proviso (b) was not enacted in Section 12. Be that as it may, in so far as the proviso (b) is concerned, it makes perfectly clear that the person even after his adoption, takes the property along with him which was earlier vested in that person. This view of ours is supported by Sh. S.V. Gupta, who has written commentary on Hindu Law of Adoption, Maintenance, Minority and Guardianship. While RSA No. 1234 of 1985 11 dealing with the proviso (b) to Section 12 the learned Author holds the view of ours, which is to the following effect:- “As regards property held by a son as the sole surviving coparcener in the natural family, there was, as stated earlier, a difference of opinion. But that difference does not exist under this Act; it is submitted that all property vested in the son in his natural family whether self- acquired, obtained by will or inherited from his father or other ancestor or collateral (which is not coparcenary property held along with other coparcener or coparceners) including property held by him as the sole surviving coparcener would not be divested on adoption but would continue to be vested and to belong to the son even after adoption. Under the old law a coparcener given in adoption would be divested of his interest in the coparcenary property of the natural family. That was the undoubted law. Does that law still continue or is it modified by cl.(b) of the proviso to S.12 of the Act? Under clause (b) any property vested in the adopted child before adoption continues to vest in such person. Can it be denied that the interest of a coparcener in the joint family property, though fluctuating, is a vested interest, whatever may be the extent of that interest? If the interest of a deceased coparcener can devolve upon RSA No. 1234 of 1985 12 his heirs mentioned in the proviso to Sec.6 of the Hindu Succession Act and not by survivorship, why can it not be said that by virtue of the provision of clause (b) the undivided interest of a person in a Mitakshara coparcenary property will not on his adoption, be devested but will continue to vest in him even after adoption. If the main provisions of Section 12 had stood alone it would have been possible to contend that by virtue of these provisions a son given in adoption would cease to be a coparcener and lose his interest in the coparcenary property. But clause (b) is an exception to the general rule contained in Section 12 and the main provisions of the section must be read subject to that exception.” “In short on adoption not only the property belonging to an adopted child in the natural family such as his or her self- acquired property, property inherited by him or her from other persons including his or her father or other ancestor and property held as a sole surviving coparcener in a Mitakshara property, but even the undivided interest of a male child in a Mitakshara coparcenary would pass with him as if he had separated from the coparcenary.” The second aspect of the observation which we made above viz., that under Mitakshara Law, a coparcener has a vested RSA No. 1234 of 1985 13 right in the property which he acquires by birth, is reinforced by various commentators on Hindu Law. While editing Mayne's Treatise on Hindu Law and Usage, Eleventh Edition. N. Chandrasekhara Aiyar, observed in paragraph 270 as follows:- “The undivided interest of a coparcener who leaves a widow does not go by survivorship to his male issue or to the other coparceners on his death; but it goes to her as his heir for the limited estate of a Hindu woman. While she cannot be in the strict sense a coparcener with the other members, her position will be analogous to that of member of an undivided family under the Dayabhaga Law with this possible difference that, as she is only to have the 'same interest' as her husband himself had the share to which she will be entitled at a partition may be liable to the same fluctuation caused by changes in the family as if she occupied the place of her husband or as the share of any member of an undivided Mitakshara family. “It follows from the conception of unobstructed heritage (apratibandhadaya) and of the sons' right vested by birth that an undivided son takes not only the paternal grand-father's property but also the property acquired by his father not strictly by inheritance but by virtue of his right by birth and only as unobstructed heritage.” “The Mitakshara and the other authorities following it RSA No. 1234 of 1985 14 are quite explicit on the matter. The very definition of unobstructed heritage makes no distinction between the property of the father and the property of the grand-father as far as the son's right to take it as unobstructed heritage is concerned. That the right vested by birth in the son extends to property acquired by the father is unequivocally stated in the Mitakshara (I. 1,23,27,33). Therefore it is a settled point that property in the paternal or the grand-paternal estate is by birth. The distinction between the son's equal right by birth is the grandfather's property and his unequal right by birth in the father's property is fully brought out by Vijnanesvara.”' 4. This apart, the coparcener has got every right under Section 30 of the Hindu Succession Act to will away his property or to dispose of or alienate in whichever way he desired, which he is entitled by birth. It may be, that at a time when he alienated or willed away, there may not have been definite declaration of the sons; but certainly he would be entitled to a particular share alone with other coparceners which could be given effect to by various modes of disposition. That presupposes that he had got an independent right by birth which might be dormant in certain cases and patent in other cases. From the foregoing what becomes apparent is that notwithstanding the adoption, a person in Mitakshara family has got a vested right even in the undivided property of his RSA No. 1234 of 1985 15 natural family which on adoption he continues to have a right over it. This, in our JUDGEMENT, is the undivided interpretation which has to be placed upon the provisions enacted in the proviso (b) to Section 12 of the Act; and to construe otherwise, would be causing violence to the explicit expression given in the language of the said proviso. If that is so it follows that Sh. Rama Prasad who would be entitled from his natural family as a coparcener by virtue of vesting, would continue to have a right over it and that property will have to be taken into account for the purpose of computation of the holding of the adoptive family. It, a fortiori, follows that the extent of the property vested in Sree Rama Prasad will have to be excluded from the holding of the father or the brother as the case may be in the natural family of the said Sree Rama Prasad. In the view we have taken, the order under revisions is manifestly misconceived and the same is set aside. In view of our answer, the Civil Revision Petitions may be posted before any learned Single Judge for due adjudication of the other points raised in the CRPs., in the light of the observations made with regard to the point under reference. The reference is accordingly answered.” Learned counsel for the appellant, also referred to the principles of Hindu Law by Mulla, regarding the view expressed, which RSA No. 1234 of 1985 16 reads under:- “ Proviso (B) Adoption did not have the effect under the Bengal school of Hindu Law (Dayabbaga Law) of divesting any property which had vested in the adopted son by inheritance, gift, or under any power of self-acquisition prior to his adoption. As regards cases governed by Mitakshara Law, there was some divergence of judicial opinion on certain aspects of the matter (494, Vol.1). The present section lays down the clear rule that any property that might have vested in the adoptee before the adoption, continues to vest in the adoptee, subject, of course, to any obligations attaching to the ownership of such property including the obligation of the adoptee to maintain relatives in the family of his other birth. The adopted person is not, by the fact of adoption, divested of any property already vested in him. It follows as a corollary to that rule that the fact of adoption should not operate to the prejudice of persons related to the adoptee in the natural family who had the right to claim maintenance from such adoptee. This proviso, as aforestated lays down that property vesting in an adoptee before the adoption continues to vest in him post his adoption, subject to certain terms and obligations. There is a controversy as regards the adoptee being divested of the coparcenary property in the family of his birth. The High RSA No. 1234 of 1985 17 Court of Andhra Pradesh has held that an adoptee retains his interest in the undivided property of the family of his birth, whereas the High Court of Bombay has, in Devgonda Patil Vs. Shamagonda Patil below, dissenting from the decision of the High Court of Andhra Pradesh, held that an adoptee cannot have a vested interest in the undivided family of his birth. The Court observed that the words 'vested property' related to property where indefeasible rights were created and thus, held that it would relate to property where full ownership was conferred. Since there was no question of full ownership in case of coparcenary property, such property of the family of his birth could not be said to vest in a coparcener after his adoption. The reasoning does not appear to be appropriate. The property which vested in the adoptive child at birth, as a member of the coparcenary would continue to vest in him, by the operation of law contained in the proviso, subject to the obligations and liabilities