R. S. A. No. 4639 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4639 of 2009 Date of Decision : February 02, 2011 Mahipal and others .... Appellants Vs. Kanshi Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashwani Talwar, Advocate for the appellants. Mr. B. S. Bedi, Advocate for respondent no. 1. Mr. R. S. Mamli, Advocate for respondents no.4, 6 to 8. * * * L. N. MITTAL, J. (Oral) : By this common judgment, I am disposing of 12 appeals i.e. R. S. A. No. 3236 of 2009 titled Mahipal and others vs. Amar Singh and others, R. S. A. No. 4492 of 2009 titled Amar Singh and others vs. Kanshi Ram and others, R. S. A. No. 4493 of 2009 titled Amar Singh and others vs. Kanshi Ram and others, R. S. A. No. 4494 of 2009 titled Amar Singh and others vs. Babu Ram and others, R. S. A. No. 4495 of R. S. A. No. 4639 of 2009 2 2009 titled Amar Singh and others vs. Kanshi Ram and others, R. S. A. No. 4639 of 2009 titled Mahipal and others vs. Kanshi Ram and others, R. S. A. No. 204 of 2010 titled Dharam Pal and others vs. Kanshi Ram and others, R. S. A. No. 205 of 2010 titled Manno Devi and others vs. Kanshi Ram and others, R. S. A. No. 586 of 2010 titled Sher Singh and others vs. Kanshi Ram and others, R. S. A. No. 587 of 2010 titled Mahipal and others vs. Kanshi Ram and others, R. S. A. No. 1810 of 2010 titled Rakesh Kumar vs. Babu Ram and others and R. S. A. No. 1811 of 2010 titled Rakesh Kumar vs. Mehar Singh and others. Five suits titled Kanshi Ram vs. Babu Ram etc. (for possession of 3/4th of the suit and, 1/4th already being in possession of the plaintiff), Amar Singh etc. vs. Kanshi Ram etc. for possession of the suit land, Manni Devi vs. Mehar Singh etc. for declaration, Rulia Ram etc. vs. Rakesh Kumar and another for declaration and Khazan Singh etc. vs. Rakesh Kumar etc. also for declaration were decided by the trial court by common judgment dated 28.03.2007. Suit titled Manni Devi vs. Mehar Singh etc., however, already stood dismissed under Order 9 Rule 8 of the Code of Civil Procedure (in short – CPC) vide order dated 07.01.2005, whereas all the remaining four suits were dismissed by learned Civil Judge (Junior Division), Jagadhari, vide common judgment and R. S. A. No. 4639 of 2009 3 decrees dated 28.03.2007 and by the same judgment, counter claim preferred by Rakesh Kumar was decreed for possession of the suit land along with mesne profits @ Rs.5,000/- per annum per acre from the occupants of the land i.e. Kanshi Ram and Babu Ram etc., as per their occupation. Against judgment and decrees of the trial court, ten first appeals were preferred by different parties. Learned Additional District Judge, Yamuna Nagar at Jagadhari, vide common judgment and decrees dated 08.01.2009, set aside the judgment and decrees of the trial court and thereby, decreed the suit filed by Kanshi Ram for possession of 3/4th share of 114 kanals 19 marlas land in suit along with mesne profits @ Rs.3,000/- per annum per acre from Babu Ram etc. and Harphool Singh, proportionate to the area under their unauthorized occupation, from the date of filing of suit till delivery of actual possession. Counter claim of Rakesh Kumar was accordingly dismissed. Suits titled Khazan Singh etc. vs. Rakesh Kumar etc. and titled Rulia etc. vs. Rakesh Kumar and another were partly decreed declaring decree dated 12.09.1992 passed in Civil Suit No.687 of 1992 titled Rakesh Kumar vs. Kishori as invalid and not binding on the reversionary rights of the reversioners of deceased Kishori. Feeling aggrieved, instant 12 Regular Second Appeals have been preferred. Facts from R. S. A. No. 4639 of 2009 titled Mahipal etc. vs. R. S. A. No. 4639 of 2009 4 Kanshi Ram etc. shall be referred to hereinafter. The dispute relates to inheritance of Kishori, who was owner of the entire suit land. During his lifetime, Kishori had gifted the suit land, but the said gift was held invalid by the Civil Court. Case of Kanshi Ram is that he is the nearest collateral of Kishori and is, therefore, his sole legal heir. Case of Rakesh Kumar is that he was adopted by Kishori as his son in the year 1986 and it was so declared vide decree dated 12.09.1992 passed in Civil Suit No.687 of 1992 titled Rakesh Kumar vs. Kishori, and therefore, he is sole legal heir of Kishori. Other parties have claimed that they are collaterals of Kishori and are, therefore, his legal heirs. I have heard learned counsel for the parties and perused the case file. In so far as relationship of all the parties with Kishori is concerned, it has been established on record that Kanshi Ram is one degree nearer to Kishori, as compared to relationship of the remaining parties with Kishori. Some of the counsel stated that Kanshi Ram is related with Kishori in fifth degree and other parties in sixth degree, whereas some counsel stated that Kanshi Ram is related with Kishori in sixth degree and other parties in seventh degree. Howeer, Mr. R. S. Mamli, Advocate, who is counsel for some of the parties, contended that the parties represented by R. S. A. No. 4639 of 2009 5 him are related to Kishori in sixth degree because their predecessors were held to be collateral of Kishori in fifth degree vide judgment dated 25.10.1978 (Ex.P-15), which had attained finality and Kanshi Ram is also related with Kishori in sixth degree and therefore, Kanshi Ram is not preferential heir of Kishori as compared with parties represented by Mr. Mamli. I have carefully considered the aforesaid contentions. From the judgments of both the courts below, it clearly emerges that relationship of Kanshi Ram with Kishori is one degree nearer, as compared to relationship of other parties with Kishori. The difference in perception might be because of the method of calculating the degrees of separation. It is undisputed that Kanshi Ram is one degree higher than the other parties. Section 12 of the Hindu Succession Act, 1956 (in short – the Act) is as under :- “12. Order of succession among agnates and cognates – The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder : Rule 1. - Of two heirs, the one who has R. S. A. No. 4639 of 2009 6 fewer or no degrees of ascent is preferred. Rule 2. - Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. Rule 3. - Where neither heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.” From the aforesaid provisions, it becomes clear that Kanshi Ram being one degree higher in relationship i.e. having one degree lesser than the other parties, would become the sole heir of Kishori in the case of intestate succession. Contention of counsel for the remaining parties, that they are also heirs of Kishori, cannot therefore be accepted. Provisions of Section 12 of the Act do not admit of any other interpretation. Learned counsel for the parties, except Kanshi Ram and Rakesh Kumar, also contended that the said parties are in adverse possession of the suit land and have, therefore, become owners of the suit land by adverse possession. This contention also cannot be accepted. Firstly, there is concurrent finding of fact recorded by both the courts below repelling this contention. Secondly, it is not established as to since when the said parties are allegedly in adverse possession. On the contrary, it appears that they came in possession on the basis of gift deed, which was subsequently R. S. A. No. 4639 of 2009 7 invalidated. However, in this view of the matter, possession of the said parties over the suit land would be permissive and not adverse. Kishori, who was owner of the suit land, died on 14.08.1997. During his lifetime, the gift remained binding on him and the reversioners could take benefit of invalidation of said gift only after his death. Kishori died on 14.08.1997 and immediately thereafter, Kanshi Ram filed this suit on 16.09.1997. Suit by Amar Singh etc. was also filed on 01.10.1997. Suit by Rulia Ram etc. as well as by Khazan Singh etc. had been filed on 10.05.1995 and 11.09.1995 respectively i.e. during the lifetime of Kishori himself. Suit by Manni Devi was filed on 12.06.1999, but the said suit stands dismissed for non- prosecution. In any event, suits by Kanshi Ram, Amar Singh etc. and Manni Devi were filed soon after the death of Kishori, whereas the remaining two suits by Rulia Ram etc. and Khazan Singh etc. had been filed during the lifetime of Kishori. Consequently, the question of occupants of the suit land having acquired title thereof by adverse possession would not arise. There is no illegality or perversity in concurrent finding recorded by the courts below to this effect. Consequently, the said finding does not warrant interference in second appeal. The main controversy that remains to be determined is regarding adoption of Rakesh Kumar by Kishori, as pleaded by Rakesh Kumar. Learned counsel for Rakesh Kumar vehemently contended that Rakesh Kumar, while aged about 10-10½ years in the year 1986, was R. S. A. No. 4639 of 2009 8 adopted by Kishori with all necessary ceremonies. It was contended that he was given in adoption by his natural parents i.e. Samay Singh and Ishro Devi to Kishori and laddoos were also distributed as per custom at that time. It was further contended that decree dated 12.09.1992 was passed declaring Rakesh Kumar to be adopted son of Kishori. It was pointed out that Kishori thereafter filed suit against Rakesh Kumar challenging said decree dated 12.09.1992, but Kishori later on withdrew the said suit and thus, said decree had attained finality. It was also pointed out that Kishori sent letter dated 30.11.1992 and also letter dated 10.02.1993 (Ex.D-3) to the school praying for recording Kishori as adoptive father of Rakesh Kumar. It was also pointed out that remaining parties have no right or locus standi to challenge the adoption of Rakesh Kumar by Kishori, when suit filed by Kishori himself to challenge decree dated 12.09.1992 was dismissed as withdrawn. On the other hand, learned counsel for Kanshi Ram vehemently reiterated the contentions, which found favour with the lower appellate court to hold that there was no valid adoption of Rakesh Kumar by Kishori. Reference in this regard was made to paragraphs 28 to 64 of the judgment of the lower appellate court. I have carefully considered the rival contentions. Magna Carta of Rakesh Kumar, to prove his adoption by Kishori, is decree dated 12.09.1992. However, the said decree cannot be R. S. A. No. 4639 of 2009 9 treated to be final and conclusive on this aspect, but is only a piece of evidence based on alleged admission made by Kishori regarding alleged adoption so as to suffer the said decree. However, natural parents of Rakesh Kumar were not even party to the said suit. In the case of Krushna Chandra Sahu and another vs. Pradipta Das and others reported as AIR 1982 Orissa 114, a Division Bench held that burden of establishing valid adoption is on the party, who pleads the adoption. It was also held that a document executed not by natural father but by adoptive father acknowledging adoption or containing recitals regarding giving and taking in adoption, is not by itself sufficient to constitute legal adoption in the absence of evidence about actual giving and taking of the child, more so when the natural father is not party to the document. Similarly, Hon'ble Supreme Court in a judgment namely Banwari Lal vs. Trilok Chand and others reported as AIR 1980 Supreme Court 419 held that statement made by the testator in the Will about defendant no.1 as his adopted son is certainly a piece of admissible evidence, but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive and the burden of proving his adoption lies heavily on defendant no.1, who pleaded it. In view of aforesaid authoritative pronouncement, it is manifest that decree dated 12.09.1992 based on admission of Kishori regarding R. S. A. No. 4639 of 2009 10 alleged adoption is merely an admissible piece of evidence, but is not conclusive to prove the alleged adoption. On the contrary, Kishori himself filed suit to challenge decree dated 12.09.1992 regarding alleged adoption alleging that the said decree was obtained by fraud etc. Withdrawal of the said suit by Kishori is meaningless because while withdrawing the suit, Kishori did not state that he had actually adopted Rakesh Kumar. On the other hand, plaint of that suit contains a contrary admission of Kishori that he had not adopted Rakesh Kumar. Kishori pleaded in his written statement in one of the instant suits i.e. in suit titled Rulia Ram etc. vs. Rakesh Kumar and another that there was no adoption of Rakesh Kumar by him. However, in suit titled Khazan Singh etc. vs. Rakesh Kumar etc., Kishori pleaded in his written statement that he had adopted Rakesh Kumar. Thus, there are admissions of Kishori regarding adoption of Rakesh Kumar by him as well as regarding non-adoption of Rakesh Kumar by him. Consequently, on the basis of said admissions or statements of Kishori, it cannot be held that Rakesh Kumar had been adopted by Kishori. In this view of the matter, other evidence led by Rakesh Kumar to prove his alleged adoption by Kishori has to be adverted to. As regards oral evidence, there are self-serving statements of Rakesh Kumar and his natural father Samay Singh regarding alleged R. S. A. No. 4639 of 2009 11 adoption, but obviously, being interested witnesses, their statements are not sufficient to prove alleged adoption, particularly when even after the alleged adoption, Rakesh Kumar continued to represent himself as son of his natural father Samay Singh and never represented himself to be adopted son of Kishori. Regarding oral evidence led by Rakesh Kumar, it is significant to notice that his natural father Samay Singh stated that Swaran, Mukandi and Ratia were among those present at the time of adoption ceremony. However, none of them has been examined as witness to prove the alleged adoption. Consequently, adverse inference has to be drawn against Rakesh Kumar. Even his natural mother has not stepped into the witness-box and therefore, adverse inference would arise against Rakesh Kumar on this count as well. No other witness from the village has either been examined to prove the alleged adoption. Consequently, self-serving statements of Rakesh Kumar and his natural father are not sufficient to prove the alleged adoption. It may be added that natural parents of Rakesh Kumar were not party to the suit, in which decree dated 12.09.1992 regarding alleged adoption was passed. Rakesh Kumar was minor at that time and the suit was allegedly filed on his behalf through his natural mother as next friend. However, even if it be so, natural mother of Rakesh Kumar would not be deemed to be party to that suit, when she was not party in her own right. R. S. A. No. 4639 of 2009 12 Samay Singh – natural father of Rakesh Kumar was also not party to that suit. Consequently, unilateral and one-sided admission of Kishori in that suit regarding alleged adoption would not carry any meaning in the absence of natural parents of Rakesh Kumar. There is documentary evidence to depict that even after the alleged adoption, Rakesh Kumar continued to represent himself as son of Samay Singh and not as adopted son of Kishori. Rakesh Kumar purchased a house from Kishori vide sale deed dated 20.11.1987, executed 15 months after alleged adoption having taken place in August 1986. Rakesh Kumar was minor at that time and he was represented by his natural father Samay Singh in the said sale deed. Rakesh Kumar was mentioned to be son of Samay Singh in the said sale deed and was not mentioned as adopted son of Kishori. If Kishori had already adopted Rakesh Kumar, there was no reason for not mentioning the same in the said sale deed and in fact, there would have been no necessity for executing the sale deed if Rakesh Kumar had been adopted as son by Kishori. Voters' lists for the years 1995 and 1996 also mentioned Rakesh Kumar to be son of Samay Singh and not adopted son of Kishori. These voters' list would again depict that Rakesh Kumar was never adopted by Kishori. It would also depict that Rakesh Kumar continued to reside with his natural parents and was not residing with Kishori after alleged adoption. It would also rule out the alleged adoption. R. S. A. No. 4639 of 2009 13 As late as in the year 2003, Rakesh Kumar purchased a motorcycle and got it registered mentioning himself to be son of Samay Singh and not mentioning himself to be adopted son of Kishori. All this documentary evidence completely negatives the alleged adoption. Heavy reliance on behalf of Rakesh Kumar was placed on Ration Card, wherein he has been mentioned as adopted son of Kishori. However, this Ration Card was got prepared during the pendency of the instant suits and is, therefore, created evidence for the purpose of the suits. The said Ration Card, therefore, does not carry any probative value. The said Ration Card was also prepared after the death of Kishori and for this reason also, the said Ration Card does not carry much evidentiary value. Samay Singh and Rakesh Kumar also stated that writing or document was prepared at the time of alleged adoption. Rakesh Kumar stated that the said document was with his mother. However, the said document has not seen the light of the day. For withholding the said material document also, adverse presumption arises against Rakesh Kumar. Learned counsel for Rakesh Kumar contended that the said document was decree dated 12.09.1992. The contention cannot be accepted as decree dated 12.09.1992 cannot be said to be writing of adoption nor the same was passed at the time of adoption, but was passed after six years of alleged adoption. Even statement of Kishori was recorded on 06.06.1995 in Civil R. S. A. No. 4639 of 2009 14 Suit titled Rulia Ram etc. vs. Rakesh Kumar and another, wherein he has stated that he had never adopted Rakesh Kumar. It is correct that Kishori was not subjected to cross-examination regarding that statement, but nevertheless, the said statement, along with written statement filed by him in the same suit to the same effect, is an admission or statement of Kishori depicting that he had never adopted Rakesh Kumar. There is another material circumstance negativing the alleged adoption. Admittedly, Rakesh Kumar is the only son of his natural parents. Consequently, it was highly unlikely and improbable that he was given in adoption to Kishori. It is correct that in the Hindu Adoptions and Maintenance Act, there is no prohibition against giving of the only son in adoption, but ordinary human conduct cannot be lost sight of. In our traditional society, hardly one would come across an instance, where Hindu parents have given their only son in adoption to somebody else. This circumstance may, by itself, be not conclusive to negative the adoption, but certainly, this is a very material circumstance negativing the alleged adoption. Rakesh Kumar himself admitted that he continues to be recorded as son of Samay Singh in the voters' lists and he never got the voters' lists corrected. He also stated that he appeared in matriculation examination while he was aged 17 years, but he did not remember as to what name of his father was mentioned by him in the form for said R. S. A. No. 4639 of 2009 15 examination. Obviously, adverse inference would arise against Rakesh Kumar on this count and it can be safely inferred that he mentioned the name of his father as Samay Singh and not Kishori in the examination form of matriculation, which examination he took almost seven years after the alleged adoption. He also admitted that even now, Samay Singh and his wife are his father and mother. Matriculation Certificate (Pass or Fail) of Rakesh Kumar has also not been produced to depict the name of his father mentioned therein. For this reason also, adverse presumption arises against Rakesh Kumar. Issuance of notice dated 10.02.1993 to the school would also depict that even till then i.e. for almost seven years, Rakesh Kumar continued to be recorded as son of his natural father Samay Singh in the school record. No documentary evidence has been produced to depict that Rakesh Kumar ever lived with Kishori. On the other hand, voters' list (Ex.P-3) depicts that Rakesh Kumar was living with his natural parents, who were also listed as voters along with Rakesh Kumar in seriatim and Kishori was not listed as voter with them. It would also depict that Rakesh Kumar was not residing with Kishori. For all the aforesaid detailed reasons, I have no hesitation in concluding that Rakesh Kumar has miserably failed to prove his alleged adoption by Kishori. Finding of fact recorded to this effect by the lower appellate court is fully justified by the evidence on record and is supported R. S. A. No. 4639 of 2009 16 by detailed reasons recorded by the lower appellate court and the said finding does not suffer from any illegality or perversity so as to call for interference in second appeal. No question of law, much less substantial question of law, therefore, arises for determination in these second appeals. As a necessary upshot of the aforesaid discussion, I find no merit in these appeals. Accordingly, all the 12 appeals are hereby dismissed. February 02, 2011 ( L. N. MITTAL ) monika JUDGE