Jammu & Kashmir High Court - Srinagar Bench
Badri Nath vs Ut Of J&K And Others on 4 August, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C ) No. 439/2021
CM Nos.1381/2021,
5363/2021, 5693/2021
Reserved on: 27.07.2022.
Pronounced on: 04.08.2022.
Badri Nath
..... Petitioner
Through: Mr. G. A. Lone Adv., with
Mr. Mujeeb Andrabi, Adv.
V/s
UT of J&K and others .....Respondent(s)
Through :- Mr. Aatir Javed Kawoosa, Adv.
Mr. Areeb Javed Kawoosa, Adv.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioner is aggrieved and has challenged order dated 13.05.2014 passed by the Financial Commissioner, J&K, Srinagar [„F.C‟] in Files No. 330/FC-AP & 454/FC-AP titled „Badri Nath vs. Santosh Kumari and „Santosh Kumari vs Badri Nath‟ respectively.
2. Vide order dated 19.04.2005 passed by the District Magistrate, Anantnag disposing of an application filed by respondent No.7 herein titled „Santosh Kumari vs. Badri Nath‟, Tehsildar, Kulgam was directed to evict unauthorized occupant and take possession on his behalf of the land falling under Khasras No. 6, 13, 14, 15, 54, 55, & 59 situated at Kharwat [„the subject land‟]. Feeling aggrieved, the petitioner herein filed an appeal before the F.C. While the F.C was seized of the said appeal, he received a Reference from the Settlement Commissioner, J&K, Srinagar [„Settlement Commissioner‟] with the recommendation to set aside order dated 06.11.2014 passed by the Assistant Commissioner, 2 WP(C ) No.439/2021 Kulgam pertaining to the subject land. The genesis of entire dispute between the petitioner and respondent No.7 lies in the determination of a question, as to whether respondent No.7 is an adopted daughter of the deceased Anand Ram or not. An Adoption Deed executed by Anand Ram on 19.01.1967, declaring respondent No.7 to be her adopted daughter entitled to inherit his estate, was at the core of controversy raised before the F.C.
3. It may be noted that, vide mutation No. 15 dated 01.06.2001, the estate of Anand Ram has been attested in favour of respondent No.7 being his sole surviving heir (adopted daughter). In terms of mutation No. 9 dated 30.10.2001, the estate of Prabawati, the wife of brother of Anand Ram, namely, Madhav Ram is devolved upon the petitioner neglecting the claim of respondent No.7 on the ground that she had failed to produce any documentary evidence to demonstrate that she was also an adopted daughter of Prabawati. Both the aforesaid mutations were subject matter of challenge before the Settlement Commissioner who had made a Reference to the F.C. which was disposed of vide order impugned.
4. The case set up by the petitioner in this petition essentially pertains to a dispute between the petitioner and respondent No.7 with respect to the subject land left behind by Anand Ram and Prabawati, the widow of Madhav Ram. The petitioner asserts his right to the subject land on the ground of being a nearest agnate entitled to claim inheritance under the principles of Hindu Law, while as, respondent No.7 stakes her claim to the subject property being an adopted daughter of Anand Ram. To substantiate his claim that the petitioner is agnate of Anand Ram and Prabawati, he relies upon the revenue record wherein he along with others have been shown as a co-sharer with Anand Ram, Prabawati and 3 WP(C ) No.439/2021 others. It is claimed that Anand Ram died in the year 1991 and Prabawati in the year 1998 issueless. The petitioner further claims that since respondent No. 7 had migrated to Tehsil Dooru, therefore, the last rites of Anand Ram and Prabawati were performed by him. On the other hand, the claim of respondent No.7 is that she was adopted by Anand Ram about 08 years prior to the execution of formal deed of adoption on 19.01.1967 which adoption was not challenged by any person including the petitioner and, therefore, on the death of Anand Ram, the entire estate left behind by Anand Ram was inherited by her. It is submitted that mutation No. 15 dated 01.06.2001 was attested in favour of respondent No.7 by the Assistant Commissioner (Rev), Kulgam. [„ACR‟] Respondent No.7 further claims that she was also entitled to inherit the entire estate left behind by Prabawati being an adopted daughter of Anand Ram, the brother of husband of Prabawati, namely Madhav Ram. It is submitted that the petitioner, a stranger, was not entitled to inherit the estate of Prabawati and that mutation No. 09 dated 30.10.2001, which was attested in favour of the petitioner and some other co-sharers of the property left behind by Prabawati, was erroneously attested by the Assistant Commissioner (Revenue), Kulgam and, therefore, the F.C. correctly set aside the same and remanded it to the Tehsildar concerned for attestation of fresh mutation.
5. Mutation No.15 dated 01.06.2001 attested by the Tehsildar, Kulgam was assailed before the ACR in appeal filed by the petitioner. The said appeal was accepted and mutation No. 15 was set aside by the ACR. So far as mutation No. 09 dated 30.10.2001 is concerned, whereby the estate of Prabawati was mutated in favour of the petitioner, was also challenged in an appeal by respondent No.7 before the ACR. Both the 4 WP(C ) No.439/2021 mutations were set aside by the ACR by virtue of a composite order passed on 16.11.2004. This order was subject matter of challenge in revision petitions before the Settlement Commissioner J&K, Srinagar by the aggrieved parties. The Settlement Commissioner appears to have accepted the revision petitions and set aside the order of ACR dated 16.11.2004 passed in appeals No. 46/AP/ACG & 56/AP/ACG respectively vide his order dated 11.08.2005 and made a Reference to the F.C vide his separate order dated 12.09.2005. This is how the Reference as also the appeal against the order of District Magistrate, Anantnag dated 19.04.2005 came to be considered and disposed of by the F.C together by a composite order dated 13.05.2014.
6. The petitioner has challenged the impugned order, inter alia, on the following grounds:
(i) That the impugned order upholding mutation No. 15 dated 01.06.2001 attested in favour of respondent No.7 in respect of estate of Anand Ram on the basis of a registered adoption deed dated 19.01.1997 is not sustainable, in that, mutation No. 15 was attested by the Revenue Officer in violation of the statutory guidelines prescribed under Standing Order 23-A;
(ii) That mutation No. 15 attested by the Tehsildar Kulgam on the basis of adoption of respondent No. 7 by Anand Ram was de hors the law, in that, before coming into force of the Jammu and Kashmir Hindu Adoptions and Maintenance Act, 1960 [„the Act of 1960‟], the adoption of a female child was not permissible under old Hindu Shastric Law;
(iii) That the FC while relying upon the adoption deed executed on 19.01.1967 completely ignored to appreciate that, as per the contents of the adoption deed, the actual adoption as per the Customs and Hindu Dharam Shastra had taken place 08 years back i.e prior to the coming into operation of the Act of 1960, and, therefore, nullity in the eye of law. It is submitted that the F.C even failed to appreciate that the document, relied upon as a adoption deed executed on 19.01.1967 by the estate holder Anand Ram, was not a document of adoption by any stretch of imagination. The salient features, which make an adoption of a Hindu male or female child valid in the eye of law under the provisions of the Act of 1960 were completely missing in the present case, yet, the F.C relied upon it and upheld mutation No. 15 attested in favour of respondent No.7;5 WP(C ) No.439/2021
(iv) That the entries with respect to the date of birth of respondent No. 7 including those made in Electoral Roll indicate that respondent No. 7 was born in 1960 and, therefore, the whole story about her adoption by Anand Ram in the year 1959 is shrouded in mystery. However, the F.C has conveniently ignored to take note of the said aspect and has arbitrarily and without indicating any reasons upheld mutation No. 15;
(v) That on the analogy of the aforesaid grounds of challenge urged by the petitioner, mutation No. 42 dated 30.06.2014 attested by Tehsildar Kulgam in compliance with the impugned order passed by the F.C, it is urged, is not sustainable in law.
7. The writ petition is contested by respondents No. 7 to 9. In their reply affidavit, besides refuting some of the factual assertions made by the petitioner, they have taken a preliminary objection to the maintainability of the writ petition on the ground of delay and laches. It is submitted that the impugned order was passed on 13.05.2014 and in consequence whereof, the Tehsildar Kulgam even attested Mutation No.42 dated 30.06.2014 and, therefore, the writ petition after a gap of more than 07 years is hit by delay and laches and deserves to be thrown out, accordingly. On merits, it is submitted that, in absence of any challenge to the adoption and deed of adoption executed on 19.01.1967, no fault could be found with Mutation No. 15 attested by the Tehsildar Kulgam. It is, thus, contended that the deed of adoption dated 19.01.1967 is only a document of recording an event of adoption that had actually taken place about 08 years back.
8. Learned counsel for respondent No.7 was at pain to explain that approximately 8 years before the execution of document dated 19.01.1967 (adoption deed), does not necessarily mean 1959 and could be 1967 after coming into operation of the Act of 1960. He submits that the issue is a disputed question of fact and is already a subject matter of determination in a civil suit filed by the petitioner to challenge the adoption of respondent No.7 before a Civil Court at Kulgam. He, 6 WP(C ) No.439/2021 therefore, argues that, unless the adoption is held invalid by the competent Court of jurisdiction, the revenue authorities have no option, but to rely upon the same and mutate the revenue record, accordingly. It is further submitted by learned counsel for respondent No.7 that mutations are merely fiscal entries and are always subject to decree by the Civil Court. He, therefore, supports the order of F.C. on all fours.
9. Having heard learned counsel for the parties and perused the material on record, I am of the considered view that the order impugned passed by the F.C is perfectly legal and does not call for interference. I am also in agreement with learned counsel for respondent No. 7 that the challenge to the impugned order passed in the year 2014 in a petition filed in the year 2021 is hit by delay and laches. I could not find any good reasons coming forth for explaining this huge and inordinate delay except the argument of Mr. G.A.Lone, learned counsel for the petitoner that since the impugned mutations attested on the basis of adoption, which is null and void , could be challenged at any time. I am not impressed by the argument. Whether the adoption, which, as per respondent No.7 as also as per the recitals of adoption deed executed on 19.01.1967 took place about 8 years back, is legally valid or is null and void, is already a subject matter of adjudication in a suit filed before the Civil Court. So long as the adoption is not declared invalid, null and void or inoperative qua the rights of the petitioner, the revenue authorities have no option, but to rely upon the same and correct the revenue records, accordingly. The mutation, as is well settled, does not confer a title, but is only a fiscal entry and, therefore, always subject to the decree of a Civil Court.
10. Viewed thus, it is difficult for this Court to accept the argument of Mr. Lone that this Court, in exercise of extraordinary writ jurisdiction vested 7 WP(C ) No.439/2021 under Article 226 of the Constitution of India and while hearing the challenge against the order of F.C, should return a finding with regard to the validity or otherwise of the adoption of respondent No.7 by the deceased estate holder Anand Ram. While, there is no denying the fact that prior to coming into the operation of the Act of 1960, the adoption of a female child was not permissible in Hindu law. A great amount of stress was laid by Mr. Lone on his argument that an ancient Hindu law pertaining to adoption did not permit the Hindu to adopt a female child, nor the devolution of property was permissible on the adopted daughter. He placed reliance on the judgments of the Supreme Court and the various High Courts.
11. Learned counsel for respondent No.7, in his fairness, did not dispute the aforesaid legal position, which, otherwise, is no longer res integra. It may be relevant to note the observations made by the Supreme Court in the case of Chandarasekhara Mudaliar vs Kulandaivelu Mudaliar and others, AIR 1963 SC 185. Paras (13) & (14) of the judgment are relevant and are, thus, set out below:
"13.The next question is, what is the object of adoption ? It would be unnecessary and even be pedantic if we attempted to consider the old Hindu law texts at this very late stage in the evolution of Hindu law on the subject, for the law on this aspect had been fully and adequately considered by the Judicial Committee from time to time. It would be sufficient if we noticed a few of the leading decisions on the subject.
14. Sir James W. Colvile, speaking for the Judicial Committee, in Collector of Madurai v. Moottoo Ramalinga Sathupathy observed:
"The power to adopt when not actually given by the husband can only be exercised when a foundation for it is laid in the otherwise neglected observance of religious duty, as understood by Hindoos".
The Judicial Committee again speaking through Sir James W. Colvile in Sir Raghunadha v. Sri Brozo Kishore restated the principle with some modification thus :
8 WP(C ) No.439/2021
"It may be the duty of a Court of Justice administering the Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence".
But, he hastened to add:
"But it is impossible not to see that there are grave social objections to making the succession of property-and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession--dependent on the caprice of a woman subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or-capable of exercising dominion over, property".
This caution given by the Judicial Committee is relied upon to emphasize the point that right to property of the last male-holder is a dominant consideration in the matter of taking a boy in adoption. But, if the passage was read along with that preceding it, it would be obvious that the Judicial Committee emphasized the performance of a religious duty as an essential foundation of the law of adoption, though it did not fail to notice that the devolution of Property was a legal consequence. In Vellanki Venkata Krishna Row v. Venkata, Rama Lakshmi Narsayya, the Judicial Committee through Sir James W. Colvile reiterated the principle that adoption was made by a widow only in a bona fide performance of a religious duty. In Veera Basavaraju v. Balasurya Prasada Rao, Mr. Ameer Ali, delivering the judgment on behalf of the Board, appeared to strike a new note and lay more emphasis on property rights. The Board gave as one of its reasons why the consent of divided brothers was required, namely, that they had an interest in the protection of the inheritance. The Judicial Committee observed :
"lt is true that in the judgment of this Board in the Ramnad case, some expressions are used which might imply that the question of reversionary interest forms only a secondary consideration in determining what sapindas assent is primarily requisite, but the remarks that follow as to the right of coparceners in an undivided family to consider the expediency of introducing a new coparcener, coupled with the observations of the Board in the subsequent case, show clearly that, rights to property cannot be left out of consideration in the determination of the question".
It may be said with some justification that till this stage the Judicial Committee had not clearly disclosed its mind, but was wavering between two positions, namely, whether religious duty was the sole object of adoption or whether proprietary interests had an equal or a subordinate place with or to that of a religious object. But in Amurendra Mansingh v. Sanatan Singh, the Judicial Committee reconsidered its earlier decisions, resurveyed the entire law on the subject and veered round to the view that the validity of an adoption was to be determined by spiritual rather than temporal considerations. Sir George Lowndes observed :
9 WP(C ) No.439/2021
". . . it is clear that the foundation of Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. . . "
"It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognized as the inherent right of son, is altogether a secondary consideration . . ."
"Having regard to this well established doctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man . . . Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property."
This decision is, therefore, a clear pronouncement by the highest judicial authority of the time that the substitution of a son of the deceased for spiritual reasons is the essence of adoption and the consequent devolution of property is mere accessory to it".
12. Relying upon the aforesaid judgment of the Supreme Court, a Division Bench of Madras High Court in Lalitha vs. Parameswari alias Ramabai and others, AIR 2001 MADRAS 363 in paras (31) and (32) held thus"
"31. The question whether a daughter's son can be adopted came for the consideration of this Court in the case of Mariammal v. Govindammal, AIR 1985 Mad 5 wherein this Court held that:
"A daughter's son cannot be adopted and it is invalid in law unless the custom of adopting a daughter's son is proved satisfactorily among the community to which the parties belong. When once a custom is pleaded, the said custom must be established by satisfactory evidence and this burden cannot be discharged by contending that the persons claiming the custom can be classified only as Shudras. Even if a rule of ancient Hindu Law is only recommendatory in nature. Yet when once custom is pleaded against the said rule, it is but necessary in order to uphold the said custom, the said custom should be established by satisfactory evidence as prevalent in the community, for a long time without any interruption. It is of the essence of special usages modifying the ordinary law of adoption that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
32. We have already observed that the adoption of a female child was not permissible before the passing of the Hindu Adoptions and Maintenance Act, 1956. The documents relied upon by the plaintiff to establish that she has been treated as a daughter are of no consequence and as it has been already been observed supra that the very adoption itself is invalid, any amount of documents relied upon by the plaintiff would not support her case that her adoption was valid in the eye of law".10 WP(C ) No.439/2021
13. It is, thus, trite law that prior to promulgation of the Act of 1960, no adoption of a female child was permissible in the erstwhile State of Jammu and Kashmir under the ancient Hindu law, unless such adoption had the sanction of local tribal or family custom. Needless to say that the onus to prove that such custom permitting the adoption of a female child in any local area, tribe or family, is always on a person who alleges it or sets up a claim on the basis thereof. I am not going much deep into this question as anything said about the adoption of respondent No. 7 by the deceased estate holder Anand Ram may prejudice the case of the parties before the Civil Court.
14. In view of the aforesaid, I have no hesitation to hold that prior to the promulgation of the Act of 1960, the adoption of a female child by a Hindu was not permissible. The right of Hindu to adopt a female child came to be recognized only when the ancient Hindu law was codified and the Act of 1960 was promulgated. The dispute in this case, however, is with regard to the actual date and year of adoption of respondent No.7. It is true that in the deed of adoption executed by Anand Ram on 19.01.1967, the event of actual adoption of respondent No.7 by Anand Ram is recorded as having taken place about 8 years back. This would not necessarily mean the year 1959. It could also be the year 1960 and possibly after the promulgation of the Act of 1960. This, of course, is a complicated disputed question of fact to be determined by reference to the oral as well as documentary evidence which the parties have to adduce before the Civil Court. As noted above, the suit in this regard filed by the petitioner in the Civil Court at Kulgam is pending adjudication. That apart, in the face of pendency of a civil suit filed by the petitioner challenging the validity of an adoption deed, it is not open 11 WP(C ) No.439/2021 to the petitioner to throw challenge to the same adoption/adoption deed by invoking the extraordinary writ jurisdiction of this Court.
15. This Court has been repeatedly holding that a party aggrieved cannot pursue two remedies simultaneously. The petitioner is well within his right to contest that the civil suit before the civil Court cannot be stayed under the provisions of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, for, the subject property to which the adoption pertains is not a migrant property. The petitioner may have to work out his remedy as may be permissible in law, but surely he is not permitted to simultaneously pursue another remedy before this Court under Article 226 of the Constitution. Looking to the dispute from slightly different angle, the adoption deed, which is subject matter of challenge before the Civil Court and is the basis of attestation of mutation No. 15 of 2001 and mutation No. 42 of 2014, when read in its entirety, may not be a deed effecting any adoption, but it surely is a declaration by Anand Ram that after his death, his entire property would be inherited by respondent No.7 and, therefore, could possibly be taken as his last will. I am not holding so, nor the same is required for the purpose of disposal of this petition. Otherwise also, giving any opinion by this Court about the document dated 19.01.1967 (adoption deed) is likely to prejudice the case of the parties pending before the Civil Court. It is, thus, left to the competent Court of Jurisdiction to determine all these questions. Interestingly, in ground 4 of the writ petition, the writ petitioner has himself made a reference to certain documents which indicate that the petitioner was born on 1960. Without commenting upon the validity or otherwise of this document, it would be sufficient to say that, the 12 WP(C ) No.439/2021 question, as to whether the adoption in the instant case has taken place prior to or after the promulgation of the Act of 1960, is a disputed question of fact, to be determined by the competent Court of jurisdiction empowered to take evidence and decide such question after holding a full fledged trial.
16. Viewed in the aforesaid context, I find no merit in this petition and the same is, accordingly, dismissed.
Interim directions, if any, shall stand vacated.
(SANJEEV KUMAR) JUDGE Srinagar 04.08.2022 Sanjeev Whether order is speaking: Yes Whether order is reportable: Yes