Punjab-Haryana High Court
Pawan Kumar vs Sumitra & Ors on 9 October, 2014
Author: Arun Palli
Bench: Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Regular Second Appeal No. 3629 of 2014 (O&M)
DATE OF DECISION : October 09, 2014
PAWAN KUMAR
.......APPELLANT(S)
VERSUS
SUMITRA & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. RN Lohan, Advocate, for the appellant.
Mr. KS Malik, Advocate, for the Caveator/respondents.
ARUN PALLI, J. (Oral)
Suit filed by the plaintiffs (Sumitra and others) was decreed by the trial Court vide judgment and decree dated 19.05.2012. Appeal preferred against the said decree failed and was, accordingly, dismissed by the Ist Appellate Court, vide judgment and decree dated 09.05.2014. This is how, defendant No.1 is before this Court, in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
In short, in a suit filed by the plaintiffs, they prayed for a declaration that the adoption deed No.53 dated 31.01.1997 GURSHARAN SINGH KANG 2014.10.14 10:32 I attest to the accuracy and authenticity of this document Regular Second Appeal No. 3629 of 2014 (O&M) 2 and Will bearing No.145 dated 03.02.1997, were null and void and not binding upon the rights of the plaintiffs. A decree for injunction restraining the defendants from alienating the suit property, was also prayed for. It was maintained that Rajpal, husband of plaintiff No.1 and father of plaintiffs No.2 and 3, was the owner in possession of the suit property. And on his demise on 02.11.2009, his estate was succeeded to by the plaintiffs, being his legal heirs and successors-in-interest. Post death of Rajpal, plaintiff No.1 moved an application to the Revenue authorities for sanctioning of the mutation in favour of the plaintiffs and, that is when, she came to know that defendant No.1 was claiming the suit property on the basis of adoption deed dated 31.01.1997 and Will dated 03.02.1997. Both the documents were purported to be illegal, null and void and not binding on the rights of the plaintiffs, being based on fraud committed by the defendants in collusion with each other upon Rajpal. Further, plaintiff No.1 never accorded her consent qua the alleged adoption of defendant No.1 by Rajpal. Thus, cause of action for filing the suit was, finally, alleged to have arisen on 18.01.2010 when the defendants refused to acknowledge the rights of the plaintiffs. Thus, the suit.
In a common written statement filed by the defendants, it was pleaded that late Rajpal, with his free will and consent, executed Will dated 03.02.1997 in favour of defendant No.1. So much so, plaintiffs were denied to be the legal heirs of late Rajpal. The suit was purported to be barred as the earlier civil suit challenging the Will was dismissed on 19.03.2002. It GURSHARAN SINGH KANG 2014.10.14 10:32 I attest to the accuracy and authenticity of this document Regular Second Appeal No. 3629 of 2014 (O&M) 3 was claimed that the Will as well as the adoption deed were duly and validly executed.
Trial Court, on an analysis of the matter in issue and the evidence on record, found that living status of plaintiff No.1; namely, Sumitra wife of Rajpal, at the time of alleged adoption was not in dispute. Plaintiff No.1 was a Hindu at the relevant time, was also not disputed. Undisputedly, plaintiff No.1 was of sound disposing mind at the time of alleged adoption. So much so, plaintiff No.1 appeared as PW-1 and denied her consent qua the adoption deed. Adoption deed (Exhibit P1) itself is not signed or thumb marked by plaintiff No.1 so as to infer her consent qua adoption of defendant No.1. Meaning thereby, consent of plaintiff No.1, being wife of Rajpal, was never secured at any point in time. Jagdev (DW-2) who, admittedly, was the real brother of Rajpal as well as defendant No.2, deposed in his cross-examination that plaintiff No.1 had left Village Bhaini Bharon approximately 13-14 years ago. It was also brought on record that even the marriages of daughters of Rajpal were not solemnized at Village Bhaini Bharon, but at Village Karontha. Albeit, provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act') empowers a male Hindu of a sound mind and not a minor, to take a son or a daughter in adoption, but the proviso to the said provision postulates that a male Hindu can adopt a son or a daughter provided, if he has a living wife, his wife accords consent. That being so, the adoption deed (Exhibit P1) was declared to be an invalid document.
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Will (Exhibit P2), propounded by the defendants, was also discarded by the trial Court as the same was surrounded by multiple suspicious circumstances. So much so, plaintiff No.1, who happened to be the wife of Rajpal, was excluded from inheritance. In fact, no reason of any kind is assigned for excluding plaintiff No.1 from inheritance of the estate of Rajpal. Defendant No.1, propounder of the Will, himself failed to appear in support of his case. The attesting witness DW-2 i.e. Jagdev, deposed in his cross-examination that the Will which was got signed from him, being witness, contained a specific reference to the wife of the testator whereas, Will (Exhibit P2) did not contain a word as regards plaintiff No.1. Further, DW-2 in his examination-in-chief had deposed that the Will was scribed 4 years ago from the date when he appeared as a witness. The statement of DW-2 was recorded on 23.09.2011 and, as per his testimony, the Will in question would have been executed not before 2007. However, Will (Exhibit P2) was purported to have been executed in the year 1997. During the cross-examination of DW-2 and DW-3, both the witnesses admitted that on the demise of Rajpal, neither he was living with defendant No.1 nor was being served by him or even by defendant No.2. Accordingly, Will dated 03.02.1997 was not held to be a genuine document.
The onus to prove that the suit filed by the plaintiffs was not maintainable, was upon the defendants. It was urged that post dismissal of the earlier suit vide Exhibit D1, the present suit was not maintainable.
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The trial Court, on an analysis of the material on record, found that the dismissal of the earlier suit filed by Sumitra (plaintiff No.1) vide Exhibit D1, did not bar the filing of the present suit as the defendants had not yet been served in the said suit when the same was dismissed on 19.03.2002. Meaning thereby, the dismissal of the said suit could only be taken as either under Order 9 Rule 2 or under Order 9 Rule 3, Code of Civil Procedure. That being so, dismissal of the earlier suit under any of the aforesaid provisions, did not bar a fresh suit on a similar cause of action.
Likewise, it was observed that even if it was taken that the Will and the adoption deed have been in the notice of the plaintiffs since the year 2000, yet the suit filed by the plaintiffs could not be said to be barred by limitation as the suit seeking a declaration qua the suit property on the basis of title, could not be said to be barred by time. In fact, on the demise of Rajpal on 02.11.2009, plaintiffs staked their claim qua his estate on the basis of natural succession. Thus, the suit instituted by the plaintiffs was well within limitation.
Accordingly, the suit was decreed.
Being dissatisfied with the decree, defendants preferred an appeal.
Ist Appellate Court reviewed the matter in issue, evidence on record and, on an analysis thereof, found itself in concurrence with the view drawn by the trial Court and findings recorded in support thereof. Accordingly, the appeal filed by the defendants was dismissed.
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I have heard the learned counsel for the parties and perused the R.S.A. paper book.
Learned counsel for the appellant simply seeks to reiterate the submissions that were advanced before the Courts below and rejected after due and comprehensive consideration. All what is urged is that the suit filed by the plaintiffs was barred by time as the adoption deed dated 31.01.1997 was well within the knowledge of the plaintiffs from the date of its execution or, at least, when plaintiff No.1 filed a first suit i.e. on 20.2.1997 and, therefore, the present suit instituted by the plaintiffs on 01.02.2010, was barred by time.
Per contra, learned counsel for the plaintiffs submits that both the courts have concurrently found that the adoption deed as well as the Will, being propounded by the defendants, were not validly executed documents and were, thus, rightly declared so. It is contended that the suit filed by the plaintiffs was well within limitation, as is so held by both the courts.
The arguments advanced by the learned counsel for the appellant lack conviction and cannot be imbibed. Concededly, plaintiff No.1 was very much alive and was in sound disposing mind on 31.01.1997, when the adoption deed was purportedly executed by deceased-Rajpal. Nothing was brought on record to show that the consent of plaintiff No.1 qua adoption of defendant No.1 was ever secured at any point in time, in terms of provisions of Section 7 of the Act. Ex-facie, Will in question was surrounded by suspicious circumstances, as there was no reference to plaintiff No.1, who happened to be the wife GURSHARAN SINGH KANG 2014.10.14 10:32 I attest to the accuracy and authenticity of this document Regular Second Appeal No. 3629 of 2014 (O&M) 7 of Rajpal. So much so, Jagdev (DW-2), the only attesting witness to the Will, stated in his cross-examination that the Will which was got signed from him as witness, did contain a specific reference to the wife of the testator. Whereas, Will (Exhibit P2) does not contain a word qua plaintiff No.1. It is further discernible from the record that DW-2 and DW-3 admitted in their testimonies that neither late Rajpal was living with defendant No.1 at the time of his demise nor he was served by defendant No.1 or defendant No.2. That being so, Will dated 03.02.1997 was rightly discarded by both the courts.
Insofar as the plea of the defendants that the present suit was barred by time, the same is equally misconceived and untenable. The earlier suit was filed by Sumitra alone on 20.02.1997 when she questioned the adoption deed dated 31.01.1997. Whereas, in the present lis, the dispute was qua the estate of her late husband; namely, Rajpal, who died on 02.11.2009. In any case, plaintiffs No.2 and 3, who happened to be the daughters of late Rajpal, were not party to the earlier suit. Question of inheritance to the estate of late Rajpal, matured only on his demise on 02.11.2009 and it was when the defendants propounded a Will dated 03.02.1997, post the demise of Rajpal, that plaintiffs filed the present suit on 01.02.2010. Apparently, the plaintiffs were claiming the estate of late Rajpal on the basis of natural succession, being his wife and daughters. Thus, it could not be maintained that the suit filed by the plaintiffs was barred by time.
In the wake of the position as set out above and the GURSHARAN SINGH KANG 2014.10.14 10:32 I attest to the accuracy and authenticity of this document Regular Second Appeal No. 3629 of 2014 (O&M) 8 conclusions that have been concurrently recorded by both the courts below, there hardly exists any ground, least plausible in law, to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The same being devoid of merit is, accordingly, dismissed.
OCTOBER 09, 2014 ( ARUN PALLI )
Kang JUDGE
GURSHARAN SINGH KANG
2014.10.14 10:32
I attest to the accuracy and
authenticity of this document