Punjab-Haryana High Court
Karnail Singh vs Sohan Singh on 6 July, 1993
Equivalent citations: I(1994)DMC398
JUDGMENT N.K. Kapoor, J.
1. This judgment shall dispose of Regular Second Appeal No. 1402 of 1991 and Civil Revision No. 2203 of 1991 arising out of the judgment and decree of Additional District Judge, dated 1.6.1991.
2. The present appellants filed a suit for declaration that they alongwith Bakshish Singh respondent are owners in possession of land as detailed in the heading of the plaint with consequential relief of permanent injunction restraining Sohan Singh respondent from interfering in their possession. In the alternative they prayed that if not found in possession, they be delivered possession of the land in dispute.
3. Amar Singh real brother of the appellants and Bakshish Singh respondent was owner of the land subject matter of the present dispute. He died on 26/27.10.1987 at village Mallo Mazra. Amar Singh was bachelor and so the appellants and Bakshish Singh succeeded being his legal heirs/ brothers. Even Amar Singh executed a Will in their favour on 23.7.1975. It was averred that Sohan Singh had no connection with the deceased and since he threatened to take forcible possession of the land, hence the present suit.
4. Bakshish Singh as well as Sohan Singh contested the claim of the plaintiffs. As per their written statements they averred that Sohan Singh was adopted by Amar Singh and ever since the day of adoption he had been living with Amar Singh had been treating Amar Singh as his father who in turn used to treat Sohan Singh as his son. Sohan Singh denied the execution of Will by Amar Singh in favour of the appellants and Bakshish Singh Besides he averred that property in dispute was joint Hindu property and coparcenary property and as such he could not execute the Will in respect of the property in question. In addition thereto, Sohan Singh setup Will alleged to have been executed by Amar Singh on 26.10.1987 the day when he died.
5. Similarly Bakshish Singh resisted the claim of the plaintiffs, challenging their locus standi to file the present suit. It was further contended that plaintiffs are not in possession of the suit land. Supporting the case of Sohan Singh. Bakshish Singh stated that ever since the day of adoption Sohan Singh had been treating Amar Singh as his adoptive father who in turn had been treating him as his son. They had a common mess and they constituted Joint Hindu Family. Bakshish Singh also conceded that the property in the hands of Amar Singh was a joint Hindu property. Even the Will set up by the plaintiffs was not admitted to be correct. As regards the factum of adoption Bakshish Singh averred that Sohan Singh was adopted on the day of Basakhi in the year 1963. All ceremonies were duly performed by him and his wife and in this way Sohan Singh was given in adoption to Amar Singh. Later on to ward off any possible dispute which may arise after death of Amar Singh with regard to his inheritance, Amar Singh chose to get the adoption deed registered in the year 1974.
6. In replication the plaintiff denied the averments made in the two written statements with regard to the alleged adoption deed, nature of property etc. and chose to reaffirm what was stated in the plaint.
7. On the pleadings of the parties the following issues were framed :---
1. Whether the plaintiffs and defendant No. 2 are co-owners in joint possession of the suit land on the basis of valid Will, dated 23-7-1975, executed by deceased Amar Singh ? OPP.
2. Whether the plaintiffs are in joint possession of the suit land ? OPP.
3. Whether Sohan Singh defendant No. 1, is the adopted son of Amar Singh, deceased ? OPD.
4. Whether deceased Amar Singh, executed as valid Will, dated 26,10.87, in favour of Sohan Singh, defendant No. 1 ? OPD.
5. Whether the property in question is the joint Hindu Family and coparcenary property of the parties and whether Amar Singh deceased could not execute the Will in question ? OPD.
6. Whether the suit is not properly valued for purposes of Court-fee and jurisdiction ? OPD.
7. Whether the suit is not maintainable in the present form ? OPD.
7A. Whether the plaintiffs are entitled to injunction as prayed for ? OPP.
7B. Who her the plaintiffs and defendant No. 2 are entitled to a decree of possession against defendant No. 1, as alternative relief? OPP.
8. Relief.
In the connected matter (subject matter of the present Civil Revision) Bakshish Singh filed an application for grant of succession certificate having been nominated as his nominee by Amar Singh in respect of amont deposited with Agricultural Service Society. This application was resisted by the present appellants on the ground that no doubt Bakshish Singh was appointed as nominee by Amar Singh but latter on he filed an application for cancellation of his nomination and further appointed all his four brothers i.e. the plaintiffs and Bakshish Singh as his nominees. The Trial Court framed the following issues in this regard :--
1. Whether applicant was nominated by deceased, Amar Singh to receive the amount in question after his death, if so to what effect ? OPA.
2. Whether deceased Amar Singh executed a valid Will dated 23.7.1975 in favour of Darshan Singh, Karnail Singh, Parkash Singh and Bakshish Singh ? OPR.
3. Whether Sohan Singh respondent was adopted by deceased Amar Singh ? OPR.
4. Relief. Both the cases are consolidated.
8. On the basis of evidence, Trial Court came to the conclusion that Amar Singh executed registered adoption deed in favour of Sohan Singh with the undertaking that Sohan Singh will inherit the property of the deceased after his death. Trial Court further held that Amar Singh was not competent to executed Will in favour of anybody else. It was also held that no Will as alleged by Sohan Singh was executed by Amar Singh on 26.10.1987 i.e. on the date of death of Amar Singh. Resultantly the Trial Court dismissed the suit of the plaintiffs whereas allowed the claim of Bakshish Singh with regard to grant of succession certificate.
9. Lower Appellate Court once again examined the matter in dispute on facts as well as law. The learned Counsel for the appellants with a view to seek reversal of the judgment and decree of the Trial Court highlighted the Will dated 23.7.1975 whereby plaintiffs alongwith Bakshish Singh were to inherit the property of Amar Singh their brother. Counsel for the appellants also challenged the factum of adoption as well as its registration in the year 1974. Appellate Court examined these matters in its minutes details. Despite agreeing with the appellants that Amar Singh Executed Will dated 23.7.1975 in favour of the appellants and Bakshish Singh yet chose to decline the relief sought on the premise that as per stipulations in the adoption deed dated 30.4.1974 Amar Singh ceased to have any such right whereby Sohan Singh his adopted son could not be divested of his legitimate claim being his legal heir.
10. Similarly the lower Appellate Court found no merit in the plea of the appellants that Bakshish Singh is not entitled to recover the amount lying deposited with the Agricultural Service Society on the ground that more nomination does not confer on the nominee any beneficial interest, who in fact owns such a deposite as a trustee for person/persons who may be found entitled as per law.
11. The learned Counsel for the appellants has assailed these judgments and decrees of the Courts below on the grounds that the same are unsupported in the law and otherwise vitiated on the ground that material evidence has either been side-tracked or altogether ignored for no legitimate reason.
12. The first submission of the learned Counsel for the appellants is that Amar Singh duly Executed Will on 23.7.1975 in favour of the present appellants and their brother Bakshish Singh. Will was duly attested by attesting witnesses, which was registered as well. Amar Singh divested Sohan Singh on the ground that he instead of being helpful, had proved quite inimical and in fact had been threatening him with dire consequences. According to the Counsel this material averment in Ex. P. 1 Will dated 23.7.1975 has not been adverted to by the Courts below which has consequently resulted in failure of justice.
13. The matter in dispute revolves around the adoption deed dated 30.4.1974 and Will dated 23.7.1975. According to the defendant Sohan Singh he was adopted by Amar Singh way back on Baisakhi day in the year 1963 and ever since had been treating Amar Singh as his father who in turn had been treating him as his son. Not only this, to safeguard his interest and to ward off any possible mischief with regards to his inheritance Amar Singh on his own chose to reduce the same into writing and got the adoption deed registered on 30.4.1974. Highlighting the relevant contents of this adoption deed, the learned Counsel referred to the following words which when translated reads as:--
"Sohan Singh regards him as his father and I treat him as my son. Since no writing had been executed earlier and lest my son Sohan Singh be put to some loss on this count 1 in my perfect sense declare that Sohan Singh is my adopted son and he would perform all religious rituals like a natural son. Custom of Pagri Rasam shall also be performed by him. On my death like a natural son he would inherit all my properties movable as well as immovable as full owner thereof."
Execution of Will is in fact proved on record. Both the Courts after examining the evidence on record have found no fault with this document. All the same this document is to be examined in the light of the earlier adoption deed dated 30.4.1974 and other related evidence. Appellants had earlier taken up the stand that no adoption had taken place which was found to be without any substance by the Courts below. Before this Court the learned Counsel for the appellants has accepted the factum of adoption as well as the adoption deed Ex. D-1. All the same Counsel has urged that Amar Singh of his own sweet Will chose of divest Sohan Singh of his right to succeed as an adopted son for the reasons given in the Will itself. In this way both the Courts have erred in law in examining this document in the light of judicial pronouncements. The matter in dispute is not free from difficulty. The Will despite having been registered is not free from any element of suspicion especially in the light of adoption deed and the other evidence which will be referred to.
14. As per evidence on record to adoption deed was registered on 30.4.1974, Amar Singh left India on 9.5.1974 and came back to India on 20.7.1975. Date of Will is 23.7.1975. Admittedly there is no evidence on record that any ill feeling developed between Amar Singh and Sohan Singh after the date of adoption and before his leaving India on 9.5.1974. It is only between 20,7.1975 and 23.7.1975--the date of the Will dispute if any arose between both of them. Except for narration in the Will no evidence worthy of credence has been adduced by the plaintiffs on the basis of which one could form an opinion that relations between father and adopted son became so strained thereby compelling Amar Singh to divest Sohan Singh of his legitimate right to succeed. If there had been in fact some serious dispute between the two the same could have come to surface and reported to the police as is normally done in such like cases. In fact if we examine the time which of them allegedly spent together is about 12 days i.e. 9 days in 1974 and just 3 days in the month of July 1975. Since there was no dispute during 30 April, 1975 to 9th May, 1975, version as given in the Will Ex. D-l appears to be concocted.
15. This matter needs to be examined from another angle as well. Person having been adopted severes all his connection with the family of his birth. For all purposes adopted son becomes member of the family of his adoptive father, as per Section 12 of the Hindu Adoptions and Maintenance Act. On adoption he is entitled to succeed to the property of the adoptive father as his natural son. Process of adoption once completed cannot be reversed. This being the accepted position the matter is to be examined whether Amar Singh who in unequivocal terms bestowed all rights as of a natural son upon Sohan Singh could deprive him of the same by a subsequent document. Both the Counsel had laid emphasis to Section 13 of the Hindu Adoption and Maintenance Act. Counsel for the appellants contended that there being no agreement as envisaged by Section 13 of the Act, Amar Singh was well within his right to deprive his adopted son by executing a vaild Will in favour of the plaintiffs and Bakshish Singb. On the other hand Counsel for the Respondent has urged with some amount a vehemence that a bare reading of adoption deed clearly proves that there was an agreement between the parties and this being so any document executed subsequently whereby right of the adopted son to succeed is taken away, is wholly impermissible.
16. There is no separate writing with regard to any alleged agreement. To find out whether such an agreement exists or not one has to read all the contents of the adoption deed. On a careful perusal of the adoption deed I am of the view that admittedly there was some understanding between Amar Singh and Bakshish Singh at the time when Sohan Singh was given in adoption, parties lived happily since the Baisakhi day of 1963 upto 20th July 1975. During this period no grievance is stated to have been made by Amar Singh to his brothers including Bakshish Singh or to any other person expressing his unhappiness with his adopted son. The wording in the adoption deed clearly spells out an agreement between Amar Singh and Bakshish Singh, else Amar Singh would not have recorded that for all purposes Sohan Singh would be his son and perform all religious rituals like a natural son. Not only this he further stated that Sohan Singh would inherit all his properties movable as well as immovable. Since the adoption deed explicitly gave all such rights as flow to a natural son in case of inheritance, the reason for excluding Sohan Singh was concocted by the beneficiaries-plaintiffs, who otherwise also appear to have played active part in the execution of the Will. Arrival of Amar Singh from a foreign country on 20.7.1975 and execution of Will on 23.7.1975 and between these two dates there is no proof that any such dispute/incident ever took place, the narration in the Will in this regard is a tell-tale affair. Thus despite the formal proof as to execution of Will and registration etc. etc., the same cannot be said to satisfy the 'judicial conscience' as per decision of Apex Court in H. Venkatachala Iyenger's case, (AIR 1959 SC 443). Both the Courts relying on the adoption deed chose to ignore the Will for valid and cogent reasons. I find no ground to interfere with the well considered findings of the Courts below in this regard. Findings recorded by both the Courts are not vitiated on any ground as urged by the appellant.
17. Civil Revision relates to grant of succession certificate to Bakshish Singh on the basis of nomination in his favour. As held by the Courts below a nominee is entitled to recover the amount and is duty bound to hand over the same to a person whosoever is entitled to succeed. Nomination of Bakshish Singh had also been found to be in order by the Courts below. Civil Revision is also devoid of any merits, Resultantly appeal as well as Civil Revision are dismissed. Keeping in view the peculiar facts of the case, I leave the parties to bear their own costs.