Delhi District Court
Shri Sukh Charan Singh And Ors vs Mohinder Kaur And Ors on 29 October, 2024
IN THE COURT OF SH. SONU AGNIHOTRI, DISTRICT JUDGE-07
SOUTH-EAST DISTRICT, SAKET COURTS, DELHI
RCA No: 14/2024
CNR No. DLSE01-001955-2024
1. SUKH CHARAN SINGH (Through LRs)
a) NARINDER SINGH
S/o Late Sukh Charan Singh and Late Ms. Anant Kaur
R/o 838/14, Mahana Singh Road, Amritsar, Punjab.
b) RANJIT SINGH,
S/o Late Sukh Charan Singh and Late Ms. Anant Kaur
R/o House No. 565, Gali Mahana Singh,
Near Kundan Singh Sarai, Mahana Singh Road, Amritsar,
Punjab.
c) SMT. SAROBJIT KAUR
D/o Late Sukh Charan Singh and Late Ms. Anant Kaur
R/o House No. 87, New Golden Avenue,
Near Panj Peer, Amritsar, Punjab.
All through their duly appointed General Power of Attorney Holder Shri
Devinder Singh S/o Late Harkaram Singh R/o House No. 65, Shaheed
Bhagat Singh Road, inside Sherawala Gate, Amritsar, Punjab vide
duly Registered Power of Attorney dated 10.08.2023.
2. RAJINDER SINGH
S/o Late Sardar Tehal Singh
R/o House No. 8, Shiv Mandir Road, Adarsh Nagar,
Village Naya Gaon, District SAS Nagar, Mohali.
RCA No. 14/24 Page No. 1 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
3. SMT. AMRIT KAUR (DECEASED THROUGH LRs)
a) Smt. Dolly K. Chauhan
W/o Maj. Gen. Kamal Kumar (Retd.)
D/o Late Mrs. Amrit Kaur and Late Tehal Singh
R/o Flat No. 140, Block-F, Spangal Condos,
P. O. Dhakoli, Zirakpur, SAS Nagar, Punjab.
b) MANMOHAN SAXENA
S/o Late Mrs. Amrit Kaur and Late Tehal Singh
R/o 10, Yarana Street,
Ferntree Gully, VIC-3156, Melbourne, Australia.
and in India At :
Flat No. 140, Block-F, Spangal Condos,
P. O. Dhakoli, Zirakpur, SAS Nagar, Punjab.
4. SMT. DEVINDER KAUR @ RANI (Now deceased Through LRs)
a) SMT. PREETI ARORA
W/o Sardar B. P. Singh
D/o Late Smt. Devinder Kaur @ Rani and Late Tehal Singh
R/o 2/56, West Punjabi Bagh, New Delhi.
b) SARDAR JAGJIT SINGH
S/o Late Devinder Kaur @ Rani and Late Tehal Singh
R/o House 275, Sector-4,
MDC, Panchkula, Haryana.
c) SARDAR GURMIT SINGH
S/o Late Devinder Kaur @ Rani and Late Tehal Singh
RCA No. 14/24 Page No. 2 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
R/o House No. 1532, Sector-33B,
Chandigarh.
5. SMT. HARINDER KAUR @ BEWI
W/o Kanwarjit Singh
D/o Late Tehal Singh
R/o B-103, Vishnu Chamber Housing Society,
MAHADA, Malvani Malad, West Mumbai.
All through their duly appointed General Power of Attorney Holder
Mrs. Dolly K. Chauhan W/o Maj. Gen. Kamal Kumar (Retd.) D/o Late
Mrs. Amrit Kaur and Late Tehal Singh R/o Flat No. 140, Block-F,
Spangal Condos vide SPAs dated 28.05.2018, 24.08.2018,
16.11.2018, 25.08.2018 and 24.09.2018.
..... Appellants
Versus
1. SMT. MOHINDER KAUR (DECEASED)
Her sole LR as per Order dt. 16.11.1994 Shri Harbans Singh Gulati
(Husband) also deceased
(Both died Issue-less)
2. OM DUTT (DECEASED AND ISSUE-LESS WITH NO LRs)
3. YAG DUTT (DECEASED THROUGH LRs)
a) TARUN DUTT
S/o Late Yag Dutt
R/o B-16, Greater Kailash Enclave Part-II,
New Delhi.
b) SMT. SANGITA MINOCHA
D/o Late Yag Dutt
RCA No. 14/24 Page No. 3 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
R/o 41, Gorakhpur Narbada Road,
Jabalpur, Madhya Pradesh.
c) SMT. MONICA CHADHA
D/o Late Yag Dutt
R/o C-514, Sarita Vihar,
New Delhi.
4. DELHI DEVELOPMENT AUTHORITY
Through its Vice Chairman
Vikas Sadan, INA, New Delhi.
5. REGISTRAR OF COOPERATIVE SOCIETIES
J6G7+5CJ, Sansad Marg,
Old Court Building, Janpath,
Near Parliament Police Station,
New Delhi-110001.
6. E. P. R. REFUGEE REHABILITATION & HOUSE
Through its Secretary
Building Co-Op. Society Ltd., Greater Kailash Enclave-II,
Near Wireless Station, New Delhi.
..... Respondents
APPEAL UNDER SECTION 96 CPC AGAINST
JUDGMENT/DECREE DATED 11.01.2024
DATE OF INSTITUTION : 28.02.2024
DATE OF RESERVING FOR JUDGMENT : 26.09.2024
DATE OF DECISION : 29.10.2024
RCA No. 14/24 Page No. 4 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
JUDGMENT
1. Appellants/plaintiffs and original defendants No. 11 to 16 (including their LRs) have filed present appeal challenging judgment and decree dated 11.01.2024, passed by Court of Ms. Disha Singh, the then Ld. Civil Judge-02, West, Tis Hazari Courts, Delhi (henceforth referred to as 'Ld. Trial Court') in Suit No. 6958/2016, titled as 'Sukh Charan Singh Vs. Mohinder Kaur' whereby suit filed by plaintiffs was dismissed.
2. In the appeal, brief facts of the case as stated by appellants are as under:-.
3. It is stated that one Mr. Jeet Singh (brother of Smt. Anant Kaur- mother of original plaintiff in the suit) and (brother of Mr. Tehal Singh- father of appellants No. 2 to 5) was member of East Punjab Railway Refugee Rehabilitation and House Building Co-Operative Society Limited who was allotted piece of residential land bearing Plot No. B-16, Block-2, EPR Refugee Rehabilitation and House Building Co-Operative Society, Greater Kailash Enclave-II, New Delhi (hereinafter referred to as "Suit Property").
4. It is stated that Mr. Jeet Singh was married to Smt. Rajinder Kaur but that both have been living separately for several years before their respective demise. Both Mr. Jeet Singh and Smt. Rajinder Kaur died issue less.
RCA No. 14/24 Page No. 5 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
5. It is stated that Mr. Jeet Singh died on 16.12.1969. Since Mr. Jeet Singh was separated from his wife, his sister Smt. Anant Kaur (mother of original plaintiff) filed petition for grant of succession certificate with regard to movable assets owned by her brother Late Jeet Singh as were within her knowledge. Various disputes arose qua the said succession certificate between Smt. Anant Kaur and Smt. Rajinder Kaur but Smt. Rajinder Kaur died during its pendency and her beneficiaries as per alleged Will dated 27.05.1973 were substituted in her place. It is stated that the said Will of Smt. Rajinder Kaur was never proved or got probated under the law. However, disputes were settled amicably amongst parties and it was resolved that both set of claimants would succeed to Estate of Jeet Singh in equal shares with respect to movables at Amritsar. Thereafter, another succession certificate was applied for by both set of claimants for another sum of Rs. 9200/- left behind by Late Jeet Singh which was granted by Ld. Sub Judge at Amritsar vide order dated 22.01.1976 in favour of Smt. Anant Kaur to the extent of 50% and 50% in favour of children of sister of Smt. Rajinder Kaur i.e. defendants No. 7 to 10 in present suit.
6. It is stated that another suit was instituted by Anant Kaur and defendants No. 7 to 10 against Punjab and Sind Bank, Dehradun seeking mandatory injunction with respect to opening of locker which RCA No. 14/24 Page No. 6 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors was in name of Late Jeet Singh. During pendency of the said suit, Smt. Anant Kaur died on 13.04.1975 and original plaintiff Sukh Charan Singh was substituted in her place as plaintiff on basis of her last Will dated 09.04.1975. The said suit was dismissed and an appeal against dismissal was filed which was accepted by Ld. Senior Sub Judge vide judgment dated 07.12.1976 wherein rights of parties involved were settled and plaintiff and defendants No. 7 to 10 were declared to be entitled in equal shares. It is stated that suit property was never part of any succession certificate so obtained by Smt. Anant Kaur.
7. It is stated that thereafter, Smt. Anant Kaur came to know about an immovable property (suit property) owned by Late Jeet Singh in April-1975 after which, she served notice dated 06.04.1975 upon defendants No. 4 to 6 i.e. society seeking to transfer suit property in name of class-II heirs of late Jeet Singh. It is stated that since succession certificate granted by court at Amritsar did not mention suit property, DDA and Society refused request of Smt. Anant Kaur. It is stated that Smt. Anant Kaur also got to know that her brother Late Tehal Singh's biological daughter Smt. Mohinder Kaur (original defendant No. 1 herein) applied for succession certificate with respect to share certificate allotted by Society (original defendant No. 6) in favour of Late Jeet Singh in capacity of being his nominee in the same. It is stated that succession certificate for collecting debts and RCA No. 14/24 Page No. 7 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors securities of Late Jeet Singh as well as share certificate was granted by court of Sh. J. D. Kapoor on 23.07.1974. It is stated that the said succession certificate was only for the purpose of collection of debts and securities and had nothing to do with inheritance of suit property.
8. It is stated that subsequently, plaintiff Sukh Charan Singh after death of his mother Smt. Anant Kaur came to know that defendant No. 1 Smt. Mohinder Kaur had colluded with officials of DDA and Society and got suit property transferred in her favour on the basis that she was nominee of Late Jeet Singh.
9. It is stated that on 20.11.1975, defendant No. 4 /DDA intimated plaintiff that suit property has already been transferred and registered in name of defendant No. 1 Smt. Mohinder Kaur. Plaintiff being aggrieved by act of DDA in transferring suit property wrongly in name of Smt. Mohinder Kaur, filed suit titled as Sukh Charan Singh Vs. DDA seeking declaration and injunction vide Suit No. 56/1977 which suit was dismissed vide judgment dated 23.09.1978 by court of Sh. R. N. Jindal, the then Ld. Subordinate Judge, Delhi. Plaintiff filed an appeal against the said judgment bearing RCA No. 68/1978 which was disposed of by court of Sh. B. B. Gupta, the then Ld. ADJ vide judgment dated 28.02.1980 by concluding that since suit was only for mandatory injunction and declaration and other equal efficacious remedy under law was available, keeping in view principles enshrined RCA No. 14/24 Page No. 8 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors in Section 34 r/w Section 41 of Specific Relief Act, suit filed by plaintiff in that form was not maintainable and hence directed that instead of suit being dismissed, plaint should have been rejected and vide the said judgment, Ld. ADJ set aside order of dismissal and simply rejected plaint filed by plaintiff.
10. It is stated that plaintiff then filed fresh suit before Ld. Trial Court seeking declaration, mandatory injunction and possession against Smt. Mohinder Kaur apart from other defendants.
11. It is stated that in joint written statement filed by Smt. Mohinder Kaur alongwith Mr. Om Dutt and Yag Dutt, Smt. Mohinder Kaur admitted that Mr. Kuldeep Singh, Mr. Rajender Singh, Smt. Amrit Kaur, Smt. Gurbachan Kaur and Smt. Rani are sons and daughters of Mr. Tehal Singh and her brothers and sisters. She further stated that the said brothers and sisters knew that she had been adopted by Late Jeet Singh who had great love and affection for her and that Late Jeet Singh nominated her for inheriting share and all interest in the suit property. It is stated that defendant No. 1 further averred and admitted that Late Jeet Singh did not have any issue but also simply stated that he had validly adopted her as daughter.
12. It is stated that in her written statement, Smt. Mohinder Kaur further averred that defendants No. 2 and 3 were nephews of defendant No. 1's husband. It is stated that defendant No. 1 further RCA No. 14/24 Page No. 9 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors submitted that after death of Late Jeet Singh, defendant No. 1 alone is entitled to share certificate and suit property in capacity of she being his nominee.
13. It is stated that plaintiff in the plaint filed objected to the fact that Smt. Mohinder Kaur became owner of suit property in capacity of nominee in any manner and also averred that even if it is presumed that defendant No. 1 was nominee of Late Jeet Singh, such nomination does not grant any title to her qua suit property and that position of a nominee under law is that of a mere trustee who holds property on behalf of legal heirs of deceased. Plaintiff in replication filed inter alia categorically denied adoption of defendant No. 1 by Late Jeet Singh.
14. It is stated that suit so filed before Ld. Trial Court as such was filed against DDA, the Housing Society as well as against defendants No. 1 to 3 for the reason that lease deed dated 05.03.1975 executed in favour of defendant No. 1 was wrongly done and as such, not binding upon plaintiffs as per law and also for seeking that such lease deed be freshly executed in favour of class-II heirs of late Jeet Singh and accordingly possession of suit property be granted to LRs of Late Jeet Singh only.
15. It is stated that vide judgment dated 11.01.2024, Ld. Trial Court was pleased to dismiss suit filed by plaintiffs giving rise to RCA No. 14/24 Page No. 10 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors present appeal.
16. Following grounds of appeal have been pleaded by appellants:-
a) Because Ld. Trial Court erred both in facts and law as impugned judgment has been passed on wrong premise that original defendant No. 2 Late Om Dutt and original defendant No. 3 Late Yag Dutt and LRs of Late Yag Dutt namely Tarun Dutt, Smt. Sangeeta Minocha and Smt. Monica Chadha were substituted as LRs of Late Smt. Mohinder Kaur in the suit filed before Ld. Trial Court. It is evident from very first para of impugned judgment that it has been passed by Ld. Trial Court without going through record of the case as neither original defendants No. 2 and 3 nor LRs of deceased defendant No. 3 ever claimed themselves to be legal heirs of Smt. Mohinder Kaur nor did they file any application in this regard after demise of Smt. Mohinder Kaur in 1991 for their substitution as her legal heir.
b) Because Ld. Trial Court erred both in law and facts by holding that original defendants No. 2 and 3 were substituted as LRs of deceased Smt. Mohinder Kaur, since it is an admitted fact that Smt. Mohinder Kaur died on 02.09.1991 after which her husband Mr. Harbans Singh Gulati was substituted as her legal heir vide order dated 15.11.1994 on an application U/o 22 Rule 9 CPC and an application U/o 22 Rule 4 CPC filed by appellants seeking to bring on RCA No. 14/24 Page No. 11 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors record Mr. Harbans Singh Gulati i.e. husband of Smt. Mohinder Kaur.
Thereafter, an amended memo of parties dated 16.11.1994 was filed wherein Mr. Harbans Singh Gulati was substituted as defendant No. 1 in place of Late Smt. Mohinder Kaur. That Mr. Harbans Singh Gulati too expired in year 2008. Order dated 25.05.2009 passed by Ld. Trial Court recorded that defendant No. 1 (Mohinder Kaur) died in the year 1992 and her sole legal heir died on 19.01.2008 and till date, no application for impleadment of LRs is on record, hence, proceedings stand abated against defendant No. 1. All this was recorded in submissions of counsel for defendant No. 2 and LRs of defendant No.
3. Hence, it is evident that it was submitted on behalf of defendants No. 2 and 3 that proceedings stand abated against defendant No. 1 (being Mr. Harbans Singh Gulati ) and they did not claim themselves to be legal heirs of either Smt. Mohinder Kaur and her husband Mr. Harbans Singh Gulati. Ld. Trial Court passed impugned judgment on wrong presumption that Om Dutt and Yag Dutt were impleaded as LRs of Smt. Mohinder Kaur.
c) Because Ld. Trial Court erred in both facts and law since the said facts were even more clear in subsequent order dated 12.08.2009 which records presence of same counsel for defendants No. 2 and 3 in which submission of counsel for plaintiff is recorded stating that there is no need of impleading LRs of LR of deceased RCA No. 14/24 Page No. 12 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors defendant No. 1 (i.e. Smt. Mohinder Kaur) and that defendant No. 1 had died issue-less. Thus, the said order records an admitted fact that both Smt. Mohinder Kaur and her husband Mr. Harbans Singh Gulati died issue-less. No objection to this contention was ever raised by defendants Om Dutt and Yag Dutt which establishes this fact.
d) Because Ld. Trial Court erred in both law and facts as it is evident from the said orders that "sole" legal heir of original defendant No. 1 (Smt. Mohinder Kaur) too had died and there was no need for impleading LRs of defendant No. 1 as she had died issue-less. Defendants No. 2 and 3 never filed any application for their impleadment or substitution as LRs of deceased Smt. Mohinder Kaur nor they were ever substituted as LRs of Late Smt. Mohinder Kaur after death of her husband. Another memo of parties was filed on 30.04.2012 which clearly shows that Smt. Mohinder Kaur as defendant No. 1 since deceased, Mr. Om Dutt as defendant No. 2 since deceased and Mr. Yag Dutt as defendant No. 3 through his LRs namely Mr. Tarun Dutt, Smt. Sangeeta Minocha and Smt. Monica Chadha. Defendants No. 2 and 3 through LRs of defendant No. 3 were represented by their advocate Sh. Vikrant Arora and neither of these parties or counsel representing them till date has claimed that defendants No. 2 and 3 were legal heirs of Smt. Mohinder Kaur. Hence, impugned judgment passed on this very premise is contrary to RCA No. 14/24 Page No. 13 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors facts of the case and is completely perverse.
e) Because Ld. Trial Court erred both in facts and law as Ld. Trial Court in the beginning of impugned judgment has relied upon an erroneously filed amended memo of parties on 17.11.2018 filed on behalf of plaintiffs and on basis of this incorrect memo of parties, Ld. Trial Court has decided entire suit. Hence, impugned judgment is liable to be set aside on account of having been passed on wrong assumption and on account of having been passed without application of mind and against due process of law.
f) Because Ld. Trial Court erred in both facts and law as both Smt. Mohinder Kaur and Mr. Harbans Singh Gulati died issue-less and intestate which fact is evident from orders dated 25.05.2009 and 12.08.2009. Unfortunately Ld. Trial Court took into account amended memo of parties filed by plaintiff inadvertently on 17.11.2018 without any application U/o 22 Rule 4 CPC wherein it has been inadvertently mentioned that Om Dutt and Yag Dutt (including his LRs) are LRs of deceased defendant No. 1 late Smt. Mohinder Kaur. It is pertinent to mention that on 16.11.2018, correct amended memo of parties was filed by defendant Smt. Dolly Chauhan which was duly accompanied with formal application U/o 22 Rule 4 CPC for bringing on record LRs of Late Smt. Amrit Kaur on record wherein Om Dutt and Yag Dutt were mentioned as defendants No. 2 and 3 and LRs of defendant No. 3 RCA No. 14/24 Page No. 14 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors were shown with defendants No. 3 (i), (ii) and (iii) thereby correctly stating that defendant No. 1 still remained Smt. Mohinder Kaur who expired and no LRs of her were substituted in her place ever since demise of her husband Late Mr. Harbans Singh Gulati.
g) Because Ld. Trial Court erred in both facts and law as defendants No. 1(a to c) (as per erroneous amended memo of parties dated 17.11.2018) (original defendants No. 2 and 3) have never been substituted as LRs of Smt. Mohinder Kaur nor they even pleaded that they are LRs of Smt. Mohinder Kaur and that they were in possession of suit property in any such capacity nor they ever filed any application for their substitution as her legal heirs. Hence, entire premise and narration of facts given by Ld. Trial Court in very beginning of impugned judgment relying on amended memo of parties dated 17.11.2018 is wrong and base-less. Thus, impugned judgment deserves to be set-aside on this ground itself.
h) Because Ld. Trial Court erred in both facts and law with respect to holding Smt. Mohinder Kaur as an adopted daughter of Late Sh. Jeet Singh which is contrary to law as for any Hindu to be treated as validly adopted under the law, mandatory provisions under Section 6, 7 and 11(5) of Hindu Adoptions and Maintenance Act, 1956 have to be complied with. Mere recital that a person is adopted is not valid and holds no sanctity in law even if the person claiming has been treated RCA No. 14/24 Page No. 15 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors as son/daughter by the person he/she claims to have adopted him/her. I) Because Ld. Trial Court erred in both facts and law as Smt. Mohinder Kaur in her written statement has nowhere pleaded any particulars with respect to any date of adoption, venue of adoption nor any ceremonies of adoption have been pleaded by her i.e. details of she physically being given in adoption by her biological father Sardar Tehal Singh to Late Jeet Singh. Further, admittedly, there is no document recording factum of such adoption. Additionally, it is imperative under law for any person setting up claim of adoption that he/she must prove physical act of giving him/her in adoption by his/her natural parents to hands of adopting parent. Neither in the written statement nor in evidence of DW-3, the fact of giving and taking has been stated.
j) Because Ld. Trial Court erred in both facts and law since Smt. Mohinder Kaur except for a bald statement in para No. 2 of her written statement on merits that Mr. Jeet Singh had great love and affection for her and as such, Mr. Jeet Singh made her as sole nominee for inheriting his share and another bald statement in para No. 3 on merits that Late Jeet Singh had validly adopted her as his daughter, Smt. Mohinder Kaur did not plead as to how Late Jeet Singh had validly adopted her and how requisites of a valid adoption under law were complied with nor she ever pleaded as to when such alleged RCA No. 14/24 Page No. 16 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors adoption took place. PW-1 in his entire evidence nowhere admitted that Late Jeet Singh made Smt. Mohinder Kaur/defendant No. 1 his nominee by mentioning her as adopted daughter.
k) Because Ld. Trial Court erred in both facts and law as DW-3 in his cross-examination clearly stated that he has not seen any adoption deed with respect to adoption of Smt. Mohinder Kaur by Late Jeet Singh. He further stated that he has not seen any certificate of matric, inter or graduation issued by university in favour of Smt. Mohinder Kaur in this regard. No evidence has been placed on record by DW-3 as to when, where and / or date of adoption of Smt. Mohinder Kaur by Late Jeet Singh. Entire evidence of DW-3 is based on hearsay and not on any facts. Statement of DW-3 that he got to know about adoption at betrothal does not hold water as he does not even state as to who actually told him. Further, defendants did not produce anyone from family of Tehal Singh (natural father of Smt. Mohinder Kaur) to give evidence to the effect that Smt. Mohinder Kaur was given in adoption by Sardar Tehal Singh to Sardar Jeet Singh even though brothers and sisters of Smt. Mohinder Kaur namely Mr. Kuldeep Singh, Mr. Rajender Singh, Smt. Amrit Kaur, Smt. Gurbachan Kaur and Smt. Rani were alive and could have been brought to witness box to prove factum of adoption of Smt. Mohinder Kaur. The fact that none of the brothers and sisters of Smt. Mohinder Kaur were examined RCA No. 14/24 Page No. 17 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors clearly shows that defendants No. 2 and 3 were well aware that late Jeet Singh never adopted Smt. Mohinder Kaur as his daughter. Judgments filed by appellants were not taken into account by Ld. Trial Court.
l) Because Ld. Trial Court erred both in facts and law as requisites for adoption as discussed above have not been proved on record by defendants. There is no evidence of any kind that Smt. Mohinder Kaur was actually given in adoption by her natural father Sardar Tehal Singh to Sarder Jeet Singh and as to whether, there was any ceremony to that effect. Further, nowhere it has been pleaded or proved that consent of wife was ever taken. Thus, mandatory conditions as required under law remained unfulfilled and accordingly, claim of adoption of Smt. Mohinder Kaur also stands completely unsubstantiated.
m) Because Ld. Trial Court erred in both facts and law with respect to placing reliance on Section 32 (5) of Indian Evidence Act for proving factum of adoption of Smt. Mohinder Kaur. The statement made in nomination form was not a valid, correct or applicable document to prove valid adoption of Smt. Mohinder Kaur by Late Jeet Singh for following reasons:-
i) If Late Jeet Singh had actually and validly adopted Smt. Mohinder Kaur, there remained no reason for Late Jeet Singh to write RCA No. 14/24 Page No. 18 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors words "Niece (adopted daughter)" on the nomination form as once adoption is done, child become as good as a biological child and need not been referred as an "adopted son / daughter". Therefore, the fact that Late Jeet Singh wrote "Niece (adopted daughter)" in the nomination form itself makes it clear that Smt. Mohinder Kaur was never adopted by him and the said words were only written for sake of convenience of filling nomination form.
ii) Further, late Jeet Singh wrote word "Niece" before "adopted daughter" in the said nomination form which makes clear the fact that late Jeet Singh never adopted Smt. Mohinder Kaur as there was no reason in case of adoption to write his real / blood relation with Smt. Mohinder Kaur. Either a person can remain a Niece or can become an adopted daughter. It is unlikely when a person has been adopted to be referred as adopted when he / she is fully entitled under law to be referred as simply a daughter once adopted as such person has all the rights of a biological child.
iii) The fact that a proper and comprehensive statute is in existence with respect to valid adoption, Ld. Trial Court should not have gone beyond its purview and reliance upon a mere nomination form cannot be said to be a document worthy of placing reliance in order to prove an adoption. An entry in a nomination form in possession of a Govt. Agency is not a credible document to prove an RCA No. 14/24 Page No. 19 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors adoption, let alone a valid adoption. DDA is not an agency which can or which has jurisdiction to go into merits of an adoption and its validity at the time of accepting nomination forms as it is not an authority concerned with such issues.
iv) Further, testimony of DW-3 could not have been relied upon by Ld. Trial Court as admittedly he has stated that he was only "informed" about the said fact at betrothal ceremony of Smt. Mohinder Kaur. Neither DW-3 was witness to such alleged ceremony nor he was part of family of late Jeet Singh so as to assume that his knowledge was trustworthy. Further, DW-3 being an interested party can always manipulate his statement in order to prejudice court.
v) Plain reading of Section 32 of Indian Evidence Act shows that intention of legislature in laying down the said provision was only to state that such statements are "relevant facts" and it nowhere provides that such statements are automatically to be considered as admissible evidence or corroboratory evidence before courts and thus, unsubstantiated reliance by Ld. Trial Court on the said provision does not have any merits and cannot be allowed. The statement so made by Late Jeet Singh in the nomination form can at best be considered as relevant fact in present case. However, in absence of any compliance with the law laid down for a valid adoption, such relevant fact losses its relevance / importance and cannot be taken as a RCA No. 14/24 Page No. 20 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors ground for allowing factum of adoption in favour of Smt. Mohinder Kaur.
n) Because Ld. Trial Court erred in both facts and law while deciding issue No. 7 since adoption of Smt. Mohinder Kaur has not been proved by defendants, the fact that Late Jeet Singh and his wife Smt. Rajender Kaur died issue-less and the fact that alleged Will of Smt. Rajender Kaur has never been proved as per law which goes to prove that both Jeet Singh and his wife Rajender Kaur indeed died intestate and admittedly issue-less which fact has been admitted by Smt. Mohinder Kaur in her written statement. Hence, under law, once a person dies, his inheritance opens up immediately and cannot be kept in abeyance. Admittedly, since Jeet Singh and Smt. Rajender Kaur died issue-less, there are no class-I heirs left by them and thus, estate of Jeet Singh by virtue of provisions of Hindu Succession Act would be inherited by his Class-II heirs. Accordingly, Mrs. Anant Kaur (sister) and Sardar Tehal Singh (brother ) who were alive at the time of death of Late Jeet Singh and also at the time of demise of his wife Smt. Rajender Kaur were Class-II heirs of Late Jeet Singh. After their demise, their respective children being plaintiff and defendants No. 10, 11 A, 12 a to c and 13 are legal heirs of Late Jeet Singh. There is no dispute or any case is made out on behalf of any of defendants that plaintiff and above mentioned defendants are not legal heirs of Mrs. RCA No. 14/24 Page No. 21 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Anant Kaur and Sardar Tehal Singh respectively. Said fact has also not been denied by defendant No. 1 Smt. Mohinder Kaur in her written statement and that is why, no issue was framed in this regard. Ld. Trial Court erred in holding that plaintiffs and said defendants required declaration in this regard from competent court.
o) Because Ld. Trial Court erred in facts and law as it held that act of DDA in executing lease deed dated 05.03.1975 in favour of Smt. Mohinder Kaur on basis of mere nomination was valid and correct. It is well settled that mere nomination does not entitle nominee any right, title or interest in immovable property left by deceased. Admittedly, Late Jeet Singh had nominated Smt. Mohinder Kaur as his nominee in record of E. P. Railway Refugee Rehabilitation and House Building Co-Operative Society and succession certificate dated 23.07.1974 was granted in favour of Smt. Mohinder Kaur only for the purpose of shares allotted by the society and not for any right, title or interest in immovable property of Late Jeet Singh as grant of succession certificate deals only with movable properties. The said certificate only entitle Smt. Mohinder Kaur to collect debts and securities from the society and nothing more. Nomination by Late Jeet Singh in favour of Smt. Mohinder Kaur is only binding against the society and has no relevance regarding title of other family members of the family as inheritors or successors to property of deceased RCA No. 14/24 Page No. 22 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors which will be governed by appropriate law of inheritance. DDA on account of nomination and succession certificate had no authority to conclude that Smt. Mohinder Kaur was adopted daughter of Late Jeet Singh and DDA also had no jurisdiction to execute lease deed in favour of Smt. Mohinder Kaur without her getting a declaration from competent court to prove that she was adopted daughter of Late Jeet Singh. Hence, lease deed dated 05.07.1975 executed by DDA in favour of Smt. Mohinder Kaur is void ab-initio and plaintiff is correct in seeking declaration that such lease deed is not binding on plaintiff and defendants No. 10, 11 A, 12 a to 12 c and 13.
p) Because Ld. Trial Court erred in both facts and law as DDA executed lease deed dated 05.03.1975 in name of Smt. Mohinder Kaur on the wrong premise that she is rightly adopted daughter of Late Jeet Singh without adhering to law laid down in this regard. Further, since plaintiff and defendants No. 10, 11 A, 12 a to 12 c and 13 were neither executors or signatories to such documents, they cannot be asked to seek cancellation of conveyance deed because such exercise by DDA was in no way binding upon plaintiff and defendants No. 10, 11 A, 12 a to 12 c and 13. Rather DDA was duty bond to seek proper documentation and proof from Smt. Mohinder Kaur at the time of execution of such conveyance in her favour.
RCA No. 14/24 Page No. 23 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
q) Because Ld. Trial Court wrongly assumed Smt. Mohinder Kaur to be legally and validly adopted daughter of Late Jeet Singh and allowed legal heirs of defendant No. 3 to remain in possession of suit property though after demise of Smt. Mohinder Kaur on 02.09.1991, suit property automatically would be inherited by legal heir of Late Jeet Singh as envisaged in Section 15 (2) (a) of Hindu Succession Act in view of the fact that firstly admittedly Smt. Mohinder Kaur inherited suit property from her father and secondly, she admittedly died intestate and issue-less. In case, a female Hindu inherits a property from her father which has been contention of defendant No. 1 from the very beginning and such female Hindu dies intestate and issue-less, then the property so inherited devolves upon heirs of the father from whom it was original inherited meaning thereby that even such female Hindu's husband has no right, title or interest in such a property after her demise as he does not qualify to be legal heir in such a situation. Thus, even applying the said provision, Ld. Trial Court could not have granted relief of possession or allowed defendants No. 2 and 3 / LRs of defendant No. 3 to retain possession of suit property on the wrong premise that they are legal heirs of Smt. Mohinder Kaur.
r) Because Ld. Trial Court erred in both facts and law in not appreciating that it has been established that appellants have better title or rather have proper title over suit property after demise of Smt. RCA No. 14/24 Page No. 24 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Mohinder Kaur, she having died issue-less. If for sake of arguments, observation of Ld. Trial Court is considered to be correct in holding Smt. Mohinder Kaur as validly adopted daughter of Late Jeet Singh, Ld. Trial Court grossly erred in observing that defendants No. 2 and 3 / LRs of defendant No. 3 are allowed to continue with possession of suit property as they admittedly are not legal heirs of Smt. Mohinder Kaur nor they claimed their status as such during course of trial. Ld. Trial Court reached at this conclusion on basis of wrongly filed amended memo of parties on behalf of plaintiff.
s) Because Ld. Trial Court erred in law by wrongly applying judgment of Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma & Ors 2023 SCC Online 9 while deciding issue No. 7. Defendants No. 2 and 3 were never legal heirs of Smt. Mohinder Kaur. Defendants No. 2 and 3 never even once pleaded or claimed that they in any manner are legal heirs of Smt. Mohinder Kaur. Appellants have rather established a better legal title and interest over suit property. Appellants thoroughly established their case. Ld. Trial Court failed to appreciate that defendants No. 2 and 3 have failed to show that in what capacity, they have retained possession of suit property specifically after death of Smt. Mohinder Kaur and her husband. Ld. Trial Court has failed to refer judgments cited by appellants.
RCA No. 14/24 Page No. 25 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
t) Because Ld. Trial Court erred in both law and facts in not granting decree of declaration in favour of appellants declaring that lease deed dated 05.03.1975 executed in favour of defendant No. 1 by defendant No. 4 to be illegal and bad in law as DDA while executing the said lease deed was not having any authority to determine validity of adoption of Smt. Mohinder Kaur by Late Jeet Singh and Smt. Mohinder Kaur did not seek any such declaration from a competent court of law. Factum of a valid adoption can only be adjudicated by a competent court of law and not by a municipal authority. DDA was bound to seek proper documentation and proof in this regard from Smt. Mohinder Kaur at the time of execution of lease deed in her favour and could not have relied merely on nomination form since rights of other legal heirs were effected. Further, it is settled law that mere nomination does not entitle the nominee any right, title or interest in an immovable property left by deceased and DDA by executing lease deed dated 05.03.1975 in favour of Smt. Mohinder Kaur has overstepped its jurisdiction.
u) Because Ld. Trial Court erred in both facts and law by holding that defendants No. 9 to 16 as per original memo of parties stand Ex-parte whereas fact of the matter is that Mrs. Dolly K. Chauhan has been representing defendants No. 10, 11 A, 12 a to 12 c and 13 and they have never been proceeded Ex-parte.
RCA No. 14/24 Page No. 26 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
v) Because Ld. Trial Court erred in both law and facts in holding that since succession certificate dated 24.09.1974 in favour of Late Smt. Anant Kaur and defendants No. 7 to 10 has not been placed on record, plaintiff has not proved his claim of seeking declaration, possession and mandatory injunction. The said observation is wrong as the said succession certificate has nothing to do with suit property and the said succession certificate was regarding movables left by Late Jeet Singh at Amritsar.
w) Because Ld. Trial Court erred in both facts and law by holding that plaintiff has failed to seek declaration to get succession certificate dated 23.07.1974 in favour of Smt. Mohinder Kaur to be declared as null and void. It is stated that the same is not required as succession certificate was granted with respect to share No. 280 lying with E. P. R. Refugee and Rehabilitation House Building Co-operative Society and such succession certificate was merely granted empowering Smt. Mohinder Kaur to collect debts and securities lying with the society and the said succession certificate in no way conferred any title qua suit property and Smt. Mohinder Kaur never applied for any declaration that she be declared as owner qua suit property. The said succession certificate is with respect to movables only and is not final or binding document between parties and hence, plaintiff was not bound to challenge the same.
RCA No. 14/24 Page No. 27 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
x) Because as stated above, that entire process of executing lease deed dated 05.03.1975 on strength of a mere succession certificate was completely wrong, nonest and illegal and Ld. Trial Court grossly erred in holding that the said succession certificate empowers Smt. Mohinder Kaur to become owner of suit property and that her nomination by Jeet Singh in the said society record amounts to ownership of the suit property.
y) Because Ld. Trial Court erred in both facts and law by relying on wrongly filed amended memo of parties dated 17.11.2018 for adjudication of present suit. The said amended memo was not required to be filed in any manner as amended memo is required to be filed on death of a party alongwith accompanying application. The said amended memo of parties dated 17.11.2018 could not have been taken into consideration by Ld. Trial Court.
z) Because Ld. Trial Court erred in both law and facts by not appreciating the law with respect to adoption before 1956 i.e. before commencement of Hindu Adoptions and Maintenance Act, 1956, a daughter was barred by law from being adopted and only sons could have been adopted as per law.
aa) Because Ld. Trial Court erred in not referring to any of 13 judgments filed by plaintiff and defendants No. 10, 11 A, 12 a to 12 c.
RCA No. 14/24 Page No. 28 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
17. It is prayed to set aside impugned judgment and decree dated 11.01.2024 and to pass appropriate order decreeing suit filed by plaintiffs in terms of prayers made in the plaint.
18. Cross objections were filed on behalf of respondent No. 3
(a) U/o 41 Rule 22 CPC wherein respondent No. 3 (a) prayed for accepting cross objections against findings given qua issues No. 1 to 5 and to reverse the said findings and upheld impugned judgment. It is stated that respondent is supporting the impugned judgment and decree but is challenging findings given by Ld. Trial Court qua issues No. 1 to 5.
19. Following grounds are taken by respondent No. 3 (a) for seeking setting aside of findings of Ld. Trial Court qua issues No. 1 to 5 :-
a) Because Ld. Trial Court failed to consider that suit has not been properly valued for the purpose of court fees and jurisdiction by appellants. Value of plot is Rs. 6 lacs and plaintiff valued market value of share of plot at Rs. 1 lac. Appellant was liable to pay court fee on value of plot as a whole and not only on his share of plot. Appellant has failed to pay adequate court fee for reliefs of cancellation, declaration and injunction as per law. No evidence was required for decision of the said issue in view of admitted facts on record.RCA No. 14/24 Page No. 29 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
b) Because Ld. Trial Court failed to consider that suit filed by appellants was barred by time. Cause of action for filing present suit as per averments of appellants firstly arose on 24.09.1974 and 05.03.1975 when the lease deed was executed by DDA in favour of original defendant No. 1 and again on 20.11.1975 when defendant No. 4 pointed out that suit property has already been transferred in name of defendant No. 1. Suit claiming appropriate reliefs could have been filed within 03 years of execution of documents i.e. 05.03.1975 which admittedly has not been done by appellants as present suit was filed only on 16.02.1981 and as such, present suit is barred by time.
Reference be made to Article 58 and 59 of Limitation Act. No evidence was required for decision of said issue in view of admitted facts on record.
c) Because Ld. Trial Court failed to consider that even benefit of Section 14 of Limitation Act or any other provision cannot be claimed by appellants as firstly no application under Section 14 of Limitation Act was moved by appellants before Ld. Trial Court seeking benefit of limitation by way of exclusion of time and secondly, suit was not dismissed / rejected on technical grounds and infact, same was decided after trial on merits as well as under provisions of Specific Relief Act and as such, suit cannot be said to be dismissed / rejected on technical grounds and no benefit of Section 14 of Limitation Act or RCA No. 14/24 Page No. 30 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors any other provision can be granted to plaintiffs.
d) Because Ld. Trial Court failed to consider that no notice U/sec 80 CPC and Section 90 of Co-Operative Society Act and Section 53 A of DDA Act was given by appellants to concerned parties and as such, present suit is not maintainable because of non service of mandatory notice on Govt. Authorities. No evidence is required for decision of the said issue in view of admitted facts on record.
e) Because Ld. Trial Court failed to consider that suit filed by appellants is not maintainable as appellants admittedly had no locus standi to file the same as they are not first class legal heirs of Late Jeet Singh. Jeet Singh died on 16.12.1969 and his class-I legal heirs was Smt. Mohinder Kaur (his adopted daughter) and Smt. Rajender Kaur (his wife) as per provisions of Hindu Succession Act. Only person who could have challenged transfer of suit property in name of Smt. Mohinder Kaur was Smt. Rajender Kaur but she never filed any suit after claim made by her was rejected by DDA. No evidence was required for decision of the said issue in view of admitted facts on record.
f) Because Ld. Trial Court failed to consider that suit filed by appellants was liable to be dismissed on the ground that appellants i.e. legal heirs of Late Sukhcharan Singh unequivocally and unconditionally admitted that defendant No. 1 Late Smt. Mohinder RCA No. 14/24 Page No. 31 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Kaur was adopted daughter of Late Jeet Singh who obtained succession certificate in respect of suit property on account of which, DDA executed conveyance deed dated 05.03.1975 in her favour and further admitted that she became absolute owner of suit property. The said admission has been made in deed of settlement / compromise deed dated 06.11.2020 executed by LRs of plaintiff and filed before court. Further, plaintiffs also moved an application U/o 23 Rule 3 CPC confirming contents of settlement deed dated 06.11.2020 and filed affidavits in support thereof before court. Admissions made by LRs of plaintiff are binding upon them and in view of the same, reliefs claimed in present suit became infructuous and suit ought to have been dismissed on that ground alone.
20. It is prayed to accept cross objections of respondent No. 3
(a) and to set aside findings qua issues No. 1 to 5 passed by Ld. Trial Court in the impugned judgment and dismiss the suit on the said issues also and to upheld impugned judgment and decree.
21. I have heard arguments addressed by respective counsels and perused the record including TCR, written arguments/ submissions / additional written submissions/ arguments and judgments filed on behalf of parties.
22. Appellants have contended that impugned judgment has been passed by Ld. Trial Court on wrong premise that original RCA No. 14/24 Page No. 32 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors deceased defendants No. 2 and 3 and LRs of deceased defendant No. 3 were LRs of original deceased defendant No. 1 Smt. Mohinder Kaur whereas in actual, they never claimed themselves to be LRs of original deceased defendant No. 1 nor they filed any application in this regard after demise of Smt. Mohinder Kaur in 1991. It is contended that after death of Smt. Mohinder Kaur in 1991, her husband Mr. Harbans Singh Gulati was substituted as her legal heir as per order dated 15.11.1994 on an application moved under Order XXII Rule 9 CPC and an application under Order XXII Rule 4 CPC filed by plaintiff in this regard. Thereafter, an amended memo of parties dated 16.11.1994 was filed by plaintiff on record wherein Mr. Harbans Singh Gulati was substituted as defendant No.1 in place of Late Smt. Mohinder Kaur. Appellants have contended that another memo of parties was filed on 30.04.2012 which shows Smt. Mohinder Kaur as defendant No.1 since deceased, Mr. Om Dutt as defendant No. 2 since deceased and Mr. Yag Dutt as defendant No. 3 through his LRs namely Mr. Tarun Dutt, Smt. Sangeeta Minocha and Smt. Monika Chaddha. Appellants have contended that defendants No. 2 and 3 and LRs of defendant No. 3 were represented by their Advocate Sh. Vikrant Arora and neither of these parties or counsel representing them stated or claimed that defendants No. 2 and 3 were legal heirs of Late Smt. Mohinder Kaur. Appellants have contended that since Late RCA No. 14/24 Page No. 33 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Smt. Mohinder Kaur and Harbans Singh Gulati, both died issue-less and intestate, at no point of time, anyone was substituted as their legal heir as is evident from orders dated 25.05.2009 and 12.08.2009. Appellants contended that inadvertently wrong amended memo of parties was filed on behalf of plaintiff on 17.11.2018 which though not filed with any application under Order XXII Rule 4 CPC but was still wrongly relied by Ld. Trial Court in impugned judgment. Appellants contended that correct amended memo of parties was filed by defendant Smt. Dolly Chauhan on 16.11.2018 which was accompanied by formal application under Order XXII Rule 4 CPC to bring on record LRs of deceased Smt. Amrit Kaur on record.
23. Perusal of impugned judgment shows that Ld. Trial Court has referred to latest amended memo of parties dated 17.11.2018 filed by plaintiff which contains details of LRs of parties to the suit as on institution and also as on today. Ld. Trial Court in the beginning of impugned judgment has adopted amended memo of parties dated 17.11.2018. Perusal of Trial Court record shows that suit filed by appellants was dismissed in default and for non-prosecution by Ld. Trial Court vide order dated 13.11.2017 thereafter, LRs of deceased plaintiff filed an application under Order IX Rule 9 CPC for restoration of suit. Perusal of Trial Court record further shows that vide order dated 05.09.2018, Ld. Trial Court directed counsel for plaintiffs to file RCA No. 14/24 Page No. 34 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors fresh memo of parties as earlier memo of parties did not reflect correct position of parties and counsel for plaintiff in pursuance of this order filed memo of parties before Ld. Trial Court on 17.11.2018 but perusal of Trial Court record shows that in order dated 12.08.2009, it has come on record that an application under Order XXII Rule 4 CPC for impleading LRs of LRs of deceased defendant No. 1 was on record. Counsel for plaintiff submitted that there is no need of impleading LRs of LRs of deceased defendant No. 1 and that defendant No. 1 had died issue-less. This submission was made by counsel for plaintiff/appellants in presence of counsel for defendants No. 2 and 3 which was not objected to or opposed by counsel for defendants No. 2 and 3. Original defendant No. 1 before Ld. Trial Court was Smt. Mohinder Kaur. On death of Smt. Mohinder Kaur, her husband Mr. Harbans Lal Gulati was impleaded as her LR. During course of arguments on present appeal, it was not disputed by counsel for respondent No. 3(a) that Late Smt. Mohinder Kaur and her husband Mr. Harbans Lal Gulati died issue-less. Original defendant No.1 filed joint written statement with original defendants No. 2, 3, 12 and 13 before Ld. Trial Court. In their written statement, defendants admitted that defendants No. 2 and 3 are nephews of defendant No. 1's husband. Admission of the fact that original defendants No. 2 and 3 were nephews of defendant No.1's husband show that they cannot be RCA No. 14/24 Page No. 35 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors substituted as LRs of deceased defendant No. 1 as they were related to husband of deceased defendant No. 1 Smt. Mohinder Kaur who also expired and after death of deceased defendant No. 1, Smt. Mohinder Kaur and her husband, practically there was no Class-I legal heir alive for substitution as nephews of husband of wife are not legal heirs as per Hindu Succession Act. Hence, it can be said that Ld. Trial Court started writing impugned judgment on wrong premise so far as LRs of parties is concerned. Original defendants No. 2 and 3 and LRs of deceased defendant No.3 were independent parties to suit filed before Ld. Trial Court as at the time of filing of suit, they were constructing over suit property along with deceased defendant No. 1 and are in possession of suit property even till date but not as legal heirs of deceased defendant No. 1 Smt. Mohinder Kaur. Reliance by Ld. Trial Court on memo dated 17.11.2018 is thus misplaced.
24. Appellants have contended that Ld. Trial Court erred in holding Smt. Mohinder Kaur as adopted daughter of Late Jeet Singh which is contrary to Section 6, 7 and Section 11 of Hindu Adoptions and Maintenance Act, 1956.
25. Section 6 of Hindu Adoptions and Maintenance Act provides as below:
"6. Requisites of a valid adoption.- No adoption shall be valid unless-RCA No. 14/24 Page No. 36 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter
26. Section 7 of Hindu Adoptions and Maintenance Act provides as below:
7. Capacity of a male Hindu to take in adoption.-
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.RCA No. 14/24 Page No. 37 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Explanation.- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
27. Section 11 of Hindu Adoptions and Maintenance Act provides as below:
11. Other conditions for a valid adoption.- In every adoption, the following conditions must be complied with:-
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son, or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) leaving at the time adoption; RCA No. 14/24 Page No. 38 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption:
28. Defendant No. 1 in joint written statement filed by her has nowhere pleaded any particulars with respect to date of her adoption, venue RCA No. 14/24 Page No. 39 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors of such adoption and ceremonies of adoption and also did not plead that she was physically given in adoption by her biological father Sardar Tehal Singh to Late Jeet Singh which prima-facie shows non-compliance of Section 11 of Hindu Adoptions and Maintenance Act, 1956 which makes alleged adoption of defendant No. 1 by Late Jeet Singh to be invalid. Further, there is no document brought on record by defendant No. 1 or for that matter by any other defendant recording factum of such adoption. Defendant No. 1 in her written statement filed has stated that Late Jeet Singh applied for divorce with his wife Smt. Rajender Kaur but has not proved any judgment and decree passed in this regard meaning thereby that for valid adoption of deceased defendant No. 1 Smt. Mohinder Kaur by Late Jeet Singh, consent of wife of Late Jeet Singh namely Smt. Rajender Kaur was required in terms of Section 7 of Hindu Adoptions and Maintenance Act, 1956 which consent has not been proved on record by defendant No. 1 or by any other defendant for that matter meaning thereby that valid conditions for adoption of deceased defendant No. 1 by Late Jeet Singh have not been proved on record by defendant No. 1 or for that matter by any other defendant.
29. Further, defendant No. 1 did not examine any of her siblings who were very much party to present suit to prove factum of her alleged adoption by Late Jeet Singh and who could have been one of the best evidence to prove alleged adoption of Late Smt. Mohinder Kaur by Late Jeet Singh.
RCA No. 14/24 Page No. 40 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
30. Appellants have relied upon judgment in case titled as "M. Vanaja Vs. M. Sarla Devi (dead) (2020) 5 SCC 307" wherein Hon'ble Supreme Court of India held that to prove a valid adoption, compliance of conditions in Chapter I of the 1956 Act is mandatory for an adoption to be treated as valid. The two most important conditions as mentioned in Section 7 and 11 of the 1956 Act are the consent of the wife before a male Hindu adopts a child and proof of ceremony of actual giving and taking in adoption.
31. Appellants further relied upon judgment in case titled as "Nilima Mukherji Vs. Kanta Bhushan Ghosh AIR 2001 SC 2725" wherein Hon'ble Supreme Court of India held that since there was not even an iota of evidence to show that any ceremony of adoption was ever performed and the appellant was actually handed over for adoption by her parents to Late Ramesh Chand Ganguly, she failed to prove adoption.
32. In view of law as relied upon by appellants and as cited above, in view of provisions of Section 6, 7 and 11 of Hindu Adoptions and Maintenance Act, 1956 and in view of factual discussion as made above, I am of the view that defendant No. 1 or for that matter respondent No. 3 (a) in appeal have failed to prove adoption of Late Smt. Mohinder Kaur by Late Jeet Singh in accordance with provisions of Hindu Adoptions and Maintenance Act, 1956.
RCA No. 14/24 Page No. 41 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
33. Ld. Trial Court in impugned judgment has recorded that PW-1 admitted that Late Jeet Singh made Smt. Mohinder Kaur/defendant No. 1 his nominee by mentioning her as adopted daughter. Perusal of testimony of PW-1 shows that he in his cross-examination admitted that Jeet Singh made defendant No. 1 as his nominee in the records of EPR Housing Society in relation to property in question. However, he denied that Jeet Singh made her nominee mentioning that defendant No. 1 is the adopted daughter of Jeet Singh. He again said that she might have been nominated. Perusal of cross-examination of PW-1 shows that above made observation of Ld. Trial Court in impugned judgment is incorrect and is contrary to what has been stated by PW-1 in his cross-examination.
34. Ld. Trial Court in impugned judgment has observed that DW-3 reiterated stand taken by defendants No. 2 and 3 in their written statement filed along with defendants No. 1, 12 and 13 and that no contradiction could be brought out by plaintiff's side in testimony of DW-3. It further observed that DW-3 further categorically stated that they were informed that Smt. Mohinder Kaur/defendant No. 1 was adopted daughter of Late Jeet Singh at the time of betrothal ceremony of Smt. Mohinder Kaur/defendant No. 1 with their uncle. Ld. Trial Court further observed that it is of the opinion that testimony of DW-3 inspires confidence.
35. DW-3 in his cross-examination stated that he has not seen any adoption deed with respect to adoption of Smt. Mohinder Kaur by Jeet RCA No. 14/24 Page No. 42 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Singh. He volunteered that there never used to be any adoption deed when Smt. Mohinder Kaur was adopted about 70 years ago (it is pertinent to mention that cross-examination of DW-3 was recorded on 29.03.2005 meaning thereby that alleged adoption of Smt. Mohinder Kaur pertained to pre-independence era i.e. before enactment of Hindu Adoptions and Maintenance Act, 1956). DW-3 further stated that he is saying that Smt. Mohinder Kaur was adopted daughter of Sardar Jeet Singh because he saw it in register maintained by cooperative society wherein it was written that Smt. Mohinder Kaur was adopted daughter of Sardar Jeet Singh. He further stated that he was informed at time of betrothal ceremony of Smt. Mohinder Kaur that she was adopted daughter of Sardar Jeet Singh.
36. In view of what has been stated by DW-3 in his cross- examination as mentioned in last para, I am of the view that DW-3 cannot be said to be direct witness to alleged adoption of Late Smt. Mohinder Kaur/defendant No. 1 by Late Jeet Singh. DW-3 has even not stated source of his information as to who told him at betrothal ceremony of Late Smt. Mohinder Kaur that Late Smt. Mohinder Kaur was adopted by Late Jeet Singh. Rather from cross-examination of DW-3, it appears that he told this fact on account of nomination entry in favour of Late Smt. Mohinder Kaur in register of EPR Housing Society. At best, testimony of DW-3 can be said to be heresay evidence which cannot be made basis to conclude that a particular fact stands proved. So, reliance upon testimony of DW-3 by Ld. RCA No. 14/24 Page No. 43 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Trial Court is palpably wrong.
37. DW-3 in his cross-examination stated that he cannot tell whether Smt. Mohinder Kaur was a graduate or not. He further stated that but he thinks that she was graduate. He stated that he did not see any certificate of matric, inter or graduation issued by the universities in favour of Smt. Mohinder Kaur.
38. In absence of any other proof, education record of Late Smt. Mohinder Kaur would have been one of the best corroborating evidence to show that defendant No. 1 was allegedly adopted daughter of Late Jeet Singh but defendants No. 1 to 3 failed to prove the same on record.
39. Appellants relied upon judgment in case titled as "M. Gurudas and Others Vs. Rasaranjan and Others (2006) 8 SCC 367" wherein Hon'ble Supreme Court of India held that "It is now settled that the adoption of a daughter is invalid under the Hindu Law.".
40. Appellants further relied upon judgment in case titled as "Shahid S. Sarkar and Others and Usha Ramrao Bhojane Vs. Mangala Shivdas Dandekar and Others 2017 SCC Online Bom 3440" wherein Hon'ble High Court of Bombay referred to judgment of Hon'ble Supreme Court of India in M. Gurudas and Others (Supra) and held that 'The Supreme Court has clearly stated that it is now settled that adoption of a daughter is invalid under ancient Hindu Law. This is obviously prior to the RCA No. 14/24 Page No. 44 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors enactment of the Hindu Adoptions and Maintenance Act, 1956.'
41. As discussed above, if what has been stated by DW-3 in his cross examination is taken on its face value that alleged adoption of deceased defendant No. 1 by Late Jeet Singh took place in pre independence era then as per law cited by appellants and discussed above, adoption of Smt. Mohinder Kaur by Late Jeet Singh was not valid, she being daughter/female.
42. Appellants have contended that Ld. Trial Court in impugned judgment wrongly relied upon Section 32 of Indian Evidence Act in order to conclude that Late Smt. Mohinder Kaur was adopted daughter of Late Jeet Singh.
43. Ld. Trial Court in impugned judgment has referred to Section 32 (5) of Indian Evidence Act as per which, statement relating to existence of any relationship by blood, marriage or adoption between person as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised to be relevant. Ld. Trial Court observed that in facts of present matter, such a statement was made by Late Jeet Singh at the time of filing of nomination form on 09.11.1968 wherein he nominated name of Smt. Mohinder Kaur / defendant No. 1 as his nominee being his niece (adopted daughter). It further observed that this statement was made by Late Jeet Singh prior to dispute arose between the parties RCA No. 14/24 Page No. 45 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors hereto and thereafter, Jeet Singh expired on 16.12.1969 and hence, it become a relevant fact in the light of above said provision and also have presumption of existence of these entries and statement existing in the nomination register maintained by Society / defendant No. 6 in ordinary course of their working as per Section 114 of Indian Evidence Act as already discussed.
44. Appellants to this reasoning of Ld. Trial Court submitted that intention of legislature in enacting Section 32 of Indian Evidence Act was to state that such statements are relevant facts and it nowhere reads that such statements are automatically considered as admissible evidence or corroboratory evidence before courts. Appellants further submitted that the statement so made by Late Jeet Singh in the nomination form can at best be considered as a relevant fact in present case but in absence of proof of compliance of provisions of Section 6, 7 and 11 of Hindu Adoptions and Maintenance Act, 1956, alleged adoption of Smt. Mohinder Kaur by Late Jeet Singh cannot be said to be valid and in case, adoption was in pre independence era, adoption of a daughter was not permitted under Ancient Hindu Law as discussed in judgment of Hon'ble Supreme Court of India as cited above. Appellants relied upon judgment of Hon'ble High Court of Karnataka in case titled as "Doreswamy Gowda Vs. Siddamma & Others in RSA No. 2587/2011" wherein it was held that "Understanding of S. 32 (5) of the Evidence Act is only with respect to such statements being "relevancy RCA No. 14/24 Page No. 46 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors of fact" and not of such statements being "automatically proved"."
45. I find force in submissions made on behalf of appellants in this regard and purport of Section 32 (5) of Indian Evidence Act is only relevancy of such statement but relationship by way of adoption was to be proved by defendant No. 1 in accordance with law which has not been proved by defendant No. 1 as discussed above. In these circumstances, I am of the view that too much reliance placed upon by Ld. Trial Court on nomination form dated 09.11.1968 allegedly filled by Late Jeet Singh and corresponding record of the same being proved by DW-2 is misplaced and cannot be sustained.
46. Appellants further contended that Ld. Trial Court erred in holding that act of DDA in executing lease deed dated 05.03.1975 in favour of Smt. Mohinder Kaur on basis of mere nomination form was valid and correct.
47. It is well settled that mere nomination does not entitle nominee any right, title or interest in an immovable property left by deceased. Admittedly, Late Jeet Singh nominated Smt. Mohinder Kaur / deceased defendant No. 1 as his nominee in record of E. P. Railway Refugee Rehabilitation and House Building Co-operative Society and succession certificate dated 23.07.1974 was granted in favour of Smt. Mohinder Kaur qua shares of the said society and not for any right, title or interest in immovable property as grant of Succession Certificate deals only with movable properties. The said succession certificate only entitled Smt. RCA No. 14/24 Page No. 47 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Mohinder Kaur to collect debts and securities from the said society and nothing more. The said nomination may be binding qua said society but has no relevance so far as interest of other legal heirs of Late Jeet Singh in suit property is concerned which will be governed by law of inheritance. DDA is not an adjudicating authority which can conclude that Smt. Mohinder Kaur was adopted daughter of Late Jeet Singh without declaration from a competent court that she was adopted daughter of Late Jeet Singh.
48. Appellants relied upon judgment in case titled as "Promila Sharma Vs. State & Ors 2018 SCC Online Del 10085" wherein Hon'ble High Court of Delhi held that "Thus, it is amply clear from the judgments that the nomination in a co-operative society is only binding against the society and has no relevance regarding the title of other family members of the family as inheritors or successors to the property of deceased which will be governed by appropriate law of inheritance."
49. Thus, in this case, DDA being not an adjudicating authority, it could not have impinged upon rights of legal heirs of Late Jeet Singh to lay their claim on suit property in accordance with law of inheritance applicable to them.
50. Further, Late Jeet Singh in nomination form dated 09.11.1968 mentioned word "Niece" before "(adopted daughter)" after name of Smt. Mohinder Kaur which makes it clear that Late Jeet Singh never adopted RCA No. 14/24 Page No. 48 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Smt. Mohinder Kaur as had he really adopted Smt. Mohinder Kaur, there was no reason to write his real / blood relation with Smt. Mohinder Kaur in the said nomination form alongwith word "adopted". A person may remain a Niece or become an adopted daughter. As it is well settled that adopted children have same rights vis-a-vis natural children of a person, word "adopted" was not required to be used by Late Jeet Singh and use of the same alongwith word Niece symbolizes that Late Smt. Mohinder Kaur might not have been in actual adopted by Late Jeet Singh.
51. It is not in dispute that Late Jeet Singh and his wife Smt. Rajender Kaur died issue-less. Alleged Will of Smt. Rajender Kaur has not seen light of proof which goes on to prove that both Late Jeet Singh and Smt. Rajender Kaur died intestate. It is well settled that under the law, once a person dies, his inheritance opens up immediately and succession to his estate cannot be kept in abeyance. As Late Jeet Singh and Smt. Rajender Kaur died issue-less and intestate, leaving no class-I heirs, estate of Late Jeet Singh by virtue of provisions of Hindu Succession Act would be inherited by his class-II heirs.
52. In context of present case, class-II heirs of Late Jeet Singh were his siblings namely Smt. Anant Kaur (sister) and Sardar Tehal Singh (brother) who were alive at the time of death of Late Jeet Singh and also at the time of death of Smt. Rajender Kaur. After demise of Smt. Anant Kaur and Sardar Tehal Singh, their children being plaintiffs and defendants No. RCA No. 14/24 Page No. 49 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors 11 to 16 are heirs of Late Jeet Singh. Last but not the least, I could not lay my hands on any affidavit in support of written statement jointly filed by defendant No. 1 alongwith other defendants on trial court record which otherwise demolishes defence of defendants and written statement filed by defendants as such looses its value and so does evidence led by defendants.
53. Appellants have contended that assuming though not admitting that Ld. Trial Court correctly held that Smt. Mohinder Kaur was legally and validly adopted daughter of Late Jeet Singh, then too, Ld. Trial Court erred in law and facts to allow LRs of deceased defendant No. 3 Yag Dutt to remain in possession of suit property as on demise of Smt. Mohinder Kaur on 02.09.1991, suit property would automatically be inherited by LRs of father Late Jeet Singh as envisaged under Section 15 (2) (a) of Hindu Succession Act. It is contended that Smt. Mohinder Kaur allegedly inherited suit property from her father and no Will of father Late Jeet Singh has either been pleaded or proved on record by deceased defendant No. 1 and further, it is not in dispute that Smt. Mohinder Kaur died intestate and issue-less.
54. Section 15 (2) (a) of Hindu Succession Act has been referred to by appellants which provides as below:-
(2) Notwithstanding anything contained in sub section (1) -
(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased RCA No. 14/24 Page No. 50 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub -section (1) in the order specified therein, but upon the heirs of father;
55. Appellants have contended that thus it is clear that in event of a female Hindu inheriting property from her father which has been contention of defendant No. 1 right from the very beginning and such female Hindu dies intestate and issue-less which is an admitted position, in such cases, property so inherited devolves upon heirs of father from whom it was originally inherited. Appellants have contended that applying the said legal position, Ld. Trial Court could not have granted relief of possession to defendants No. 2 and 3 i.e. Om Dutt and Yag Dutt or LRs of Yag Dutt or allowed them to retain possession of suit property. It is contended that even it is assumed though not admitted that defendant No. 1 was adopted daughter of Late Jeet Singh, even then, defendants No. 2 and 3 are not entitled to possession of suit property in any manner as they are not LRs of Smt. Mohinder Kaur and as per Section 15 (2) (a) of Hindu Succession Act and suit property would devolve upon LRs of Late Jeet Singh who are none other than appellants and defendants No. 11 to 16 in present case.
56. Appellants relied upon judgment in case titled as "Radhika (Smt.) Vs. Aghnu Ram Mehto (1994) 5 SCC 761" wherein Hon'ble Supreme Court of India held that "A reading thereof clearly indicates that for RCA No. 14/24 Page No. 51 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors the property inherited by a female Hindu from her father or mother, in other words female's paternal side, in the absence of her son, daughter or children of the pre-deceased son or daughter, the succession opens to the heirs of the father or mother and not to class-I heirs in the order specified in sub-section (1) of Section 15 and in the order of Section 16. In other words, the children and the children of the pre-deceased son or daughter of the Hindu female alone are entitled to get such property. Thus, husband's stands excluded from the succession to the property inherited by female Hindu from her father's side."
57. Appellants further replied upon judgment in case titled as "V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by LRs and Others (2003) 6 SCC 633" wherein Hon'ble Supreme Court of India held that "Sub-Section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre-
deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15 (2)
(a)."
58. I find force in contentions raised by appellants in view of clear law as relied upon by appellants though I am of the view that it has not been RCA No. 14/24 Page No. 52 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors proved on record that deceased defendant No. 1 was adopted daughter of Late Jeet Singh but even for sake of arguments if it is presumed that Late Smt. Mohinder Kaur was adopted daughter of Late Jeet Singh, in absence of any issue or Will on her part dealing with suit property being proved on record, after death of Smt. Mohinder Kaur, suit property will revert to LRs of Late Jeet Singh which in facts of present case are appellants and defendants No. 11 to 16 as they are admittedly sons and daughters of brother and sister of Late Jeet Singh.
59. Appellants further contended that Ld. Trial Court in impugned judgment has wrongly applied ratio in judgment in case titled as "Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma & Ors. Civil Appeal No. 878/2009 decided on 04.01.2023".
60. I find force in contention raised by appellants as in view of my above-made discussion, I am of the view that appellants have been able to prove better legal right in form of ownership or entitlement to possession and Ld. Trial Court did not apply properly ratio of this judgment in facts and circumstances of present case. Merely because, plaintiffs did not prove succession certificate obtained by their predecessor in interest qua movable property of Late Jeet Singh would not dis-entitle plaintiffs/appellants from claiming possession to suit property and title over suit property in view of their relationship with Late Jeet Singh, they being Class-II heirs of Late Jeet Singh.
RCA No. 14/24 Page No. 53 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
61. Appellants have contended that Ld. Trial Court wrongly held that as plaintiffs have failed to seek declaration to get succession certificate dated 23.07.1974 in favour of Smt. Mohinder Kaur as null and void, appellants are not entitled to reliefs sought for by appellants.
62. Perusal of succession certificate in Suit No. 558/73 in favour of Smt. Mohinder Kaur qua share No. 280 of E.P. Railway Refugee Rehabilitation and House Building Co-operative Society Ltd. clearly shows that the same was qua share No. 280 only which merely empowered Smt. Mohinder Kaur to collect debts and securities lying with the said society. The said succession certificate in no way conferred any title nor can be understood to have granted inheritance of an immovable property in favour of Smt. Mohinder Kaur. Further, succession certificate as is well-known is qua movables only and does not confer any title in an immovable property.
63. Appellants have relied upon judgment in case titled as "Joginder Pal Vs. Indian Red Cross Society And Others (2000) 8 SCC 143" wherein Hon'ble Supreme Court of India held that "Section 373, 383(e) and 387 of the Succession Act 1925 make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under part X upon any question of rights between the parties shall be held to bar RCA No. 14/24 Page No. 54 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors the trial of the same question in any suit or any other proceedings between the same parties. Thus, S. 387 permits the filing of a suit or other proceedings even though a succession certificate might have been granted."
64. In view of law as cited by appellants, I am of the view that process of executing lease deed dated 05.03.1975 qua suit property on strength of a succession certificate was not in accordance with law and Ld. Trial Court was wrong in holding that the said succession certificate empowered Smt. Mohinder Kaur to become owner of suit property.
65. In view of my above made discussion, I am of the view that issues No. 6 and 7 have been wrongly decided by Ld. Trial Court and finding of Ld. Trial Court is therefore reversed and issues are decided in favour of appellants and against respondents No. 3 (a) to (c).
66. Respondent No. 3(a) on the other hand has contended that plaintiff/appellant Sukh Charan Singh is not Class-I legal heir of Late Jeet Singh who passed away on 16.12.1969. After death of Late Jeet Singh, his wife Smt. Rajender Kaur was alive and as such plaintiff did not have any right to claim property belonging to Jeet Singh. It was only Smt. Rajender Kaur who could have challenged transfer of suit property in name of Smt. Mohinder Kaur (adopted daughter) but Smt. Rajender Kaur never filed any suit after claim made by her was rejected by society.
67. Respondent No. 3(a) relied upon judgment in case titled as "Nitu Vs. Sheela Rani & Ors. Civil Appeal No. 9823/2016" wherein RCA No. 14/24 Page No. 55 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Hon'ble Supreme Court of India held that "So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in Class-I of the Schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of Late Shri Yash Pal are concerned, they would be divided among the respondent mother and appellant wife, provided there is no other family member of Late Shri Yash Pal alive, who would fall within Class-I heirs, but position in this case, with regard to pension is different."
68. Respondent No. 3(a) further contended that appellants do not have any locus to claim suit property as legal heirs of Smt. Rajender Kaur and on behalf of defendants No. 7 to 10 as no registered document has been executed in favour of appellants.
69. Respondent No. 3(a) has further relied on judgment in case titled as "Shakeel Ahmed Vs. Syed Akhlaq Hussain 2023 SCC OnLine SC 1526" wherein Hon'ble Supreme Court of India held that no title is conferred on basis of unregistered documents with respect to immovable property.
70. As already held that defendants have failed to prove on record that Smt. Mohinder Kaur was adopted daughter of Late Jeet Singh and it is an admitted position between parties that both Late Jeet Singh and his wife Smt. Rajender Kaur died intestate. No Will of Late Smt. Rajender Kaur has RCA No. 14/24 Page No. 56 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors been proved on record by any of the parties. In absence of any issue or Will of deceased Late Jeet Singh and Late Smt. Rajender Kaur being proved on record, in these circumstances, I am of the view that Late Jeet Singh after death of Smt. Rajender Kaur was not survived by any Class-I heir as per schedule appended to Hindu Succession Act. After death of Smt. Rajender Kaur, Class-II heirs of Late Jeet Singh come to occupy space as LRs of Late Jeet Singh who in present case are plaintiffs/appellants being sons and daughters of brother and sister of Late Jeet Singh. It cannot be said that appellants did not have any locus to file present suit as appellants are Class-II heirs of Late Jeet Singh and no Class-I heir of Late Jeet Singh survived entitling to retain possession and title qua suit property. Hence, this contention of respondent No. 3(a) stands rejected.
71. Respondent No. 3(a) further contended that admittedly Smt. Rajender Kaur was wife of Late Jeet Singh and she executed a Will in favour of defendants No. 7 to 10. Smt. Rajender Kaur made claim on 20.03.1970 vide Ex.DW-2/1 but did not succeed before society but still she did not challenge transfer made by society in favour of defendant No. 1 during her life-time and that she died in September 1970. Defendants No. 7 to 10 stepped into shoes of wife of Late Jeet Singh and filed Suit No. 56/1977 titled as "Sukhcharan Singh & Ors. Vs. DDA & Ors." which was dismissed on merits by Ld. Trial Court on 23.07.1978 and was rejected on account of being not maintainable by Ld. Appellate Court while maintaining judgment of RCA No. 14/24 Page No. 57 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Ld. Trial Court vide judgment dated 28.02.1980. Defendants No. 7 to 10 did not challenge the order passed by Ld. Appellate Court and accepted the said decision and judgment and second suit could not have been filed on same cause of action.
72. Claim allegedly made by Smt. Rajender Kaur was rejected by E.P. Railway Refugee Rehabilitation and House Building Co-operative Society Ltd. whereafter, she did not file any suit to claim suit property does not defeat rights of appellants to challenge execution of lease deed of suit property in favour of Smt. Mohinder Kaur after they came to know of the same. Respondent No. 3(a) has failed to prove on record that appellants were aware of rejection of claim of Smt. Rajender Kaur by E.P. Railway Refugee Rehabilitation and House Building Co-operative Society Ltd. and till Smt. Rajender Kaur was alive, appellants did not have any right in the suit property, Smt. Rajender Kaur being Class-I legal heir of Late Jeet Singh and appellants being Class-II heirs of Late Jeet Singh.
73. So far as filing of suit bearing No. 56/1977 filed jointly by appellants/predecessor in interest of appellants and defendants No. 7 to 10 and its dismissal by Ld. Trial Court and its rejection by Ld. Appellate Court is concerned, perusal of judgment of Court of Sh. B. B. Gupta, then Ld. ADJ, Delhi in RCA No. 68/78 as available on TCR shows that Ld. ADJ no doubt held that judgment of Ld. Trial Court is maintained but specifically held that it was not on the ground relied upon by Ld. Trial Court but rather on the RCA No. 14/24 Page No. 58 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors ground that the suit is not maintainable and instead of dismissing the suit, the plaint is hereby rejected. Judgment in RCA No. 68/78 clearly shows that Ld. ADJ did not dismiss suit filed by predecessor in interest of appellants and defendants No. 7 to 10 but rejected plaint filed by them and filing of fresh suit is permissible under Order VII Rule 13 CPC in such circumstances. Counsel for respondent No. 3(a) during course of arguments submitted that as judgment was delivered by Ld. Trial Court in Suit No. 56/1977 on merits, mere rejection of plaint in appeal in RCA No. 68/78 would not change its character particularly when judgment of Trial Court was maintained by Ld. Appellate Court.
74. Counsel for respondent No. 3 (a) relied upon judgment in case titled as "Frost International Limited Vs. Milan Developers and Builders Private Limited and Another (2022) 8 SCC 633" wherein Hon'ble Supreme Court of India held that "The proviso to Section 34 states that no court can make any declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so. The said question will have to be considered at the time of final adjudication of the suit as the question of granting further relief or consequential relief would arise only if the court grants a declaration. If the plaintiff is unsuccessful in seeking the main relief of declaration, then, the question of granting any further relief would not arise at all. Therefore, omission on the part of the plaintiff in RCA No. 14/24 Page No. 59 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors praying for further consequential relief, would become relevant only at the time of final adjudication of the suit. Hence, in view of above, the plaint cannot be rejected at this stage by holding that the plaintiff has only sought declaratory reliefs and no further consequential reliefs."
75. Perusal of judgment in Suit No. 56/1977 as available on TCR shows that issue regarding rejection of plaint has been framed as issue No.1 in the same but Ld. Trial Court did not proceed to discuss this issue on the premise that as suit has proceeded its full length. Ld. Trial Court in the said judgment dismissed suit filed by appellants / predecessor of appellants and defendants No. 7 to 10 on the premise that succession certificate in favour of Smt. Mohinder Kaur was issued earlier and subsequent succession certificate is therefore invalid. Though the said judgment is not in question before this court but one thing is required to be clarified that succession certificate is issued qua movables only and it cannot replace law of inheritance applicable to parties to a suit.
76. Court of Sh. B. B. Gupta, the then Ld. ADJ in RCA No. 68/1978 challenging judgment in Suit No. 56/1977 clearly held that relief of possession which is also an efficacious relief is available to the plaintiff and as such, declaration and injunction cannot be granted to the plaintiff without claiming possession of property. It further observed that it being so, the only option to the court is to reject the plaint. Accordingly, judgment of Ld. Trial Court is maintained but not on the ground relied upon by Ld. Trial Court RCA No. 14/24 Page No. 60 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors rather on the ground that suit is not maintainable and instead of dismissing the suit, plaint is hereby rejected.
77. Judgment in RCA No. 68/1978 is in consonance with law laid down by Hon'ble Supreme Court of India in case titled as Frost International Limited (Supra) and appellate court in previous suit filed by appellants / predecessor in interest of appellants and defendants No. 7 to 10 after conclusion of trial was of the opinion that simplicitor suit for declaration and injunction was not maintainable without claiming relief of possession. Hence, judgment relied upon by respondent No. 3 (a) rather goes against respondent No. 3 (a). Finding of Ld. Appellate court becomes further pertinent in view of the fact that issue regarding rejection of plaint was framed in the main suit wherein no discussion was made by Ld. Trial Court while deciding the issue as discussed above and grounds of decision of Ld. Trial Court were not agreed to by Ld. Appellate court on merits. I am of the view that Ld. Appellate Court in clear terms rejected plaint filed by plaintiffs/appellants and no second meaning can be assigned to the same and appellants had remedy to file fresh suit under Order VII Rule 13 CPC which they availed by filing suit before Ld. Trial Court.
78. Appellants relied upon judgment in case titled as "Inspiration Clothes & U Vs Colby International Ltd. (2000) 88 DLT 769", wherein Hon'ble High Court of Delhi held that " Learned Single Judge instead of proceeding to reject the plaint dismissed the suit, which approach is also RCA No. 14/24 Page No. 61 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors erroneous. The effect of dismissal of suit is altogether different and distinct from the effect of rejection of the plaint. In case plaint is rejected under Order 7 Rule 11 CPC filing of a fresh plaint in respect of the same cause of action is specifically permitted under Rule 13 of Order 7 C.P.C. Altogether different consequence follows in the event of dismissal of suit, which has the effect of precluding the plaintiff to file a fresh suit on the same cause of action. Rejection of plaint takes away the very basis of the suit rendering as if there was no suit at all or that no suit was instituted. Order of dismissal of suit while recognizing the existence of a suit indicates its termination. While deciding the application under order 7 Rule 11 CPC Learned Single Judge ought not and could not have dismissed the suit."
79. In view of law cited above, thus filing of fresh suit before Ld. Trial Court was very much permissible under Order 7 Rule 13 CPC.
80. Respondent No. 3 (a) contended that first suit was also barred by limitation as admittedly cause of action in favour of Smt. Rajender Kaur arose in March-1970 and she died in September-1973. Smt. Rajender Kaur made claim in 1970 but did not succeed before society and she did not challenge transfer made by society in favour of defendant No. 1. Respondent No. 3 (a) further contended that even otherwise, present suit filed by appellants is time barred as admittedly original plaintiff Mr. Sukhcharan Singh earlier filed suit bearing No. 56/1977 titled as RCA No. 14/24 Page No. 62 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Sukhcharan Singh and Others Vs. DDA and Others seeking declaration that plaintiffs alone were only legal heirs of Late Jeet Singh and were entitled to suit property seeking mandatory injunction against DDA and Smt. Mohinder Kaur for cancellation of order of allocation in favour of Smt. Mohinder Kaur which suit was dismissed after trial by court of Sh. R. N. Jindal, Ld. Sub Judge, First Class, Delhi on 23.09.1978 against which appeal bearing RCA No. 68/1978 was dismissed vide judgment dated 28.02.1980 and it was after this that present suit was filed by appellants which otherwise is barred under principles of res-judicata.
81. Respondent No. 3 (a) further contended that even otherwise cause of action for filling present suit as per plaintiff firstly arose on 24.09.1974 and on 05.03.1975 when lease deed was executed by DDA in favour of defendant No. 1 and again on 20.11.1975 when defendant No.4 pointed out that suit property has already been transferred in name of defendant No. 1. Suit claiming appropriate reliefs could have been filed within three years of execution of document i.e. lease deed in favour of deceased defendant No. 1 i.e. on 05.03.1975 which admittedly has not been done as present suit was only filed on 16.02.1981 and as such, present suit is barred by limitation. Respondent No. 3 (a) further contended that even benefit of Section 14 of Limitation Act cannot be claimed by appellants as firstly no application U/sec 14 was moved before Ld. Trial Court and secondly, suit was not dismissed / rejected on the ground that court is RCA No. 14/24 Page No. 63 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors having no jurisdiction or any other cause of like nature and in fact, matter was decided after trial on merits. Plaintiffs did not file any appeal against judgment of Ld. Appellate court in RCA No. 68/1978 and accepted an erroneous judgment and appellants cannot be allowed to take advantage of erroneous judgment.
82. Respondent No. 3 (a) relied upon judgment of Hon'ble Supreme Court of India in case titled as "Gurdit Singh and Others Vs. Munsha Singh and Others (1977) 1 SCC 791" wherein it was held that "Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important. Their scope has to be determined according to the rule of ejusdem generis. According to that rule they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit."
83. Respondent No. 3 (a) further relied upon judgment in case titled as "U. P. Jal Vidyut Nigam Ltd Vs. C. G. Power & Industrial Solution Ltd. 2023 SCC Online Del. 7916" wherein Hon'ble High Court of Delhi discussed law laid down by Hon'ble Supreme Court of India in Consolidated Engineering Case qua applicability of Section 14 of Limitation Act as below:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;RCA No. 14/24 Page No. 64 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue;
(5) Both the proceedings are in a court .....
Hon'ble High Court of Delhi in this case further elaborated on definition of good faith which as per Section 2 (h) of Limitation Act is that unless the context otherwise requires, nothing shall be deemed to be done in good faith which is not done with due care and attention."
84. Respondent No. 3 (a) further referred to judgment in case titled as "Deena (Dead) Through LRs Vs. Bharat Singh (Dead) Through LRs and Others (2002) 6 SCC 336" wherein in Hon'ble Supreme Court held that "The main factor which would influence the court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period.
The expression "good faith" as used in Section 14 means "exercise of due care and attention". In the context of Section 14 the expression of "good RCA No. 14/24 Page No. 65 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors faith" qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact."
85. As per stand taken by appellants in plaint filed before Ld. Trial Court, real cause of action accrued on 20.11.1975, when defendant No.4 pointed out that suit property has already been transferred in name of Smt. Mohinder Kaur which fact has been admitted by DDA in its written statement. Letter written in this regard has been filed by appellants on record. It is not disputed that appellants/ predecessor in interest of appellants and defendants No. 7 to 10 filed Suit No. 56/1977 on 24.03.1977 meaning thereby that appellants filed suit after 01 year 04 months and 3 days from date of accrual of cause of action in favour of appellants. The said suit was dismissed on 23.09.1978. Appeal filed against judgment vide RCA No. 68/1978 was decided on 28.02.1980. Fresh suit was filed by appellants on 28.05.1981 i.e. after 01 year and 03 months of decision of the said appeal. Thus total time taken by appellants to file suit before Ld. Trial Court was 02 years 07 months and 03 days ( 01 year 04 months 03 days plus 01 year 03 months). Appellants have sought exclusion of time in pursuing Suit No. 56/1977 and RCA No. 68/1978 i.e. period from 24.03.1977 till 28.02.1980 under Section 14 of Limitation Act. To contention of respondent No. 3 (a) that no application under Section 14 of Limitation Act was filed by appellants with suit filed before Ld. Trial Court, it was pointed on behalf of RCA No. 14/24 Page No. 66 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors appellants that appellants mentioned factum of filing earlier suit as well as appeal in pleadings of plaint filed by them before Ld. Trial Court and it cannot be said that Ld. Trial Court at the time of issuance of summons of the suit was not aware of limitation aspect of present matter which fact is true when plaint is perused.
86. Respondent No. 3 (a) has contended that cause of action in favour of Smt. Rajender Kaur arose in March-1970 but that she did not challenge transfer of suit property in favour of Smt. Mohinder Kaur and died in September-1973 without challenging decision of E. P. R. Society.
87. Appellants to this contention of respondent No. 3 (a) submitted that as per written statement of defendant No. 6, letter dated 23.01.1970 was received from Smt. Rajender Kaur and society had simply asked her to submit death certificate of Late Jeet Singh which was received by them towards end of March-1970 and in the meanwhile, an application dated 24.03.1970 was received from Smt. Mohinder Kaur that she was nominee of Late Jeet Singh qua suit property and suit property should be transferred in her name which application was forwarded to DDA on 06.05.1970. DDA vide letter dated 25.02.1975 informed the society that name of Smt. Mohinder Kaur was substituted in place of Late Jeet Singh. Appellants contented that Smt. Rajender Kaur expired before she could be communicated decision of DDA in this regard and it can be said that no cause of action accrued during lifetime of Smt. Rajender Kaur.
RCA No. 14/24 Page No. 67 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors
88. DDA intimating defendant No. 6 society vide letter dated 25.02.1975 regarding substitution of name of Smt. Mohinder Kaur in place of Late Jeet Singh and Smt. Rajender Kaur having expired in year 1973, it cannot be said that any cause of action accrued during life-time of Smt. Rajender Kaur in her favour and cause of action arose after DDA intimated this fact to defendant No. 6 society vide letter dated 25.02.1975 and which fact admittedly came into knowledge of appellants for the first time on 20.11.1975 and it cannot be said that suit filed by appellants is beyond period of limitation in view of my earlier discussion made.
89. So far as extension of benefit of Section 14 of Limitation Act to appellants is concerned, respondent No. 3 (a) has contended that benefit can be extended only in case of ground of defects of jurisdiction or other causes of like nature and in this case, no ground is made out to extend benefit of Section 14 of Limitation Act to appellants as pursuance of litigation by appellants cannot be said to be ground of defect of jurisdiction or other cause of like nature as earlier court was having jurisdiction to try earlier suit filed by appellants.
90. Appellants for this contention of respondent No. 3 (a) relied upon judgment of Hon'ble Supreme Court of India in case titled as "Union of India & Ors Vs. Westcoast Papermills Ltd. & Ors (2004) 3 SCC 458"
wherein Hon'ble Supreme Court of India held that "Section 14 of the Limitation Act is wide enough to cover all cases where defects are not RCA No. 14/24 Page No. 68 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors merely jurisdictional strictly. Any circumstance, legal or factual, which inhibits entertainment of a dispute on merits by the court, falls within the scope of this section and must be liberally construed."
91. Appellants further relied on judgment in case titled as "National Seeds Corporation Ltd. and Anr. Vs. Ram Avtar Gupta OMP (Comm.) No. 79/2022 decided on 25.08.2023" wherein Hon'ble High Court of Delhi discussed judgment of Hon'ble Supreme Court of India wherein Hon'ble Supreme Court of India observed that so long as proceeding is filed within the remaining three months period, Section 14 of the 1963 Act will apply to exclude the entire time taken starting from 91st day till the final appeal is ultimately dismissed and further observed that the expression 'the time' during which the plaintiff has been prosecuting with due diligence another civil proceeding' needs to be construed in a manner which advances the object sought to be achieved i.e. cause of justice.
92. In view of judgments relied upon by appellants and in view of plain reading of Section 14 of Limitation Act, I am of the view that it cannot be said that appellants were not prosecuting earlier suit filed by them bearing Suit No. 56/1977 and appeal bearing No. 68/1978 qua suit property against respondents with due diligence particularly when in appeal, ultimately, plaint filed by appellants was ordered to be rejected which otherwise entitle appellants to file fresh suit on same cause of action U/o 7 Rule 13 CPC. Hence, contentions of respondent No. 3 (a) in this regard are RCA No. 14/24 Page No. 69 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors without merits and therefore rejected.
93. Respondent No. 3 (a) has contended that appellants in suit filed took the stand that Smt. Mohinder Kaur was not owner of suit property and as such, conveyance deed executed by DDA in favour of Smt. Mohinder Kaur be declared as null and void. Respondent No. 3 (a) contended that appellants, defendant No. 10, 11 (A), 12 a to c and 13 filed an application U/o 23 Rule 3 CPC before Ld. Trial Court wherein it was stated that plaintiffs and defendants entered into a settlement dated 06.11.2020 wherein they admitted Smt. Mohinder Kaur to be owner of suit property and filed affidavits in support thereof. The said application was dismissed by Ld. Trial Court vide order dated 04.10.2021. Hence, plaintiffs have taken stand admitting defence of Smt. Mohinder Kaur that she was owner of suit property and admissions so made are binding on plaintiffs.
94. Respondent No. 3 (a) relied upon judgment in case titled as "Bhupinder Singh Vs. M/s Hill Elliott & Co. Ltd. I. A. No. 9073 /2010 in CS (OS) No. 2400/2008" wherein Hon'ble High Court of Delhi held that "There is nothing in law which prevents a party to a litigation admitting to the other party's case; that is exactly what happened with plaintiff."
95. Respondent No. 3 (a) further relied on judgment in case titled as "Basant Singh Vs. Janki Singh and Others 1966 SCC Online SC 234"
wherein Hon'ble Supreme Court of India held that "Section 17 of the Indian RCA No. 14/24 Page No. 70 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admission. Under the Indian Law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.".
96. Appellants to this contention of respondent No. 3 (a) contended that this argument of respondent is contrary to established law that there is no estoppel against a statute. Appellants contented that it is well settled that an agreement / settlement / contract or any act of individuals or private parties, which is contrary to provisions of any existing law, if made, are not binding on them and court cannot rely on such agreements or adjudicate upon them in any manner. Appellants referred to Section 23 of Indian Contract Act in this regard and referred to judgment of Nutan Kumar and Others Vs. IInd Additional District Judge, Banda and Ors AIR 1994 All. 298. They further submitted that as such, Ld. Trial Court dismissed the said application and did not take any cognizance of agreement dated 06.11.2020. They submitted that adoption if any to be made by a Hindu has to be made strictly in accordance with provisions of Hindu Adoptions and Maintenance Act. They submitted that any agreement or admission made by an individual which is contrary to law cannot be looked into.
97. Appellants relied upon judgment in case titled as "Aishani RCA No. 14/24 Page No. 71 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Chandra Mehra Vs. Rajesh Chandra Mehra & Ors 2019 SCC Online Del.
6718" wherein Hon'ble High Court of Delhi observed that though it was admitted by plaintiff that she had been adopted vide a registered adoption deed by one Sunil Mehra, however, since the said Sunil Mehra had a biological daughter, the said adoption was null and void abinitio being contrary to provisions of Section 11 of Hindu Adoptions and Maintenance Act. Hon'ble High Court held that "Once the statute declares an adoption made in contravention of the provisions therein to be void, the purported act of adoption, even if by way of a registered document cannot validate the same.".
98. Appellants further referred to judgment in case titled as 'Mr. Anand J. Datwani Vs. Ms. Geeti Bhagat Datwani & Ors. CS(OS) No. 758/2008 decided on 30.04.2013' wherein Hon'ble High Court of Delhi held that even if an admission is made, such admission cannot override a law and there can be no estoppel against law or statute.
99. Section 23 of Indian Contract Act provides that "consideration or object of an agreement is lawful, unless-
it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or RCA No. 14/24 Page No. 72 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
100. With regard to admission being made by appellants and rest of respondents in agreement dated 06.11.2020 to be of binding nature or lawful, agreement dated 06.11.2020 has to pass through parameters of Section 23 of Indian Contract Act. As per evidence of DW-3 Yag Dutt as discussed earlier, adoption of Smt. Mohinder Kaur took place 70 years ago. Statement of DW-3 was recorded on 29.09.2005 meaning thereby that Smt. Mohinder Kaur was adopted prior to enactment of Hindu Adoptions and Maintenance Act, 1956. It is well-settled that daughters could not be adopted before passing of Hindu Adoptions and Maintenance Act as discussed earlier. Therefore, any admission made in agreement dated 06.11.2020 being not in accordance with law cannot bound the parties. Otherwise also, if adoption of Smt. Mohinder Kaur is considered after passing of Hindu Adoptions and Maintenance Act, 1956, the same has not been proved on record to have taken place as per Section 6 to 11 of the said Act and hence, agreement dated 06.11.2020 again cannot be said to be of a binding nature amounting to admission as if permitted to stand, it will RCA No. 14/24 Page No. 73 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors defeat provisions of Hindu Adoptions and Maintenance Act, 1956 and thus, is void agreement in terms of Section 23 of Indian Contract Act. Hence, this contention of respondent No. 3(a) is without merits and rejected.
101. Respondent No. 3(a) has contended that power of attorney holder cannot depose on behalf of plaintiffs/appellants. Judgment in case titled as 'Manisha Mahindra Gala And Others Vs. Shalini Bhagwan Avatramani And Others (2024) 6 SCC 130' was relied upon by respondent No. 3 in this regard. It was held by Hon'ble Supreme Court of India in this case that 'power of attorney holder can depose and verify on oath before Court but he must have witnessed transaction as an agent and must have due knowledge about it. Power of attorney holder who has no knowledge regarding transaction cannot be examined as a witness. Functions of general power of attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in power of attorney.'
102. Mr. Kulwant Singh Sethi who is brother of deceased plaintiff appeared in the witness box as PW-1 as his power of attorney holder. PW-1 deposed that Late Jeet Singh was his maternal uncle and was living with his mother who was his sister. PW-1 being brother of deceased plaintiff appear to be in personal knowledge of facts of the case. He in his cross- examination stated that he has personal knowledge of the fact that Late Jeet RCA No. 14/24 Page No. 74 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Singh never adopted defendant No. 1 since she was natural daughter of his elder Mama Mr. Tehal Singh. He further stated that he has stated in his affidavit that Late Jeet Singh never adopted defendant No. 1 as there has been no document of the adoption in that respect. From evidence affidavit of PW-1 and what has been stated by PW-1 in his cross-examination, it is clear that facts of the case were within personal knowledge PW-1 and hence, judgment relied upon by respondent No. 3(a) is not applicable in facts and circumstances of present case. In 'A.C. Naraynan Vs. State of Maharashtra (2014) 11 SCC 790', Hon'ble Supreme Court of India held that 'if the facts are in personal knowledge of the POA holder then the power of attorney holder can verify on oath before the Court as an agent and must have due knowledge about it.' In these circumstances, I am of the view that this contention of respondent No. 3(a) is without merits and hence rejected.
103. Respondent No. 3(a) further contended that present appeal is not maintainable as LRs of deceased defendant No. 1's husband Late Harbans Singh Gulati were not substituted and hence, suit stands abated. It is contended that initial suit was filed against Late Smt. Mohinder Kaur as defendant No. 1 seeking declaration. Smt. Mohinder Kaur died on 03.09.1991 whereafter plaintiff moved an application under Order XXII Rule 4 CPC for substituting her husband Mr. Harbans Singh Gulati. Mr. Harbans Singh Gulati along with defendants No. 2 and 3 filed reply wherein they mentioned that Smt. Mohinder Kaur executed her last Will dated 20.08.1987 RCA No. 14/24 Page No. 75 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors in favour of defendants No. 2 and 3 and one Mr. Surender. Hon'ble High Court of Delhi vide order substituted Mr. Harbans Singh Gulati in place of Smt. Mohinder Kaur and plaintiff did not take any steps to substitute defendants No. 2 and 3 and Mr. Surender. Mr. Harbans Singh Gulati died on 19.01.2008 and thereafter, plaintiff did not take any steps to substitute his LRs and thus, suit stood abated. Respondent No. 3(a) submitted that this being a legal issue, question of abatement can be raised at any stage as has been held in case titled as 'Sh. Surinder Chopra & Ors. Vs. Prem Wati (Since Deceased through LRs) & Ors. 2011: DHC: 1597' and in case titled as 'Gurnam Singh (D) Thr. LRs & Ors. Vs. Gurbachan Kaur (D) by LRs & Ors. (2017) 13 SCC 414'.
104. Hon'ble High Court of Delhi after considering joint reply filed by defendants No. 2 and 3 and Mr. Harbans Singh to application of plaintiff/appellants under Order XXII Rule 4 CPC allowed application of appellants vide order dated 15.11.1994 and directed plaintiffs to file amended memo of parties. Defendants No. 2 and 3 in their reply to the application under Order XXII Rule 4 CPC averred that it is not correct that Harbans Singh Gulati is the heir of the deceased. They further averred that Smt. Mohinder Kaur made Will dated 20.08.1987 in favour of defendants No. 2, 3 and one Surinder Kumar and accordingly, they are entitled to entire suit property. No Will of Smt. Mohinder Kaur was filed and proved by defendants on record and Hon'ble High Court after taking into consideration RCA No. 14/24 Page No. 76 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors contentions of defendants No. 2 and 3 concluded that Late Harbans Singh Gulati only be substituted as LR of Late Smt. Mohinder Kaur. It was not upon plaintiffs to get substituted defendants No. 2 and 3 as LRs of Late Smt. Mohinder Kaur as the said contention was rejected vide order dated 15.11.1994 and defendants did not challenge the said order and can be said to have conceded to fact of Late Harbans Singh Gulati being substituted as LR of Smt. Mohinder Kaur. In absence of any challenge to order dated 15.11.1994, it cannot now be agitated by respondent No. 3(a). Even the sole private witness examined by defendants DW-3 Yag Dutt does not say anything regarding Will of Late Smt. Mohinder Kaur. Even defendants No. 2 and 3 did not try to get impleaded the said Surinder as party to suit before Ld. Trial Court. Had there been any Will of Late Smt. Mohinder Kaur, defendants No. 2 and 3 should not have allowed Mr. Harbans Singh Gulati to be substituted as LR of Smt. Mohinder Kaur and should have produced the said Will or should have challenged order dated 15.11.1994. After order dated 15.11.1994 became final on account of no challenge, respondent No. 3(a) now cannot raise any argument contrary to the same. Otherwise also, suit filed by appellants cannot be said to have been abated on demise of Mr. Harbans Singh Gulati as the same was not filed only against Smt. Mohinder Kaur but also against other defendants which included DDA and E.P.R. Society and cause of action mainly arose due to acts of E.P.R. Society and DDA and suit therefore survived for the reliefs sought by appellants RCA No. 14/24 Page No. 77 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors including relief of possession qua suit property. Judgments thus relied upon by respondent No. 3(a) are not applicable in facts and circumstances of present case. Hence, this contention of respondent No. 3(a) stands rejected being without merits.
105. Respondent No. 3(a) has contended that appellants did not value suit for the purpose of court-fees and jurisdiction properly. Perusal of plaint filed by appellants show that appellants have valued suit for the purpose of jurisdiction and court-fees qua relief of possession and cancellation of lease deed to be Rs.1,00,000/- whereas defendants No. 1 to 3 in their joint written statement have mentioned value of suit property to be Rs.6,00,000/-. Defendants have not led any evidence to substantiate their claim nor DW-3 Yag Dutt appearing for defendants No. 1 to 3 has deposed anything to the said effect in his evidence affidavit. In these circumstances, no fault could be found with regard to finding of Ld. Trial Court in this regard. Contention of respondent No. 3(a) is therefore dismissed.
106. Respondent No. 3(a) has contended that suit filed by appellants is bad for misjoinder of parties. Onus to prove this contention/issue was upon contesting defendants. Defendants except for making bald assertion in this regard have not led any evidence to substantiate their claim in this regard. DW-3 Yag Dutt appearing for contesting defendants also did not lead any evidence in this regard. Hence, no fault can be found qua finding of Ld. Trial Court in this regard. This contention of respondent No. 3(a) is also RCA No. 14/24 Page No. 78 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors rejected being without merits.
107. Respondent No. 3(a) has contended that Ld. Trial Court has failed to consider that no notice under Section 80 CPC, Section 90 of Co- operative Society Act and Sections 53A and 53B of DDA Act was given by appellants to Govt. authorities and hence, suit filed by appellants was not maintainable.
108. Appellants to this contention of respondent No. 3(a) have relied upon judgment in case titled as 'Khosla Medical Institute Vs. Delhi Development Authority & Anr. RFA 11/2012 decided on 01.12.2022' wherein Hon'ble High Court of Delhi discussed ratio in judgment in case titled as 'I.P. Power Generation Company Ltd. Vs. Siddhartha Extension Resident Welfare Association & Ors. 2013 SCC OnLine Del 4956' wherein Hon'ble High Court of Delhi held that 'I am afraid, the judgment in DCM Ltd. cited by the counsel for respondent/defendant No. 1 has been over-ruled in DCM Ltd. Vs. DDA MANU/DE/0728/2009 (DB). The other judgments cited by the counsel for the appellant/plaintiff hold that the right under the said provision is capable of being waived or that the suit cannot be dismissed on such technical ground after it has been contested and that notice under Section 53B is not required when there is earlier litigation between the parties.'
109. Hon'ble High Court of Delhi in this case further laid down 'Firstly, RCA No. 14/24 Page No. 79 of 82 Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors the Trial Court failed to appreciate the intention of the legislature and the spirit of the provision under Section 53B of the DD Act as well as the interpretation attached to the provision by the various benches of this Court, according to which once the suit has been instituted, reached the Court of law, argued on merits comprehensively for over a decade then the notice under Section 53B of the DD Act is rendered insignificant and irrelevant.
The dismissal of the suit on this ground was unfounded and erroneous.'
110. In the facts and circumstances of present case when there was earlier litigation between parties and suit has remained pending before Ld. Trial Court for more than 04 decades, issue of non-service of notice under Section 53B of DD Act or for that matter under Section 80 CPC and under Section 90 of Co-operative Societies Act which are similar provisions become redundant in view of law as discussed above. Further, relief of interim injunction during pendency of suit before Ld. Trial Court was also sought by appellants and giving of notices as mentioned above would have frustrated purpose of filing interim application. Hence, in these circumstances, non-service of statutory notice on Govt. authorities before institution of suit before Ld. Trial Court is of no consequence and contentions raised by respondent No. 3(a) in this regard is dismissed being without merits.
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111. In view of my above-made discussion, appeal filed by appellants is allowed and cross-objections filed by respondent No. 3(a) are dismissed. Impugned judgment passed by Ld. Trial Court so far as issues No. 6 and 7 are concerned is set-aside. Appellants are entitled to reliefs sought in the plaint. It is clarified that defendants No. 7 to 10 are not entitled to any relief as Will of Smt. Rajender Kaur has not been proved on record. Decree of declaration qua suit property is passed in favour of appellants/plaintiffs and defendants No. 11 to 16 declaring that lease deed dated 05.03.1975 qua suit property executed favouring deceased defendant No. 1 by defendant No. 4 is illegal, ultra vires and bad in law and cannot be enforced in any manner and does not confer any lease hold rights on deceased defendant No. 1. Decree of mandatory injunction is passed thereby directing defendant No. 4 to execute proper and requisite lease deed and further conveyance deed qua suit property in favour of appellants and defendants No. 11 to 16 in accordance with law. Decree of possession is also passed qua suit property in favour of appellants and defendants No. 11 to 16 and against respondents No. 3(a) to (c) directing respondents No. 3(a) to (c) to deliver actual physical possession of suit property to appellants and defendants No. 11 to 16. Respondents No. 3(a) to (c) are permanently restrained to make any construction/further construction over suit property or otherwise enter upon any contract or transfer title or in any manner transfer possession of suit property to anyone except to appellants and defendants No. 11 to 16.
RCA No. 14/24 Page No. 81 of 82Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors Decree of mandatory injunction is also passed in favour of appellants and defendants No. 11 to 16 and against respondents No. 3(a) to (c) thereby directing respondents No. 3(a) to (c) to demolish and remove all sort of construction whatever has been raised over suit property. Costs of suit are granted in favour of appellants and against respondents No. 3(a) to (c).
112. Ahlmad is directed to send copy of this judgment to Ld. Trial Court along with Trial Court record.
Decree-sheet be prepared accordingly.
Appeal file be consigned to Record Room.
Digitally signed by SONU SONU AGNIHOTRI
AGNIHOTRI Date: 2024.11.14
18:11:04 +0530
Announced in open Court (SONU AGNIHOTRI)
today on 29.10.2024 DJ-07, South East
District, Saket Courts/Delhi
RCA No. 14/24 Page No. 82 of 82
Sukh Charan Singh & Ors Vs. Mohinder Kaur & Ors