Punjab-Haryana High Court
Smt.Kansi vs Iqbal Singh Etc on 24 December, 2014
Author: Arun Palli
Bench: Arun Palli
RSA No.1371 of 1985 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1371 of 1985
Date of decision: 24.12.2014
Kansi (dead) through his LRs
...Appellant
Versus
Iqbal Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Nitin Sarin, Advocate for the appellant.
Mr. GS Bal, Senior Advocate with
Mr. ADS Bal, Advocate for the respondents.
***
1. Whether reporters of local papers may be allowed to
see the judgment?
2. To be referred to the reporters or not? YES
3. Whether the judgment should be reported in the
digest?
***
ARUN PALLI J. (Oral)
Suit filed by the plaintiffs was partly decreed by the trial court vide judgment and decree dated 22.01.1983. Both the parties being aggrieved against the said decree, preferred separate appeals. First appellate court dismissed the appeal filed by the plaintiffs and the appeal preferred by the defendants having been accepted, the suit was dismissed, vide a decree dated 23.01.1985. This is how, plaintiffs are before this court, in this regular second appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -2-
In short, in a suit filed by the plaintiffs, they claimed a declaration that they were the sole owners of land measuring 17 kanal 15 marla, comprised in specific khasra numbers, as depicted in para 12 of the plaint, and for possession thereof. It was averred that plaintiff No.2 i.e. Kansi, was the General Attorney of Smt. Bansi i.e. plaintiff No.1, who died during the pendency of the suit, and thus Parduman Singh i.e. plaintiff No.1 and defendants No.8 to 11 happened to be her legal representatives. It was maintained that Banta Singh son of Nihal Singh was the original owner of the suit land and he died leaving behind Smt. Kansi and Smt. Bansi i.e. his daughters and Smt. Achhari (now deceased) as his widow. Therefore, estate of Banta Singh was inherited by his two daughters and his widow. Defendants No.1 to 6 were neither related to deceased Banta Singh nor to Gurcharan Singh, who was purported to be the adopted son of Banta Singh. Parties to the lis were governed by Hindu Law and thus, Gurcharan Singh could not be adopted. Smt. Achhari, widow of Banta Singh, died about 6/7 years back and was survived by her two daughters. Suit land was given for cultivation to defendant No.7, about four years back, pursuant to an oral lease. However, subsequently he started denying the ownership of the plaintiffs and thus, his possession over the suit land was of a trespasser. Since defendants refused to acknowledge the claim of the plaintiffs, thus, the suit. RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -3-
In defence, it was pleaded, inter alia, that Banta Singh was owner to the extent of ½ share of the suit land and Gurcharan Singh was his adopted son. Even an adoption deed dated 07.12.1953, was executed by Banta Singh in favour of Gurcharan Singh. As Banta Singh died prior to the commencement of Hindu Succession Act, 1956, and was governed by Customary Law in the matter of adoption and succession, he was succeeded by his only adopted son, namely, Gurcharan Singh. As defendants No.1 to 6 happened to be the sons and widow of Gurcharan Singh, after his death, they succeeded to his estate. And thus, they were owners of the suit property. Further, the adoption deed also amounts to a will in favour of deceased Gurcharan Singh. It was denied that plaintiffs ever leased out the suit land to defendant No.7 for cultivation. In fact, out of the suit land khasra Nos.87/24/1(8-0) and 94/4/2(4-16) were possessed by defendants No.1 to 6. And khasra No.25/1(4-16) was in possession of Manjit Singh etc. Trial court, on a consideration of the matter in issue and evidence on record, found that Banta Singh was survived by his two daughters, namely, Kansi (plaintiff No.2) and Smt. Bansi (now deceased) and his widow Smt. Achhari. A copy of the death entry (Ex.P7) proved that Banta Singh son of Nihal Singh died on 26.01.1957 i.e. after coming into force of Hindu Succession Act on 17.06.1956. Marginal witnesses of the RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -4- adoption deed (Ex.D3) had since died, Jagdish Singh (DW2) and Harbans Singh (DW3) were examined to prove the signatures of their respective fathers on the deed of adoption (Ex.D3) and endorsement (Ex.D4). Besides that, defendants had led other evidence to prove that the deceased Banta Singh had been treating Gurcharan Singh as his adopted son and Gurcharan Singh always treated Banta Singh as his real father. Further, pedigree table (Ex.D1) also proved that Gurcharan Singh was the adopted son of Banta Singh. However, on an analysis of the recitals of the deed of adoption (Ex.D3), and the attending circumstances, it was concluded that Banta Singh never intended to execute any will in favour of Gurcharan Singh. It was observed that contents of Ex.D3 did not suggest so. Resultantly, it was held that document (Ex.D3) was merely an adoption deed and not the will. That being so, it was held that Smt. Bansi, Smt. Kansi, Smt. Achhar Kaur and Gurcharan Singh (being an adopted son) were entitled to succeed to the estate of Banta Singh to the extent of 1/4th share each. But as Achhar Kaur had already died about 6/7 years back, her share was succeeded to by her two daughters and therefore, they were entitled to inherit 3/8th share. And Gurcharan Singh was entitled to 1/4th share out of 1/2 share owned by Banta Singh in the suit land. But as Gurcharan Singh had also died in the year 1970, defendants No.1 to 6 were his successors-in-interest. Suit filed by the RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -5- plaintiffs was held to be within limitation and was accordingly decreed. Plaintiffs were declared to be the owner to the extent of 6/8th share out of one half share in the suit land. And entitled to possession in proportion to their entitlement.
Being dissatisfied with the decree, parties to the lis filed separate appeals. Plaintiffs were aggrieved qua the finding that Gurcharan Singh was the adopted son of late Banta Singh. Whereas, defendants assailed the finding that, document (Ex.D3) was merely a deed of adoption and could not be construed as will also.
First appellate court reviewed the matter in issue, evidence on record and on an analysis thereof, found itself in concurrence with the finding recorded by the trial court as regards factum of adoption. It was observed that copy of the appeal (Ex.D1) filed by Kansi against Baldev Singh, Iqbal Singh and others showed that in the pedigree table, drawn in paragraph 3 of the said appeal, Kansi admitted Gurcharan Singh to be the adopted son of Banta Singh. The said admission was neither withdrawn nor alleged to be erroneous by Kansi. Mutation of inheritance of late Banta Singh, Ex.D11, revealed that his estate was mutated in favour of his son Gurcharan Singh, pursuant to a deed of adoption dated 07.12.1953, that was accepted by the revenue officials as the will of late Banta Singh. Even Achhari, widow of Banta Singh, was present at the time of sanctioning of mutation in favour of RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -6- Gurcharan Singh. Accordingly, it was concluded that the adoption deed (Ex.D3), was fully proved. On a consideration of the contents of document (Ex.D3), which recites that after death of Banta Singh, Gurcharan Singh, as his adopted son, would be the sole owner of his entire moveable, immoveable property land and house etc., clearly showed that Banta Singh also wanted his adopted son to solely inherit his estate. Accordingly, in reference to a Full Bench decision of this court in Ranjit Singh v. Garja Singh, 1967 PLR 697, it was observed that adoption deed (Ex.D3) was also meant to operate as will of Banta Singh. That being so, after death of Banta Singh, only his adopted son Gurcharan Singh succeeded to his property. And post death of Gurcharan Singh, his heirs i.e. defendants No.1 to 6 became the owners of the suit property. As Smt. Kansi and Smt. Bansi i.e. daughters of Banta Singh had no right, title or interest in the suit land, the suit filed by them was dismissed.
I have heard learned counsel for the parties at length and perused the records.
Mr. Nitin Sarin, learned counsel for the appellant, fairly states that the finding that Gurcharan Singh was the adopted son of late Banta Singh, could not be questioned and was thus not being assailed. He submits that the only question that arises for determination by this court is whether the adoption deed dated 07.12.1953 (Ex.D3) could also be RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -7- construed or read as the will of late Banta Singh. It is contended that apparently, the document (Ex.D3) is a deed of adoption and the sole purpose to execute the said document was to ensure that status of Gurcharan Singh, as an adopted son, is not questioned post death of Banta Singh. Therefore, he submits that deed of adoption only acknowledges Gurcharan Singh as an adopted son and he at best was entitled to succeed the estate of Banta Singh with his other heirs i.e. plaintiffs. He further submits that on construction of the document (Ex.D3), no other conclusion is possible.
As opposed to this, it is contended by Mr. GS Bal, learned senior counsel for the respondents, that a bare analysis of the document (Ex.D3) and the attending circumstances show that document (Ex.D3) was not just a deed of adoption, but also a will of late Banta Singh, vide which he bequeathed his entire moveable and immoveable property in favour of Gurcharan Singh. Thus, the finding recorded by the first appellate court, in this regard, was unassailable.
On a due and thoughtful consideration of the matter in issue, I am of the considered view that the instant appeal is devoid of merit and is thus, liable to be dismissed for the reasons that are being recorded hereinafter. Short but a significant question that arises for consideration is whether a deed of adoption dated 07.12.1953 (Ex.D3), on an analysis of RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -8- its recitals, language and attending circumstances, can also be construed as a testamentary disposition of late Banta Singh? Before I proceed further, it would be crucial to refer to the ratio of the decision rendered by the Full Bench of this court in Ranjit Singh's case (supra) and the same reads as thus:
"(b) If the adoption is not proved as a fact, it depends upon the facts and circumstances of a particular case whether the language of the adoption deed and the surrounding circumstances lead to the conclusion that it operates as a gift or a testamentary disposition, and (i) if such a conclusion is available, the alleged adopted son takes the property, but, (ii) if such a conclusion is not available, he does not do so and the property passes to the natural heirs of the executant of the deed in intestacy."
What is the true character of the document can only be determined from its constructive and logical construction. Thus, it would be apposite, at this juncture, to refer to the contents of the deed of adoption (Ex.D3), which read as thus:
"I Banta Singh aged about 75 Years son of Nihar Singh, Caste Ramgarhia, am a resident of Dhand, Tehsil Tarn Taran, District Amritsar. I have no male child and I have reached my old age. I own landed property and houses. In the absence of any male child, the name of parents vanished. Moreover, it is necessary to have a male child for performing last rites after the death. Due to this reason, I have adopted Gurcharan Singh son of Surain Singh, Caste Ramgarhia, r/o Dhand, Tehsil Tarn Taran, District Amritsar who is grandson of RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -9- my real brother. When he was of the age of about 5 years, I had adopted him as my son while taking him in my lap and performing religious ceremony before the society. Since that day, I have been rearing and looking after Gurcharan Singh aforesaid as my real son. The relation between me and Gurcharan Singh is like father and son. I have also spent money on his education. I have also solemnized his marriage. Gurcharan Singh aforesaid has been rendering his service to me like my real son. I have two daughters namely Bibi Bansi and Bibi Kansi. Gurcharan Singh aforesaid treats my daughters like his real sisters. Now, Gurcharan Singh is about 35 years of age. Since no writing was prepared in respect of adoption and this life is uncertain and I apprehend that somebody may raise dispute and file case against Gurcharan Singh after my death, so while enjoying right five senses and good intellect, I have got prepared this writing and declare that Gurcharan Singh aforesaid is my adopted son and after my death, he would be owner in possession of my entire moveable and immoveable property, land and houses etc. like my real son. Gurcharan Singh would look after me as well as my daughters and wife Achhri. In case, any body raises any claim against Gurcharan Singh, the same would be considered as invalid by virtue of this writing. Therefore, this Adoption Deed has been got scribed so that it may serve as an authority."
I deem it appropriate to mention that documents Ex.D3 and Ex.D11 were translated by the translation branch of this court, and were accepted to be correctly translated by RAJAN the counsel for the parties.
2014.12.24 15:28I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -10-
A plain reading of the document in question shows that Gurcharan Singh, who happened to be the grandson of the real brother of Banta Singh, was adopted when he was just five years of age. Banta Singh spent on his education and also solemnized his marriage. He acknowledged that ever since Gurcharan Singh was adopted, he looked after him as his real son and he in turn had been rendering services like real son to him. I am reminded to point out that at the time of execution of the document (Ex.D3) on 07.12.1953, Banta Singh was 75 years old and Gurcharan Singh was 35 years of age. What needs to be borne in mind is that the document in question was not executed at the time of adoption but 30 years after Gurcharan Singh was adopted by Banta Singh. The purpose to execute the document (Ex.D3) was obvious and clear, Banta Singh had reached a stage in life, where he deemed necessary to decide as to how and who would inherit his estate. He was conscious of the fact that in the absence of any writing there could be a dispute, post his death, even qua the status of Gurcharan Singh being his adopted son. That is how, he executed the document/deed of adoption (Ex.D3), which is a registered document. It was attested by two marginal witnesses, who had since died but their signatures were proved by examining Jagdish Singh (DW2) and Harbans Singh Singh (DW3), their respective sons. In any case, execution of the document (Ex.D3) was not disputed.
RAJAN2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -11-
Recitals, such as:
"... I have no male child and I have reached my old age. I own landed property and houses. In the absence of any male child, the name of parents vanished.
... I have two daughters namely Bibi Bansi and Bibi Kansi. Gurcharan Singh aforesaid treats my daughters like his real sisters; and ... Now, Gurcharan Singh is about 35 years of age. Since no writing was prepared in respect of adoption and this life is uncertain and I apprehend that somebody may raise dispute and file case against Gurcharan Singh after my death, so while enjoying right five senses and good intellect, I have got prepared this writing and declare that Gurcharan Singh aforesaid is my adopted son and after my death, he would be owner in possession of my entire moveable and immoveable property, land and houses etc. like my real son. Gurcharan Singh would look after me as well as my daughters and wife Achhri. In case, any body raises any claim against Gurcharan Singh, the same would be considered as invalid by virtue of this writing."
conclusively determine that the true character of the document (Ex.D3), is a will and it was intended to operate as such by the executant. And was indeed accepted and construed as such by the other heirs of Banta Singh. Post death of Banta Singh on 26.01.1957, the suit property was exclusively mutated in the name of Gurcharan Singh on 24.04.1961, consequent to the document (Ex.D3), dated 07.12.1953, that was construed and accepted by the revenue agency as a will of late Banta Singh. So much so, Achhar Kaur i.e. the widow of Banta Singh, was present at the time of RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -12- sanctioning of the said mutation. The remarks that were recorded by the revenue official at the time of sanctioning of mutation (Ex.D11) read as thus:
"Place Kaspal, 24.4.61: Presented in general meeting. Gurcharan Singh, adopted son identified by Ajit Singh, Numberdar of the village came present and produced a registered Will dated 17.12.1953 executed by Banta Singh, deceased. As per this Will, Banta Singh owner, since deceased had adopted Gurcharan Singh as his son. Smt. Achhar Kaur widow of Banta Singh is also present. She has been identified by Ajit Singh, Numberdar. She also has no objection in getting the land transferred in the name of adopted son Gurcharan Singh. Therefore, the event regarding succession of Banta Singh owner, since deceased stands sanctioned in favour of his adopted son Gurcharan Singh in its present on the basis of Will."
Not just that pursuant to the mutation (Ex.D11), Gurcharan Singh was shown to be the exclusive owner of the estate of Banta Singh in the records of rights, the position that was never questioned by the plaintiffs. Gurcharan Singh died in the year 1970 and the mutation qua his estate was sanctioned in favour of his sons i.e. defendants. Years rolled by even Achhar Kaur i.e. widow of Banta Singh died 6/7 years prior to institution of the suit i.e. around 1973/1974. And 23 years after the death of Banta Singh on 26.01.1957, plaintiffs chose to file the present suit on 04.10.1980. Ex.D1, copy of the grounds of appeal filed by Kansi on 24.09.1975, shows that RAJAN 2014.12.24 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.1371 of 1985 -13- she litigated with the defendants qua the estate of Narain Singh, who happened to be the brother of late Banta Singh. And the pedigree table drawn in the appeal filed by her showed Gurcharan Singh as son of Banta Singh. Ex facie, she was all along alive to the fact as to who had inherited the estate of Banta Singh and how. On a true construction of the document (Ex.D3) and the attending circumstances, as sketched out above, it comes to fore that the real character of the document in question was a will. And that was a testamentary disposition of late Banta Singh and he intended it to operate as such.
In the wake of the position, as set out above, there hardly exists any ground, least plausible in law, to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. Appeal being devoid of merit is, accordingly, dismissed.
( Arun Palli )
December 24, 2014 Judge
Rajan
RAJAN
2014.12.24 15:28
I attest to the accuracy and
integrity of this document
Chandigarh