Delhi District Court
Shri Jageshwar Nath vs State on 24 September, 2007
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 229/2006
Date of institution :18.10.2005
Date on which the judgment was reserved for :27.08.2007.
Shri Jageshwar Nath
S/o Late Sh. Ram Kishan Dass,
R/o 2680, Chooriwalan,
Delhi-110006. .. Petitioner
Versus.
1. State.
2. Union of India,
through Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi-110001
3. Ram Manohar Lohia Hospital
(Willingdon Hospital)
through Medical Superintendent
RML Hospital,
Baba Kharak Singh Marg,
New Delhi-110001 .. Respondents
JUDGMENT
1. This is a petition under Section 278/276 of the Indian Succession Act for the grant of Letter of Administration with respect to the estate left behind by late Sh. Rameshwar Nath and his wife Smt. Kamla Wati. Briefly stated, the facts as stated in the petition are that : 2: Sh. Rameshwar Nath died on 07.12.1995 and Smt. Kamla Wati died on 14.08.2004. Both died issue-less. Petitioner is the real brother of Sh. Rameshwar Nath and brother in law (Devar) of Smt. Kamla Wati. The family of the petitioner was living at 2680, Chooriwalan, Delhi as a Joint Hindu Family which included his father, real uncle Sh. Ram Nath and brother Sh. Rameshwar Nath. Sh. Ram Nath, uncle of the petitioner was issue-less and therefore out of love and affection towards the elder male child Sh. Rameshwar Nath, he made a desire to treat Sh. Rameshwar Nath as his son so as to give him the name of the father and to perform social rituals as a son. There was no severance from the family of birth and up bringing and custody of Sh. Rameshwar Nath was never given as his custody remained with his natural mother Smt. Bhagwati Devi, who brought him up. No adoption deed was ever executed/registered nor any ceremonies regarding adoption were performed. With mutual understanding, Sh. Ram Nath started treating Sh. Rameshwar Nath as his son. He was taken by him in the family business as one of the partners. Some of the properties were purchased by Sh. Rameshwar Nath in his name and in the name of his wife Kamla Wati from the joint family and joint family business funds. In 1954-55, Sh. Rameshwar Nath started showing serious mental illness. In the year 1961, Sh. Ram Kishan Dass, natural father applied to the court of District Judge for the appointment of guardian and manager of Sh. Rameshwar Nath, who was declared to be lunatic by the doctors. The petition was contested by Smt. Kamla Wati, wife of Sh. Rameshwar : 3: Nath Vide orders dated 12.03.1963, Sh. P.P.R. Sawhney, the then learned District Judge appointed Sh Ram Kishan Dass as the guardian and manager for lunatic Sh. Rameshwar Nath.
The appointment of guardian and manager was upheld by the Hon'ble High Court of Punjab having its Bench at Delhi. In the year 1965, Smt. Kamla Wati started illegally mismanaging the property bearing No. E- 49, Kamla Nagar, New Delhi by usurping the rent and letting out the properties, belonging to Sh. Rameshwar Nath. Sh. Ram Kishan Dass was therefore forced to file Suit No. 634/66 for possession of house No. E-49, Kamla Nagar, New Delhi and for rendition of accounts against Smt. Kamla Wati, wife of lunatic Sh. Rameshwar Nath before the Hon'ble High Court. During proceedings, an understanding arrived at between Sh Ram Kishan Dass, father of Sh. Rameshwar Nath and his wife Smt. Kamla Wati and it was decided amongst the father and wife of Sh. Rameshwar Nath to make arrangements in the form of family settlement, required to be endorsed and enforceable in the form of a decree and as such, the Hon'ble High Court vide its order dated 01.10.1973, passed decree in Suit No. 634/66 in terms of the family settlement. Clause XI of the family settlement reads as under:-
Clause-XI "That after the death of Rameshwar Nath, plaintiff and Kamla Devi, defendant, the respective properties shall go to charity to Willingdon Hospital, New Delhi for the treatment of mentally infirm : 4: persons."
Sh. Ram Kishan Dass expired in the year 1990. The present petitioner applied for appointment as guardian and Manager of Rameshwar Nath in place of Sh. Ram Kishan Dass. Vide order dated 23.10.1981, the court of Sh. P.K. Jain, the then learned District Judge, appointed Sh. Jageshwar Nath, petitioner as guardian and manager of lunatic Sh. Rameshwar Nath.
2. Petitioner has stated in his petition that he has succeeded to the estate of the deceased under the Hindu Law of Succession. Clause XI of family settlement transferring the properties after death, to charity to Willingdon Hospital being illegal and void ab-initio has no legal force and after the death of the deceased, the property vests in the petitioner. It is stated that Clause XI involves the transfer of expectancy rights of the petitioner as heir of the deceased. The same is prohibited under Section 6 (a) of Transfer of Property Act and as such, is illegal, void and not binding on the parties. It has been stated that the contents of Clause XI are extraneous to the subject matter of the suit and the Willingdon Hospital was not a party to the family settlement and therefore, Clause XI is redundant, ineffective and void and has no force of law. It does not form part of the decree. It has been further stated that manager had no permission to transfer or devolve the properties of Sh. Rameshwar Nath as no prior permission was obtained and : 5: therefore, is barred by the provisions of Section 30 of Guardianship & Wards Act as well as Section 78 of the Indian Lunacy Act.
3. The petitioner stated that Clause-XI is void being repugnant and therefore, confers no title on respondents No. 2 & 3. The property passes on the petitioner being real brother of Rameshwar Nath and brother in law of Smt. Kamla Wati as per the Law of Inheritance and Succession. It has been stated that as the family properties belong to Sh. Rameshwar Nath and deceased Kamla Wati and as such, the property is now reverted back to the family of the husband i.e. agnates/legal heirs of husband and devolved upon the petitioner, who is Class-II legal heir as well as he comes under the heritable decree of succession of kinship as agnates of Sh. Rameshwar Nath, husband of deceased Smt. Kamla Wati.
4. Publication was made in Dainik Jagran. No one appeared from general public to file any objection. Notice of the petition was given to respondents. Respondents have filed objections stating that the present petition is not maintainable. It has been stated that as per compromise in Suit No. 634/66, the respective properties of Sh. Rameshwar Nath and Smt. Kamla Wati shall go to charity to Willingdon Hospital, after their death. It has been stated that the petitioner has no locus standi to file the present petition since the petitioner is not a member of the family of late Sh. Rameshwar Nath : 6: and Kamla Wati since 1937 when Sh. Rameshwar Nath had gone in adoption. It is stated that the adoption of Sh. Rameshwar Nath has never been challenged till date in any court of law and therefore, petitioner has no connection with the family of late Sh. Rameshwar Nath. It has been stated that the proceedings before this court are summary in nature and that this court has no jurisdiction to decide the title of the property. It has been further stated that the court of Sh. Sanjay Sharma, the then ARC vide orders dated 07.12.2005 has held that the respondents are the only legal heirs of Sh. Rameshwar Nath. The respondents have denied that petitioner is the legal heir of late Sh. Rameshwar Nath or that he is entitled to succeed to the estate of the deceased. It has been denied that Clause-XI, transferring the properties after death in the charity of Willingdon Hospital, is illegal and void ab-initio. It has been stated that compromise decree passed by the Hon'ble High Court has attained finality and is binding on the parties.
5. In his rejoinder, petitioner has reiterated the averments made in the petition.
6. On completion of the pleadings, following issues were framed:-
1) What is the effect of Clause XI of the Compromise : 7: Deed/petition under Order 23 Rule 3 read with Section 151 CPC dated 21.09.1973 executed between Sh. Rameshwar Nath through his next friend Sh. Ram Kishan Dass and Smt. Kamla Wati? Ouns placed upon Paties.
2) Whether the petitioner has no locus standi to file the petition in view of preliminary objection No. 2? OPR.
3) Whether the petitioner is entitled for letter of administration in respect of all the properties of deceased Sh. Rameshwar Nath? OPP.
4) Relief.
7. In order to prove his case, petitioner tendered his affidavit Exbt. P-1 in evidence. In his affidavit, he has stated about the averments made in his petition. He has proved the following documents:-
(i) Death Certificates of Sh. Rameshwar Nath and Smt. Kamla Wati as Exbt. PW-1/1 and Exbt. PW-1/2 respectively.
(ii) Judgment dated 12.03.1961 passed by Sh. P.P.R. Sawhney the then District Judge as Exbt. PW-1/3.
(iii) Judgment passed by Sh. P.K. Jain, the then District Judge as Exbt. PW-1/4.: 8:
(iv) Family settlement and compromise decree passed in Civil Suit by Hon'ble High Court as Exbt. PW-1/5 and PW-1/5A collectively.
PW-2 is Sh. Chhannu Mal. He has tendered in evidence his affidavit Exbt. PW-2/1 in support of the petitioner's case. His cross examination was recorded by the Local Commissioner. He has been examined with a view to prove the customs relating to adoption and right of inheritance in Aggarwal Community to which the petitioner and the deceased belonged.
8. In their evidence, respondents produced Sh. Surinder Kumar Mann, Administrative Officer of RML Hospital. He filed his affidavit Exbt. R-1. He has proved the copy of the order passed by Ms. Anu Malhotra, the then ARC as Exbt. RW-1/1. He has also proved the copy of order passed by Sh. Sanjay Sharma, the then ARC dated 12.05.2005 as Exbt. RW-1/3.
9. I have heard arguments from the learned counsels of the parties. My issue-wise findings are as under:-
10. ISSUE NO. 1
The admitted facts are that deceased Sh Rameshwar Nath : 9: was declared lunatic and his natural father Sh. Ram Kishan Dass was appointed as his guardian and manager of his property. Admittedly, Sh. Ram Kishan Dass as manager of the property of the lunatic, filed a suit for Possession and for rendition of accounts against Smt. Kamla Wati. It is also an admitted fact that during the pendency of the said suit, a compromise took place between Sh. Ram Kishan Dass, as guardian and manager of properties of lunatic Sh. Rameshwar Nath and Smt. Kamla Wati. An application under Order 23 Rule 3 read with Section 151 CPC was filed in court. As per clause XI of the application, after the death of Rameshwar Nath and Kamal Wati, their respective properties were to go to charity to Willingdon Hospital for the treatment of mentally infirm persons. A decree was drawn in terms thereof. The argument of learned counsel of respondents is that as per the decree, the property left behind by the deceased has to go to the respondents and that the petitioner cannot challenge the decree in these proceedings. No appeal or proceedings have been filed to get the decree declared null and void. The decree has attained finality. The argument of learned counsel of petitioner is that decree can be challenged in collateral proceedings if the same has been obtained by fraud or collusion. The learned counsel in support of his argument, has relied upon AIR 1959 Patna 17, AIR 1955 Patna 66, AIR 1959 Andhra Pradesh 212 and AIR 1970 Patna 13.
11. The decree passed by the Hon'ble High Court in this case is : 10 : a compromise decree under Order 23 Rule 3 CPC. A compromise decree is the creature of an agreement and is subject to all the incidents of such agreement. A compromise decree is but a contract with the command of the Judge superadded to it. It has no greater validity than the contract on which, it is based. It can be set aside on any of the grounds such as fraud, mistake, misrepresentation etc on which, a contract may be set aside. Section 44 of the Indian Evidence Act lays down that when one of the parties to a suit or other proceeding tenders, or has put in evidence, a judgment, order or decree which is relevant under Sub Sections 40, 41 & 42, it is open to the party against whom it is offered to avoid its effect on any of the three grounds specified in the Section, without having it set aside, viz. (a) the incompetency or want of jurisdiction of the court by which the decree was passed; (b) that the judgment was obtained through fraud; or ( c) that it was obtained by collusion. Not only a party to the decree but also a stranger can show that the decree is nullity on account of fraud etc. The rule as to fraud applies equally, whether the judgment and decree impugned was passed by an inferior court or a superior court. In the case of Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others, AIR 2000 Supreme Court 3272, it has been held by the Hon'ble Supreme Court that in order to contend in a latter suit or proceedings that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit for a declaration as to its collusive nature or for setting it aside, as a condition precedent. A : 11 : contrary view would go against the provisions of Section 44 of the Evidence Act which provides that any party to a suit or proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 and 42 and which has been delivered by a court not competent to deliver it or was obtained by fraud or collusion. Similarly, in the case of Bishunath Tewari and others Vs. Mst. Mirchi, AIR 1955 Patna 66, the Hon'ble High Court has held that Section 44 is very wide and lays down not merely a rule of law relating to evidence but also a rule of procedure as to how the judgment should be impeached.
It not merely declares that the judgment which is conclusive against a party may be impeached by such party on the ground of fraud or collusion. It also lays down that the party seeking to impeach it may impeach it in the very suit or proceeding in which the judgment is proved against him by his opponent. Grammatically, lack of jurisdiction and the taint of fraud or collusion are placed exactly on the same footing in wording of Section 44. In this case, it was further held by the Hon'ble High Court that limitation of three years as provided in Article 95 of Limitation Act does not apply for impeaching a judgment on the ground of fraud. In the case of Baldeo Jha and others Vs. Ganga Prasad Jha and others; AIR 1959 Patna 17 while dealing with a compromise decree passed under Order 23 Rule 3 CPC, it was held that the word "lawful" used in Order 23 Rule 3 means lawful within the meaning of the Contract Act. If therefore, the object or consideration of the compromise on which the decree is based comes within any of the : 12 : matters enumerated in Section 23, Contract Act, as making an agreement unlawful, the compromise decree itself is unlawful and is thus void. Such decree being ab-initio, does not operate as resjudicata. Such a decree can be ignored as being void. In the case of Syed Shah Gulam Ghous Mohiuddin Khamesul Qadri and others Vs. Syed Shah Abdul Har Khamisul Qadri and others AIR 1959 Andhra Pradesh 212, it has been held that a decree whether it is of an inferior court or of a superior court, whether it be a consent decree or exparte decree or a decree passed after contest, can be always impeached on the ground of fraud.
12. Thus, the legal position is that under Section 44, a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party was passed by a court without jurisdiction or was obtained by fraud or collusion, it is not necessary to bring an independent suit for setting it aside. The right given by Section 44 has not been fettered by any limitation.
13. It has been argued by the learned counsel of petitioner that Clause XI of the family settlement involves the transfer of expectancy rights of the petitioner as heir of the deceased which is prohibited under Section 6 (a) of Transfer of Property Act and as such, is void and is not binding on the petitioner. It is submitted that the grant of : 13 : letter of administration is regulated by general rules of Hindu Law, contained in Hindu Succession Act. The property vests on legal heir by survivorship, such heritable rights cannot be divested by any agreement or contract. The agreement/compromise to agree to transfer legacy after one's own death, is barred by Transfer of Property Act. The transfer of remainder after the death of Hindu widow to Willingdon Hospital being in the nature of spec successionis could confer no title on Willingdon Hospital. Such compromise/transfer is barred by Section 6 (a) of the Transfer of Property Act. In support of his submission, the learned counsel has relied upon AIR 1964 Madras 387; AIR 1940 PC 181 and AIR 1955 Andhra 49.
14. A transfer means a conveyance of property not only in present but also in future. The conveyance must be in present or in future. But the property itself must be in existence, at least potentially, as the property of the grantor. The general rule is that property of any kind may be transferred except restrictions imposed by Section 6 of the Transfer of Property Act. Section 6 (a) of the Transfer of Property Act provides that chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature cannot be transferred. A person having interest which is spes successionis i.e. Expecting to succeed to the property in future, : 14 : cannot bring a suit on the basis of such interest. Only present rights can be dealt with as property and not inchoate future rights such as spes successionis.
15. I have carefully gone through the authorities cited before me. There is no dispute with regard to the legal position laid down in the case of Har Naraini Kanwar Vs. Sajjan Pal Singh & Others, AIR 1940 Privy Council 181. In this case, it has been held that reversioner's interest becomes concrete only on demise of a female owner, until then, it is mere spes successionis. The guardian of minor reversioner cannot bargain with it on his behalf or bind him by any contractual agreement in respect thereto. It has been further held in this case that a Hindu reversioner has no right or interest in prasenti in the property which the female owner hold for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise; until then, it is mere spes successionis. His guardian, if he happens to be a minor, cannot bargain with it on his behalf or bind him by any contractual agreement thereto.
16. The argument of learned counsel of the petitioner is that deceased Rameshwar Nath and his wife Smt. Kamla Wati vide their application under Order 23 Rule 3 CPC Exbt. RW-1/2 had agreed that they shall have no right to sell/transfer, mortgage, alienate or : 15 : dispose of the property and therefore, they were the limited owners of the property and could not have made transfer of the property to the Willingdon Hospital charity. According to the learned counsel, the aforesaid judgment is squarely applicable to the facts of the present case.
17. I find no merit in the argument of learned counsel in as much as, the afore-cited judgment is not applicable to the facts of the present case. Admittedly, Sh. Rameshwar Nath and Smt. Kamla Wati were the absolute owners of the property. The property was in existence. By virtue of the settlement, they had merely agreed to the conveyance of property in future. Their interest in the property was not spes successionis , which could not be transferred.
18. The second authority cited by the learned counsel is Dodda Subbareddi Vs. Ganturu Govindareddi, AIR 1955 Andhra 49. In this case, it was held by the Hon'ble High Court that during the lifetime of a widow, the reversioner has no interest in praesenti in the suit property. Her interest is spes successionis or a mere chance of succession, within the meaning of Section 6 of Transfer of Property Act. It is not a vested interest, but only an interest expectant on the death of a limited heir. It cannot, therefore, be sold, mortgaged or assigned, nor can it be relinquished. That a transfer of a Spes Successionis is a nullity, and has no effect in law. This authority is : 16 : also not applicable to the facts of the present case because Sh. Rameshwar Nath and his wife Smt. Kamla Wati were the absolute owners of the property and they have agreed to transfer the said property after their death and not a Spes Successionis.
19. The third and the last authority cited on behalf of the petitioner is that of Rangaswami Naicker Vs. Chinnammal and another, AIR 1964 Madras 387. In this case, a Hindu widow, claiming a half share in the property under the Hindu Women's Rights to Property Act filed a suit for an injunction to restrain her grandson. The suit terminated in a compromise. The material clause of the agreement stated that the grandson should be entitled to the suit properties after the lifetime of the widow. Subsequently, the widow claiming full interest under Section 14 (1) of Hindu Succession Act , made a testamentary disposition of the property to her daughters. The rights of daughters having been disputed by the grandson, they filed a suit for partition. It was held by the Hon'ble High Court that a Hindu widow in possession of her husband's estate represents such estate in its entirety and that so long as she is in possession of that property, no other person has any right thereto. She will be the full owner of the property albeit her powers of disposal are limited and therefore, there is no scope for any vested remainder existing so long as the female owner possess her estate as defined by the law. It was further held that the gift over a remainder after a widow's : 17 : estate being in the nature of spes successionis can confer no title. It was further held that it would not be possible to have a vested remainder after conferring a limited estate of the nature of a Hindu woman's estate. In my view, even this authority is not applicable to the facts of the present case as in this case, the widow was only having a limited interest in the property due to which, it was held that there was no scope for any vested remainder existing, which could be transferred.
20. Hence, all the three authorities cited by the petitioner are not applicable to the facts of the present case. In my view, Clause-XI of the family settlement does not involve the transfer of expectancy rights to the charity to Willingdon Hospital, and is therefore not hit by Section 6 (a) of Transfer of Property Act.
21. The next point argued by the learned counsel of petitioner is that Clause XI is illegal for the reason that manager has no permission to transfer or devolve the properties of Sh. Rameshwar Nath and that Clause-XI amounted to transferring/devolving the properties or to be given away in charity, amounts to depriving the lunatic and is against the interest of the lunatic.
22. Order 32 CPC deals with suits by or against the minors and persons of unsound mind. Rules 1 to 14 (Except Rule 2-A) of Order : 18 : 32 CPC are applicable to the persons of unsound mind as provided in Order 32 Rule 15 CPC. Rule 7 empowers a guardian or next friend to enter into an agreement or compromise with the leave of the court. Guardian/Manager of a lunatic has the same power as that of the guardian of a minor. Therefore, it cannot be held that the manager had no power to enter into an agreement for transfer of the properties of Sh. Rameshwar Nath (lunatic) to the charity. There is no dispute that the compromise was recorded with the permission of the court. Petitioner has not explained as to how the agreement was against the interest of the lunatic. In continuation of the aforesaid plea, the learned counsel has further argued that such a settlement is specifically barred by Section 75 of Indian Lunacy Act as prior permission for such transfer/alienation is a mandatory requirement, to be obtained from the court of the District Judge prior to transfer and in the absence of such permission, all such transfers are void ab- initio. It has been further submitted that the power of granting necessary permission for transfer etc., solely vests within the domain of the District Judge and cannot be delegated. No such permission was either obtained or applied by guardian Sh. Ram Kishan Dass. The power for granting permission for transfer was not vested in the domain of the Hon'ble High Court and therefore clause in compromise deed, transferring the property to charity to Willingdon Hospital is illegal being without requisite permission. : 19 :
23. Section 75 of the Indian Lunacy Act provides that no manager of the estate of a lunatic, so appointed shall without permission of the court mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property of the lunatic. The statutory provision for safeguarding the interests of the lunatic in a suit is contained in Order 32 Rule 7 of the Civil Procedure Code. Hence, a certificated guardian can compromise a suit with the sanction of the court under the provisions of Civil Procedure Code as aforesaid, without obtaining separately any sanction under Section 75 of the Indian Lunacy Act, 1912. Therefore, if the guardian, in pursuance of the compromise, sells or transfers the property without sanction, required by Section 75 of the Lunacy Act, the transfer is valid. For, whether the sanction is under the Civil Procedure Code or under Section 75 of the Indian Lunacy Act, in either case, it shows that the compromise was for the benefit of the minor and the former sanction makes the latter one unnecessary. Whether a compromise made by a guardian on behalf of a minor should or should not be sanctioned by the court is a matter mainly for that court, as a general rule, a compromise as sanctioned, cannot be challenged unless it is proved that there has been some fraud or misrepresentation. It is therefore erroneous to suppose that the compromise entered into by Sh. Ram Kishan Dass as guardian/manager of the properties of the lunatic with the sanction of the Hon'ble High Court, required in addition the permission of the District Judge under Section 75 of the : 20 : Indian Lunacy Act.
24. It has next been argued that no decree in specific terms of Clause-XI was passed by Hon'ble High Court in its order dated 01.10.1973 and therefore, Clause-XI is not forming part of the decree and is therefore ineffective and inoperative having no force of law. This argument is without any basis as the compromise deed dated 21.1.1973 under Order 23 Rule 3 read with Section 151 CPC has been appended as Annexure A and the suit has been decreed in terms of the compromise deed dated 21.11.1973. Obviously, Clause- XI is one of the terms of the compromise deed dated 21.11.1973 and is thus forming part of the decree.
25. Petitioner has thus failed to prove that the decree dated 01.10.1973 was obtained by playing fraud on court. He has also failed to prove that Clause-XI of the compromise is unlawful. Hence, Clause-XI of the compromise deed dated 21.09.1973 that after the death of Sh. Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital, New Delhi for the treatment of mentally infirm persons is enforceable. Issue No. 1 is decided accordingly.
26. ISSUE NO. 2
It has been argued by the learned counsel of respondents : 21 : that petitioner has no locus standi to file the present petition as he has ceased to the member of the family of Rameshwar Nath and Kamla Wati since 1937 when Rameshwar Nath had gone in adoption to Sh. Ram Nath. It is argued that after the adoption the person severes all rights and lien from the family of birth. The petitioner therefore has no connection with the family of late Sh. Rameshwar Nath.
27. The argument of learned counsel of petitioner is that Sh. Rameshwar Nath was not given in adoption. No adoption deed was ever executed or registered or any ceremony regarding adoption were performed. As per mutual understanding, late Sh. Ram Nath, maternal uncle, treated Rameshwar Nath as his son but there was no severance of ties of Rameshwar Nath from the family of birth and upbringing and custody of Rameshwar Nath remained with natural mother, who brought him up. The learned counsel has drawn the attention of the court to the affidavit of PW-2 Sh. Chhannu Mal, who has stated that he knows the family of Sh. Ram Kishan Dass and also knows Ram Nath who was residing with his widow sister i.e mother of Ram Kishan Dass in her house. According to him, no ceremonies of adoption were performed and an arrangement was made to make Rameshwar Nath as "Muhn Bola Beta" of Ram Nath to perform rituals and rites. He has deposed that in Aggawal Samaj as per the customs and traditions in such type of arrangements for adopting a child as "Muhn Bola Beta", connection from the family of : 22 : birth does not severe and such child is not legally transplanted from the family of birth. Rameshwar Nath was not transplanted from the family of birth and continued to be brought up by his natural mother and in the family house of his natural parents. He has further stated that as per customs of Aggarwal Community, the right of inheritance remains with natural family of birth. If such child dies issue-less, the property reverts back to the members of natural family.
28. It has thus been argued that in view of the customs prevalent in Aggarwal Community, the property of Rameshwar Nath has to revert back to the family of his birth and the petitioner being the only surviving legal heir, has locus standi to file the petition for grant of letter of administration.
29. Sh. Ram Kishan Dass, natural father of Rameshwar Nath was appointed as guardian of the person of Rameshwar Nath and manager of his properties vide judgment dated 12.03.1963 Exbt. PW- 1/3 passed by the then learned District Judge Sh. P.P.R. Sawhney. The learned District Judge has quoted from the application of Ram Kishan Dass that Rameshwar Nath had been given in adoption to Ram Nath in 1937. The averment made in the application of Ram Kishan Dass proves the fact of giving of Rameshwar Nath in adoption to Ram Nath. In order dated 23.10.1991 in Miscellaneous Case No. 1/1990 passed by the then learned District Judge Sh. P.K. Jain, it has been : 23 : quoted from the testimony of the present petitioner that Rameshwar Nath was given in adoption to his uncle in the year 1937 and he has no interest adverse to the interest of Rameshwar Nath. He further gave the statement that he has no right to succeed or to inherit the property of Rameshwar Nath since he has been given in adoption. Passing of the judgment or giving such a statement in court is not disputed. There has been no challenge to the adoption till date by anyone till the death of Rameshwar Nath. Petitioner cannot be allowed to take contrary or alternative pleas, once it has been accepted and admitted by him that Rameshwar Nath was given in adoption. He cannot be allowed to retract from the statement which he gave in earlier proceedings. Any evidence led to the contrary by the petitioner is therefore not acceptable. I, therefore, refuse to believe that it was only a formal family arrangement and not adoption of Rameshwar Nath.
30. Section 12 of the Hindu Adoption & Maintenance Act, 1956 lays down vital rule relating to the result of adoption. It confers upon the adoptee the same rights and privileges in the family of the adopter as the legitimate natural born son or daughter for all purposes with effect from the date of adoption. An adoptee is to be deemed to be the child of his/her adopted father or mother for all purposes and from the date of adoption all the ties of the child in the family of his or her birth are to be deemed to have been severed and replaced by those created by adoption in the adoptive family. The argument of the learned Counsel : 24 : of petitioner is that the adoption of Rameshwar Nath took place much prior to coming into force of Hindu Adoption & Maintenance Act, 1956 and therefore, the provisions of this Act of 1956 do not apply to any act of adoption made prior to 1956. The act does not have a retrospective effect. Therefore, the evidence led by PW2 proves that there was no severance of ties of Rameshwar Nath from the family of his birth and as such on the death of Rameshwar Nath and his wife, their estate has reverted back to the family of birth of Rameshwar Nath and hence, the petitioner being his real brother has locus standi to file the present petition.
31. The Hindu Adoption & Maintenance Act came into effect on 21st December, 1956. The Act as expressly ruled in Section 4 inter-alia superseded the law relating to adoption as previously applicable to Hindus. However, it is not intended to have retrospective operation by effecting the validity and effect of any adoption made in accordance with law before the Act came into force. Section 30 of the Act states that nothing contained in the Act is to effect any adoption made before the commencement of the Act and the validity and effect of any such adoption must be determined by the law as it stood before the Act came into operation. Admittedly, Rameshwar Nath was given in adoption before coming into force of Hindu Adoption & Maintenance Act, 1956 and that being so Section 12 of the Act is not applicable in the present case.
: 25 :
32. The question which now requires consideration is as to what was the effect of adoption prior to coming into force of the Hindu Adoption & Maintenance Act. The law prior to Hindu Adoption and Maintenance Act, 1956 has been discussed in the Chapter of Adoption in Mulla's Hindu Law 20th Edition, Volume-1. The result of adoption has been dealt with at page no. 490, where it has been provided as under :
"491. RESULT OF ADOPTION (1) Adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adoptee, the same rights and privileges in the family of the adopter as the legitimate son, except in a few cases.
(2) But while the adopted son acquires the rights of a son in the adoptive family, he loses all the rights of a son in his natural family, including the right of claiming any share in the 'estate of his natural father' or natural relations, or any share in the coparcenary property of his natural family.
This follows from a text of Manu (IX Verse 142)."
33. Thus, the law with regard to the effect of adoption was the same even before coming into the effect of Hindu Adoption & Maintenance Act, 1956. Even under the old law, there was severance of ties of the adopted child in the family of his birth. That being the legal position, on adoption of Mr. Rameshwar Nath, his property on his death : 26 : shall not automatically revert back to the family of his birth.
34. The last argument of the learned Counsel of petitioner is that late Shri Ram Kishan Dass was the natural father of the petitioner and Rameshwar Nath. Shri RamKishan Dass was the son of sister of Shri RamNath. Shri Rameshwar Nath was given in adoption to Shri Ram Nath. Thus, petitioner is the relative of Shri Ram Nath being son of his sister's son and, therefore, the petitioner is surviving agnate under Section 12 of the Hindu Succession Act as well as Section 48 of the Indian Succession Act and, therefore, he has the locus standi to file present petition.
35. Even this argument is not available to the petitioner in view of my findings on Issue No. 1 that after the death of Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital for the treatment of mentally infirm persons in terms of Clause XI of the compromise deed dated 21.11.1973. Therefore, petitioner has no locus standi to file the present petition. Issue No. 2 is decided accordingly.
ISSUE NO. 3
36. In view of my finding on aforesaid issues, Clause-XI of compromise is lawful and after the death of Shri Rameshwar Nath and : 27 : Smt. Kamla Wati, their respective properties shall go to the charity to Willingdon Hospital, New Delhi, for treatment of mentally infirm persons. The petitioner is, therefore, not entitled to the grant of letter of administration in respect of the estate of deceased Rameshwar Nath. Issue No. 3 is decided accordingly.
ISSUE NO. 4 (RELIEF)
37. In view of my finding on the aforesaid issues, the petition is dismissed. File be consigned to Record Room.
Announced in open (RAVINDER DUDEJA)
Court on 24.9.2007 ADDL. DISTRICT JUDGE:
DELHI.