Punjab-Haryana High Court
Smt. Chhoto vs Sardar Singh And Ors. on 30 September, 1993
Equivalent citations: (1993)105PLR740
JUDGMENT S.K. Jain, J.
1. In village Salim-sar-Majra, there lived a widower Chandgi Ram. He owned and possessed agricultural land measuring 65 kanals - 2 marlas, fully described in the plaint. He had no male issue but Smt. Chhoto was his daughter who was married to Lal Chand of village Kheri Daman, Sardar Singh who was a total stranger exploited the weaknesses of Chandgi Ram, exercised undue influence upon him and in order to grab his property obtained a collusive decree dated 17.2.1975 in Civil Suit No. 116/i instituted on 13.2.1975 alleging that he was his adopted son. On the basis of the said decree, mutation No. 1777 on 12.5.1977 was also sanctioned in favour of said Sardar Singh defendant No. l. The suit land was shown to have been allegedly transferred in favour of defendants No. 3 and 4 although no consideration had passed. Smt. Chhoto when came to know all these facts instituted Civil Suit No. 517 of 1985 on 26.7.1979 against Sardar Singh his father Chandgi Ram and alleged vendees Raghunath and Ram Chander for a decree of declaration to the effect that the judgment and decree dated 17.2.1975 and the mutation consequent thereupon, was illegal and had no adverser effect on her rights of succession and that after the death of her father Chandgi Ram, she was entitled to succeed to his estate.
2. The suit was contested by the defendants. Two sets of written statements, one on behalf of Sardar Singh and Chandgi Ram and other on behalf of defendants No. 3 and 4, the: vendees, were filed. In the first set of written statement defendants took the stand that Sardar Singh defendant No.l was adopted as a son by defendant No. 2 on 6.6.1968 and the adoption deed was got executed on 29.12.1970. Thereafter, the partition of the entire properties was effected between defendants No. 1 and 2 wherein defendant No. 1 got the entire suit land whereas defendant No. 2 got the entire cash and jewellery. The factum of the partition was affirmed in decree of February 17, 1975. The defendant No. 1 became exclusive owner of the suit land. He sold the same to defendants No. 3 to 4 for an amount of Rs. 11,20,000/- vide sale deed dated 26.7.1979. Defendant No.2 had also executed a valid will on 29.12.1970 bequeathing his property to Sardar Singh. Objections with regard to locus-standi, limitation and maintainability of the suit were taken. It was denied that the plaintiff was the daughter of Chandgi Ram. Defendants No. 3 and 4 had naturally supported the case of defendants No. 1 and 2.
3. The learned trial Court held:-
(i) that the plaintiff was the daughter of Chandgi Ram;
(ii) that Sardar Singh was validly adopted as on by defendant No. 2 Chandgi Ram as his son;
(iii) that vide decree dated 17.2.1975 passed in Civil Suit No. 116/1 instituted on 13.2.1975 (Sardar Singh v. Cahdgi Ram), no valid title in respect of the suit land had passed in favour of defendant No. 1 Sardar Singh;
(iv) that the will dated 17.2.1975 was riddled with suspicious circumstances which could not be dispelled by the defendant and, therefore, the conclusion is that Chandgi Ram had not executed a valid will in favour of Sardar Singh.
(v) plaintiff was the only daughter of Chandgi Ram deceased, whereas Sardar Singh is proved to be his adopted son, so both of them were entitled to succeed to the estate of Chandgi Ram in equal shares;
(vi) that sale of the suit land in favour of defendants No. 3 and 4 vide registered sale deed Ex. D-6 was valid to the extent of 1/2 share of the vendor Sardar Singh whereas in respect of remaining 1/2 share vendee-defendants were in possession against the charge of Rs* 60,000/-. Smt. Chhoto was entitled to take back the posession of 1/2 share on payment of the said amount of Rs. 60,000/-;
(vii) that on the death of Chandgi Ram, the suit was amended for a decree of possession and, therefore, the same was within limitation; and
(viii) that the plaintiff had a cause of action to bring he suit which was maintainable.
Consequently, the learned Sub Judge Ist Class, Sonepat vide his judgment and decree dated 30.11.1985 decreed the suit of the plaintiff to the extent of 1/2 share and she was allowed to take possession of 1/2 share and she was allowed to take possession of 1/2 of the suit land from the vendees on payment of Rs. 60,000/-.
4. Against the said judgment of the trial Court following three appeals were filed:-
(i) Civil Appeal No. 150/13 of 1985 Raghunath and Ram Chander (vendee defendants) v. Smt. Chhoto and Sardar Singh;
(ii) Civil Appeal No.151/13 of 1985 Sardar Singh (defendant No. l) v. Smt. Chhoto (Plaintiff) and Raghunath and Ram Chander (vendees); and
(iii) Civil Appeal No. 2/13 of 1986 Smt. Chhoto (plaintiff) v. Sardar Singh, Raghunath and Ram Chander (defendant Nos. 1, 3 and 4).
5. All the above said three appeals were disposed of by the learned irst appellate Court vide its common judgment and decree dated 24.9.1988.
6. Learned first appellate Court in its judgment held :
(i) that on the basis of decree dated 17.2.1975, adoption deed dated 29.12.1970 and will dated 29.12.1970, Sardar Singh had become absolute owner of the property in dispute;
(ii) that Sardar Singh having become absolute owner of the suit land he had validly transferred the same in favour of Raghunath and Ram Chander vide a registered sale deed dated 26.7.1979 and that the vendees were bonafide purchasers; and
(iii) that in view of the adoption and the will Smt. Chhoto stood deprived of any inheritance in the estate of Chandgi Ram.
7. Learned lower appellate Court, therefore, dismissed the appeal and the suit of the plaintiff and allowed the appeals brought by Sardar Singh and Raghunath and Ram Chander.
8. It is that judgment and decree dated 24.9.1988 of the first appellate Court which has been appealed against by the plaintiff Smt. Chhoto and which requires my examination of its sustainability.
9. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgments of both the Courts below.
10. Learned counsel for the appellant has argued that the Courts below have misread, misconstrued and misinterpreted the evidence on record and have come to the wrong conclusions. In order to appreciate the above arguments, I have carefully examined the record. Chandgi Ram was alive during the pendency of the suit. He has admitted the factum of the giving and taking ceremony having taken place. He has also admitted the execution of the adoption deed as also of the will in favour of Sardar Singh. The ceremony of adoption has also been proved in the testimony of Siri Chand DW8, Inder Singh DW9 and Dariya DW10. Smt. Chalati Devi, mother of Sardar Singh has also admitted to have given Sardar Singh to Chandgi Ram in adoption. Adoption Deed Ex.D1 has been proved by its scribe Rup Chand DW4 and attesting witness Siri Chand. It being a registered document, an irresistible presumption to the effect that adoption had taken place in accordance with the provisions of Hindu Adoption and Maintenance Act, 1956, has to be drawn. In holding this view, I am fortified by the ratio laid down in Narain Singh v. Viru, (1985-2)88 P.L.R. 97.
11. Chandgi Ram appearing as DW1 has admitted the due execution of the will. It has also been proved in the testimony of its scribe Roop Chand DW4 and attesting witness Chander Singh Saroha, Advocate DW2. Besides, what has been stated above, Smt. Chhoto appearing as PW2 has admitted that Chandgi Ram had been living with Sardar Singh and his mother Chalati Devi for the last 10/12 years and that he had stopped talking to her. She had admitted that when she tried to pursuade Chandgi Ram not to have relations with Sardar Singh, he had stated that he would give everything to Sardar Singh. In the will itself, it is recorded that he had performed the marriage of his daughter. Simply because Chandgi Ram had excluded his daughter Smt. Chhoto from inheritance, it will not be a suspicious circumstance to render the will invalid. The Supreme Court in Smt. Sushila Devi v. Pandi Krishna Kumar Misir and Ors., A.I.R. 1971 S.C. 2236 had held that non-bequest of property to children of testator did not make the will invalid if the execution of the will was satisfactorily proved.
12. Chandgi Ram had suffered a Civil Court decree dated 17.2.1975 in favour of Sardar Singh. It was a consent decree. There is nothing on the record to show that Sardar Singh had played fraud or misrepresentation. As mentioned hereinbefore, there is conclusive evidence on record to show that Chandgi Ram had been living with Sardar Singh and his mother Smt. Chalati Devi. He had brought up Sardar Singh and got him admitted in Majir School and he had studied upto 4th or 5th class. The consent decree was a good and binding decree on all concerned unless and until it was set-aside. In holding this view, I am fortified by the ration laid down in Harpal v. Smt. Ram Piari, 1981 P.L.J. 492.
13. Lastly, learned counsel for the appellant has argued that through decree Ex.P-7, property had been transferred by Chandgi Ram in favour of Sardar Singh and, therefore, the said decree required registration. I do not find any force in this argument also. It was a compromise decree, no doubt regarding immovable property which was the subject matter of that suit, but it did not require registration. Firstly, because the plaintiff Sardar Singh had as pre-existing right in the said property being the adopted son of Chandgi Ram and secondly because of the exception contained in Section 17(1)(ii) of the Registration Act. In holding the above view, I draw support from a Division Bench judgment of this Court in Gurdev Kaur and Anr. v. Mehar Singh and Ors., (1990-1)97 P.L.R. 334 (D.B.), wherein it has been held that a compromise decree does not require registration even if title is created in favour of the decree holder for the first time under the decree, whether with consideration or without consideration.
14. In view of the above detailed discussion, I do not find any fault with the impugned judgment, which is hereby confirmed. Consequently this regular second appeal is dismissed. No costs.