Allahabad High Court
Harkesh vs D.D.C. & Others on 29 March, 2012
Author: A.P. Sahi
Bench: A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 58 Civil Misc. Writ Petition No. 11961 of 2009 Harkesh Vs. Deputy Director of Consolidation, Gautam Budh Nagar & Ors. ***** Hon'ble A.P. Sahi,J.
This matter had been earlier heard and the judgment had been reserved. On account of certain clarifications that were required the petition was listed for further hearing and has been heard on 27.3.2012. Sri Sharad Mandhyan has assisted the court on behalf of the petitioner and Sri S.C. Verma has raised his submissions on behalf of the contesting private respondent no. 4 Mahendra Singh. Learned Standing Counsel for the respondent no. 1, 2 and 3, and the learned counsel for the Gaon Sabha respondent Nos. 5 and 6 have also been heard. Affidavits have been exchanged between the parties.
The challenge raised in this writ petition is to the orders passed by the Deputy Director of Consolidation confirming the order of the Settlement Officer Consolidation and the Consolidation Officer in a dispute of title over the holding of late Swaroop Lal who died on 25th April, 1986 leaving behind the respondent no. 4 and the petitioner who are contesting the succession to his holding. It is undisputed that the petitioner is the natural son of Swaroop Lal and so is the respondent no. 4 who are real brothers by birth. The date of birth of the petitioner as recorded in the High School certificate as 12.3.1948 is also undisputed.
The fact that the petitioner succeeded to the holding of his aunt Smt. Sheesh Kaur under a will dated 10.11.1975 is also undisputed, even though the respondent no. 4 has raised a doubt about the genuineness of the said will in favour of the petitioner. The relevance of this fact would be unfolded as and when the findings are recorded hereinafter.
The pedigree by which the parties are governed is also undisputed and is reproduced hereinunder:-
pUnu ¼cMMu½ eqa'kh jke xqykc ';ke yky Lo:i yky (died on 25.4.86) Jherh 'kh'kdkSj Hkh"e ftys egsUnz flag gjds'k flag (died on 18.7.76) (Res. No. 4) (petitioner) According to the aforesaid pedigree the petitioner and the respondent no. 4 are the real natural sons of late Swaroop Lal. One of Swaroop Lal's brother, Munshi, had only daughters who were married and settled. Sheesh Kaur, the widow of Munshi, inherited his holding and was the tenure holder of the share of Munshi. She is said to have executed a registered will on 10.11.1975 in respect of her holding to the extent of half share each in favour of the petitioner Harkesh, and his cousin brother Bhishm son of Shyam Lal. Thus, the petitioner and Bhishm succeeded to the holding of Sheesh Kaur who died on 18th July, 1976. Consolidation operations had set in and as such Harkesh and Bhishm get their names mutated in proceedings under Section 12 of the U.P. Consolidation of Holdings Act, 1953 for which orders were passed by the Consolidation Officer on 24.1.1984, in place of Smt. Sheesh Kaur. 10 years thereafter Swaroop Lal died on 25.4.1986.
It is now that the dispute arose with regard to the holding of Swaroop Lal as a mutation application is said to have been filed with regard to his share by Harkesh claiming joint succession alongwith the respondent no. 4 his real brother Mahendra Singh. The Consolidation Officer passed an order on 31st March, 1989. The village was de-notified under Section 52 of the 1953 Act on 27th March, 1993 upon close of the consolidation operations.
It is after 10 years of the passing of the order of the Consolidation Officer on 31.3.1989 and the de-notification of the village under Section 52 of the Act that the respondent no. 4 Mahendra Singh filed a restoration application before the Consolidation Officer coupled with an objection contending that the order dated 31st March, 1989 was ex-parte to him as he was living outside in connection with his profession, and that the said order is also erroneous on facts and in law, inasmuch as, his real brother Harkesh, the petitioner had already been adopted by Munshi and Smt. Sheesh Kaur, and to evidence the said adoption, a deed had been executed on 20.4.1970 and registered on 23.4.1970. Mahendra Singh the respondent no. 4 herein therefore contended that his real brother Harkesh the petitioner herein had already been given in adoption long before the death of his father and as such he could not have succeeded to the holding of his natural father Swaroop Lal. According to the respondent no. 4, he being the only son on the date of the death of Swaroop Lal i.e. 25.4.1986, the entire holding was succeeded by him and the claim of Harkesh was absolutely unfounded. It is on this ground that a prayer was made for setting aside the order dated 31st March, 1989.
Mahendra Singh had filed the restoration on 22.12.1999 and another restoration application was filed by the Gaon Sabha and the Land Management Committee. The restoration filed by Mahendra remained pending but the restoration filed by the Gaon Sabha was allowed on 2nd February, 2000, as a result whereof the Consolidation Officer passed an order staying the operation of the order dated 31.3.1989.
The petitioner in whose favour the order dated 31st March, 1989 had been passed, was aggrieved, and he filed a revision which was dismissed. Against the said dismissal, writ petition no. 28846 of 2003 was filed by the petitioner and the same was dismissed on 9th February, 2005 with a finding that since finality is to be attached to the determination of rights, and the matter needs to be decided on merits relating to inheritance, the Consolidation Officer should decide the matter on merits. It was further held that the order dated 31st March, 1989 was ex-parte and without notice to Mahendra Singh. As such, neither the order dated 31st March, 1989 can be sustained nor the order dated 2.2.2000. The result of the aforesaid judgment was that the Consolidation Officer had to proceed to decide the claim on merits between the petitioner and the respondent no. 4 afresh. A copy of the said judgment is Annexure 3 to the writ petition.
Consequent to the judgment of the High Court the Consolidation Officer again proceeded to hear the entire dispute on merits and concluded that the adoption deed as set up by the respondent no. 4 evidencing the adoption of the petitioner by Munshi and Smt. Sheesh Kaur, was a genuine document, and was proved to have been executed, as such Harkesh having been adopted by Munshi and Sheesh Kaur, ceased to be the son of Swaroop Lal and as such he could not succeed to his holding. The respondent no. 4 was therefore found entitled to succeed to the entire holding of his father Swaroop Lal. The order of the Consolidation Officer was subjected to an appeal by the petitioner which was also dismissed affirming the order of the trial court on 25.1.2008 and a revision filed against the same has also met the same fate on 29.1.2009. Aggrieved the petitioner is before this Court under Article 226 of the Constitution of India.
Sri Sharad Mandhyan learned counsel for the petitioner- Harkesh submits that this factum of adoption as alleged by the respondent no. 4 was never set up in any proceedings before any authority at any point of time. This deed which is said to have been executed on 20.4.1970 and registered on 23.4.1970 is an invalid document and further no adoption at all had taken place.
To substantiate his submission Sri Mandhyan submits that the respondent no. 4 Mahendra Singh sat for 10 years after the order dated 31st March, 1989 and in between the name of the petitioner continued in the revenue records along with that of the respondent no. 4 to which no objection was raised. It is only in the year 1999 that without giving any explanation for this delay of 10 years that a restoration was filed by the respondent no. 4 against the order dated 31.3.1989. A bald allegation was made that the respondent no. 4 was away in connection with his profession in the year 1986 when his father died, and taking undue advantage of his absence, the petitioner had got his name mutated alongwith the respondent no. 4. This explanation was insufficient according to Sri Mandhyan and the Consolidation Officer without adverting to this aspect of the matter has delivered an order which is erroneous.
Coming to the factum of adoption Sri Mandhyan submits that there is a clear denial of the adoption by the petitioner and there was a vague assertion in the first objection filed by the respondent no. 4 in the year 1999, copy whereof is Annexure 7 to the writ petition. In paragraph 5 of the said objection it has been just stated that the petitioner had been taken in adoption and the deed was executed on 20.4.1970.
Sri Mandhayn further submits that this vague assertion in the first objection was sought to be further supplemented by raising a new plea in the objection filed after the order of remand by the High Court. This objection was moved before the Consolidation Officer on 27.4.2005, copy whereof is Annexure 8, where it has been stated that the petitioner was adopted when he was about four years of age after performing all the ceremonial rights for the purpose of adoption in the presence of the Kul Purohit and members of the community. Sri Mandhyan submits that this was a clear improvement and an afterthought to the earlier objection which aspect has also not been appreciated in correct perspective by the authorities below. Adverting to the statement of the witnesses, namely, Raghuvar and Madan Lal, who were produced by the respondent no. 4, it is urged that Raghuvar is not a witness to the ceremony of adoption and the other witness is the attesting witness of the adoption deed. The Consolidation Officer, therefore, wrongly relied on this statement of the said witnesses to believe the factum of adoption. He contends that no such inference of adoption can be drawn from the statement of these two witnesses.
He further submits that if this adoption is taken to be evidenced by the deed of 1970, then the registration of the adoption deed is a nullity and no benefit can accrue to the petitioner out of such an adoption, as he was already 22 years of age in the year 1970. It is urged that the date of birth of the petitioner as contained in his High School certificate which was issued in the year 1968 is undisputed and is dated 12.3.1948. It is for this reason that in the second objection the respondent no. 4 further improved upon his pleading by saying that the adoption was made when the petitioner was four years old which fact was never stated before. He therefore submits that the bar of sub-section (4) of Section 11 of the Hindu Adoption and Maintenance Act, 1956 is clearly attracted and it annuls the theory of adoption as set up by the respondent no. 4 as the petitioner was more than 15 years of age at the time of the execution of the deed in 1970.
The next submission of Sri Mandhyan is that in view of the provisions of Section 16 of the Act no presumption can be raised with regard to the registered deed of adoption, inasmuch as, the deed no where recites the giving and taking of the act of adoption as provided for therein. Sri Mandhyan submits that in the absence of any such recital there is no occasion to raise any presumption with regard to the validity of the registration of the deed of adoption. The deed is unilateral and not an evidence of a bilateral act as is necessary for such a legal presumption under the Adoption Act. The deed is not signed or witnessed by either Swaroop Lal or his wife as required under Section 16 thereof.
Taking his submissions further he points out that there was no evidence of severance of the natural status of the petitioner as the son of Swaroop Lal, as the parentage of the petitioner is Swaroop Lal in the will dated 10.11.1975 executed by Sheesh Kaur, and the said will was never challenged. The petitioner was allowed to succeed to the holding of Sheesh Kaur under the order dated 24.1.1984 which has not been set aside so far. He further submits that the parentage of the petitioner as Swaroop Lal was also maintained in the High School Certificate. If the petitioner had been adopted when he was about four years of age, which roughly comes to the year 1952, then there was no occasion for mentioning the name of the natural father of the petitioner in the High School Certificate. The adoption if had already taken place, the name of the father of the petitioner should have been shown as Munshi, and not Swaroop Lal. All the authorities below have overlooked this aspect of the matter as well.
Sri Mandhyan points out that Sheesh Kaur is the signatory of the alleged deed of adoption but while executing the will on 10.11.1975 in respect of her holding in favour of the petitioner and his cousin Bhishm, she nowhere indicates any adoption having taken place or any deed having been executed.
It is further contended that Lakhi Chandra son-in-law of Sheesh Kaur was produced as a witness by the petitioner and his statement indicates that the last rites of Sheesh Kaur were not performed by the petitioner but by Lakhi Chandra and others. Sri Mandhyan contends that if the petitioner was the adopted son of Munshi and Sheesh Kaur, then it is he who would have performed the last rites of Sheesh Kaur when she died in 1976. There is no evidence in rebuttal by the respondent no. 4 to this aspect which was explained by the witness of the petitioner, and which aspect has been completely ignored by the authorities below. He therefore submits that the factum of adoption was not at all proved, the presumption raised in respect of the adoption deed had already been dislodged and evidence had been led by the petitioner to negate the claim of adoption set up by the respondent no. 4.
In support of his submissions Sri Mandhyan has relied on three decisions namely in the cases of Jai Prakash Vs. Smt. Krishna Devi & others reported in 1996 ACJ 1276, Km. Rakhi & another Vs. Ist Additional District Judge, Firozabad and others reported in 2000 Allahabad Pg. 166 and Pabbathi Reddy Sudarshan Reddy Vs. Pabbathi Reddy Sashirekhamma reported in 1996 Andhra Pradesh Pg. 300. He has further placed reliance on the Supreme Court judgment in the case of Lakshman Singh Kothari Vs. Smt. Rup Kanwar, AIR 1961 Supreme Court Pg. 1378 to contend that in the absence of any evidence of the giving or taking in ceremony, the factum of adoption cannot be presumed on the basis of the execution of a deed itself. He further contends that in view of the aforesaid authorities cited, and the facts aforesaid, the claim of the respondent no. 4 that the petitioner had been adopted by Munshi and Sheesh Kaur, is not established. Thus the findings recorded by all the authorities below which proceed only on the basis of the execution of a valid adoption deed, are erroneous and perverse, and the impugned orders deserve to be set aside.
Sri S.C. Verma learned counsel for the respondent no. 4 contends that the pedigree is undisputed but the petitioner came to be adopted when he was four years of age by Munshi and Smt. Sheesh Kaur. According to the date of birth of the petitioner he must have been adopted sometime in 1952 or thereafter, and to substantiate the same the statement of Raghuvar is of vital importance. He contends that this adoption has been evidenced by the execution of a registered deed in 1970, which document has been proved by the attesting witness and the same was never challenged in any proceedings, nor was it denied either by the petitioner or any other person.
He contends that it is for this reason that the execution of the will dated 10.11.1975 becomes seriously doubtful as observed by the Consolidation Officer, and even if it is assumed that the will dated 10.11.1975 had been executed by Sheesh Kaur, the same may have been necessary only for succession to the holding of Sheesh Kaur so that the wishes of Sheesh Kaur to give half of her property to Bhishm is not frustrated. Merely because the time of adoption and the execution of the adoption deed is not mentioned in the will dated 10.11.1975, the same cannot be a ground to infer that no adoption had taken place at all or that the deed had not been registered.
Sri Verma has taken the court through the statement of Raghuvar to contend that he has clearly indicated the fact of adoption which was witnessed by the giving and taking in ceremony between the parties. According to him, the adoption was bilateral and no challenge to the factum of adoption was ever raised. The challenge by the petitioner is only to the validity of the adoption deed executed in 1970 and at the best, the legal presumption that has been claimed in respect thereof has been only questioned.
He further submits that the adoption was made when the petitioner was a minor and was less than 15 years of age. His submission is that the first objection filed by the answering respondent in the year 1999 indicated a clear case of adoption according to ceremonial rights and the timing of the adoption was subsequently explained in the second objection. The contention on behalf of the petitioner that the adoption had not been challenged is therefore incorrect. The contents of adoption as contained in the deed has not been successfully challenged and even if the registration of the deed is put aside for the time being, then too there was overwhelming evidence relating to the adoption of the petitioner.
He further submits that succession cannot be defeated merely on account of some lapse of time and therefore the restoration and the objection filed by the answering respondent in 1999 to set aside the order dated 18th March, 1989 was justified. He therefore contends that this Court rightly made the observations in the judgment dated 9.2.2005 in writ petition no. 28846 of 2003 to decide all matters relating to the dispute between the parties on merits. The Consolidation Officer, therefore, had to proceed to decide the claim on merits without being influenced by the alleged claim of delay by the petitioner. Not only this, the delay has been condoned and the High Court in the judgment dated 9th February, 2005 for this reason directed the claim to be decided on the basis of merits.
The adoption deed was never challenged by the petitioner and the same was proved beyond doubt as such the petitioner's adoption by Munshi and Sheesh Kaur stood established. Accordingly, the petitioner lost his rights to inherit the property of his natural father. The mutation order dated 31st March, 1989 had been obtained surreptitiously by the petitioner to the disadvantage of the answering respondent as such the Consolidation Officer did not commit any illegality in setting aside the order dated 31st March, 1989.
Having heard learned counsel for the parties, an adoption has to be established on the basis of the evidence on record. The first evidence which deserves to be considered is the adoption deed on which reliance has been placed by the authorities to believe that the petitioner had been adopted.
It would be appropriate to reproduce Section 16 of the Hindu Adoption and Maintenance Act, which is quoted hereinunder:-
"Section 16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
STATE AMENDMENT Uttar Pradesh Section 16 renumbered as sub-section (1) thereof and after sub-section (1) as so renumbered, the following sub-section (2) shall be inserted, namely:-
"(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:
Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872."
[Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 (U.P. Act 57 of 1976), sec. 35 (w.e.f. 1-1-1997).]"
According to the said provision the presumption in favour of such a document can be raised provided it is signed by the parties to the adoption including the parent or guardian of the child who is being given in adoption. To sum it appropriately, the document should be a bilateral document. The adoption deed which is on record and as admitted to the parties does not bear the signature of the natural father of the petitioner or any guardian of the petitioner. It does not indicate the presence of the parents of the petitioner or his guardian at the time of the execution or registration of the adoption deed. In my opinion, the legal presumption which is being claimed by the respondent Mahendra Singh under Section 16 of the Act would therefore be not available as the aforesaid ingredients are missing.
Learned counsel for the petitioner is therefore justified in placing reliance on the judgment of this Court in the case of Jay Prakash (supra) where it has been held that a legal presumption would be available only if it is a bilateral document and has been signed by the natural father of the child given in adoption.
To that extent the contention raised by Sri Mandhyan is correct that on account of the absence of the aforesaid ingredients the legal presumption under Section 16 could not be read in favour of the respondent. The impugned orders to that extent therefore do not apply the law correctly in respect of the adoption deed.
On the other hand Sri Verma for the respondent has relied on the statement of Raghuvar to contend that the adoption even otherwise had been carried out in accordance with the provisions of 1956 Act, and there is no serious challenge to this factum of adoption.
The aforesaid argument of Sri Verma that the statement of Reghuvar indicates adoption is correct but the factum of adoption has been challenged by the petitioner apart from the dispute about the validity of the adoption deed. It is also to be noted that the will executed on 10.11.1975 by Smt. Sheesh Kaur also does not indicate any reference to the adoption of the petitioner or the execution of the adoption deed. This aspect therefore also did create a doubt but instead of referring to this aspect of the matter the courts below have proceeded to doubt the execution of the will itself. In the opinion of the Court, no challenge was raised in any other proceeding to the will dated 10.11.1975 prior to the present dispute. To the contrary, the will executed by Sheesh Kaur was acted upon and Bhishm and the petitioner succeeded to the holding of Sheesh Kaur under the said will. The mutation in favour of the petitioner to the holding of Sheesh Kaur is not challenged and the respondent Mahendra Singh does not dispute this succession. He however raised a plea about the genuineness of the will dated 10.11.1975 in the present dispute which is in relation to the holding of Swaroop Lal. In my opinion, such a collateral challenge in these proceedings when the aforesaid will had been acted upon should have been dealt with in the light of the observations made hereinabove but the courts below have proceeded to doubt the genuineness of the will without there being any appreciation of evidence in this regard.
The other side of the coin is that the petitioner gets a larger share in the property as he inherits the holding of Sheesh Kaur and he now claims that he was never adopted by her so as to succeed to the property of his natural father.
The petitioner had appeared in the High School Examinations in the year 1968 where the name of his natural father has been shown. If he had been adopted by Munshi then the natural course would have been that the name of Munshi would have been referred to in the High School Certificate. In the opinion of the Court, this aspect should also have been considered while proceeding to believe the adoption of the petitioner.
Sri Verma has urged that the contents of the deed of adoption have not been challenged. This has to be considered by reading both the objections taken in this regard. Nonetheless, it is clear that the dispute was raised almost after 10 years of the mutation order having been passed in favour of the petitioner and the respondent Mahendra Singh. All these aspects had to be therefore viewed in order to arrive at a correct conclusion.
From a perusal of the impugned judgment, it is clear that a very heavy reliance has been placed on the adoption deed and the legal presumption in its favour under Section 16 of the Adoption Act as discussed hereinabove. The said legal presumption is not available for the reasons given hereinabove. In such a situation, where a heavy reliance has been placed on an unavailable legal presumption the order is vitiated and it cannot therefore be said with certainty that which of the other factors had weighed in the mind of the authorities to believe the adoption apart from the adoption deed. Accordingly, it would be appropriate that the matter is again decided by the Consolidation Officer who is the court of first instance as it relates to the issues of facts, namely, the fact of the alleged adoption of the petitioner without raising a legal presumption to believe the adoption deed.
Accordingly, the writ petition is partly allowed to the extent indicated hereinabove and the matter is remitted back to the Consolidation Officer to decide the matter afresh in the light of the observations made hereinabove within a period of three months from the date of presentation of a certified copy of this order before him as the matter is a very old one.
Dt. 29.3.2012 Sahu