Omprakash v. Govind — 1989 DIGILAW 412 (MP)

ORDER K.L. Shrivastava, J.- l. This appeal is directed against the order dated 18-7-1989 passed by the District Judge, Indore in Probate Case No. 12 of 1989 whereby the respondent's application under order 40, rule 1 read with section 151 of the Code of Civil Procedure, 1908 (for Short the Code') for appointment of receiver in respect of the subject-matter of the litigation has' been allowed. 2. Circumstances giving rise to the appeal are these. The deceased Dakhabai, widow of Narayanlal Jindal died on 5-1-89 at Indore. She owned considerable property, movables (loans, rents and deposits) and immovables. 3. The respondent Govind Agrawal, who is the son of Narayanlal Agrawal, the brother of the deceased Dakhabai Jindal filed a petition on 17-4-89 under section 376 of the Indian Succession Act, 1925 (for short 'the Succession Act') for grant of Probate or Letters of Administration on the basis of the will dated 9-12-88 alleged to be executed by the deceased Dakhabai. 4. The application under the Succession Act was opposed by the present appellant Omprakash Jindal on the ground that the will is a forged one. According to him, Nathulal Jindal was his natural father but Narayanlal Jindal, the husband of Dakhabai and the brother of the said Nathulal had adopted him. 5. The contention of the learned counsel for the appellant is that the deceased Dakhabai was resident of Indore and prior to her death she had been hospitalised here and even on the date of the alleged will she was under treatment and there are several circumstances indicating that the will is a suspicious document, one of the circumstances being that Dakhabai owned not five but six houses but in the will it has been mentioned that she owned only five houses. 6. It has also been submitted that for the first time it was on 21-1-89 that by advertisement in the Hindi Daily 'Dainik Bhaskar', Indore that the present respondent laid a claim to the property of Dakhabai. The advertisement though by a counsel, it has not been expressly stated therein that Dakhabai had executed any will as such in favour of the respondent. It has further been urged that in the publication dated 16-2-89, there is reference to a registered will but the will in question is not a registered one. The advertisement though by a counsel, it has not been expressly stated therein that Dakhabai had executed any will as such in favour of the respondent. It has further been urged that in the publication dated 16-2-89, there is reference to a registered will but the will in question is not a registered one. The fact that the mother of the respondent Govind Agrawal had lodged a criminal complaint (No. 614/82) against Dakhabai and a charge under section 406 I.P.C. was framed against her, has also been urged as a circumstance militating against the case set up by him. 7. Now as to the case of adoption set up by the appellant. According to the learned counsel for the appellant the fact that the appellant is the son of Narayanlal Jindal is quite clear as several years prior to the present controversy which is of the year 1989, on the death of the said Narayanlal Jindal in 1979, Pagdi was tied on the appellant's head and in his marriage invitation which is of the year 1983, he has been shown as the son of the said Narayanlal. It is further urged that on 5-2-88 Rs. 31,000/- were placed ' in the fixed deposit in the joint name of Dakhabai Narayanlal and the appellant Omprakash describing him as the son of Narayanlal and the amount was made payable to the former or survivor. 8. The contention of the learned counsel for the respondent is that the genuineness of the will in question is beyond doubt; it is signed by Dakhabai at several places and is attested by a Notary. According to the learned counsel, the several circumstances urged against its genuineness are of no consequence. It has been urged that though in the Pagdi ceremony Consequent on the death of Narayanlalji and Dakhabai, Pagdi was tied on the head of the appellant but it does not constitute any proof of the alleged adoption. 9. It is urged that in the application filed by Dakhabai in 1973 it has been stated that she is the sole heir of the deceased Narayanlal Jindal and in the voters list prepared for the year 1983 also the appellant has been shown as the son of his natural father Nathuji and so also in the year 1987 in the publication by Agrasen Youth Club, Indore. 10. 10. The point for consideration is whether the appeal deserves to be allowed. 11. Appointment of receiver under order 40, rule 1 of the Code is essentially on equitable grounds and as pointed out in Sugnibai's case 1982 MPWN 245 , the question of justness and convenience contemplated under the provision has to be determined with reference to the facts and circumstances of the case and with due regards to the rights of the parties to the proceedings. 12. Where it is shown that the property in dispute is in the danger of being wasted away or damaged order 40, rule 1 of the Code provides for appointment of receiver. The appointment of receiver is one of the harshest remedies known to law and as it virtually results in dispossession, the party applying for it has to show that he has a strong case and prima facie title to the property. As to the principles relating to appointment of receiver, reference may usefully be made to the decision in Abdul Salim Qureshi's case 1983 MPLJ-SN 35 13. The general ground for appointment of receiver, pending a judicial determination of this rival claims of the contending parties, is the protection or preservation of property for the benefit of the persons who have interest in it. 14. It may be pointed out that the provision in order 40, rule 1(b) of the Code investing the Court with the discretion to remove any person from possession or custody of the property is subject to the provision in sub-rule (2) of rule 1 according to which the Court has no power to deprive a third person of the possession of any property when no party to the suit has a present right to do so. Reference in this connetion may usefully be made to the decisions in Bhavaniram's case AIR 1955 MB 199, Prahlad Prasad's case AIR 1956 Pat. 233 and Hiralal Patni's case AIR 1962 SC 21 . 15. As pointed out in the decision in Gopinath's case AIR 1953 Nag. 316, the question of title is foreign to the probate proceedings. The question of appellant's adoption is only relevant for determining the respondent's claim for probate. 233 and Hiralal Patni's case AIR 1962 SC 21 . 15. As pointed out in the decision in Gopinath's case AIR 1953 Nag. 316, the question of title is foreign to the probate proceedings. The question of appellant's adoption is only relevant for determining the respondent's claim for probate. The propounder of a will has only to prove the execution of the will and the testamentary capacity of the testator by allaying all suspicions and to the satisfaction of the Court's conscience as laid down in the decision in Smt. Indu Bala's case AIR 1982 SC 133 . 16. Adoption and will both have the effect of diverting the normal and natural course of succession and, therefore, heavy burden lies on the party setting up either. As pointed out in the decision in Madhusudun Das's case AIR 1983 SC 114 , factum of adoption and its validity have both to be proved as any other fact. The following observations in the decision in Rahasa Pandiani's case AIR 1987 SC 962 , are apposite ;- "When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concoeting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place." 17. As laid down in the decision in Raghavamma's case AIR 1964 SC 136 , the burden of proof never shift but onus of proof shifts and such shifting of onus is a continuous process in the evaluation of evidence. 18. It may be noted that performance of funeral rites and the performance of the marriage of the son alleged to have been taken in adoption may support the adoption but they cannot sustain it. Reference in this connection may usefully be made to the decision in Kishori Lal's case AIR 1959 SC 962. The decision also deals with admission and its effect on burden of proof and the relevant observations therein are as under:- "The performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it perfectly valid. For the performance of these rites frequently varies according to the circumstances of each case and the view and the usage of different families. The evidence given in the case may show that in the absence of the son junior relations like a younger brother or a younger nephew performs the obsequial ceremonies.... ... .............. .. ....... .. So also, the performance of the marriage of the Son alleged to have been taken in adoption itself does not prove adoption, which is otherwise disproved. As a circumstance supporting the inference of adoption set up by' such a son it is wholly neutral." 19. In the decision in Gopinath's case (supra), with reference to section 283 of the Succession Act and section 63 it has been pointed out that a scribe not signing or attesting the will as a scribe is not a circumstance against the genuineness of the will. Therein it has been observed as under:- "If the will is really not genuine the scribe would almost certainly be compelled to sign as an attesting witness so that he may be fixed to support the will and not betray his employer." 20. Therein it has been observed as under:- "If the will is really not genuine the scribe would almost certainly be compelled to sign as an attesting witness so that he may be fixed to support the will and not betray his employer." 20. In the instant case, it has to be remembered that neither of the parties is, in the normal and natural course, entitled to the property in dispute. The claim of the appellant is founded on adoption and that of the respondent is founded on will. The major portion of the immovable property is not in the appellant's actual possession but in the possession of tenants and the movables consist of deposits, loans and rental arrears. It is the Court's duty to see that the property goes to the rightful claimant. 21. It is not without significance that there is no document evidencing the adoption which allegedly took place in 1972. Further, when no dispute of any kind was in sight in the year 1973, Dakhabai claimed herself to be the sole legal representative of her husband. This indeed is a weighty circumstance against the case of adoption set up by the appellant. 22. Even on the assumption that the appellant was adopted in 1972, Dakhabai could execute a will in respect of her property. 23 The contention that as appointment of receiver is one of the harshest remedies known to law, the impugned order deserves to be set aside and if considered proper, necessary conditions with a view to safeguard the respondent's interest in the property in the event of his ultimate success, may be imposed, does not in the circumstances merit consideration. 24. On a cumulative consideration of the facts and circumstances of the case, it appears that apart from the fact as to whether or not the will is genuine, the case of adoption set-up by the appellant is on weaker foundation and he is not entitled to remain in possession of the property. He cannot seek shelter under the provision of order 40, rule 1(2) of the Code which is meant for third party. 25. He cannot seek shelter under the provision of order 40, rule 1(2) of the Code which is meant for third party. 25. As already pointed out, the general ground on which receiver is appointed is the protection or preservation of property for the benefit of persons who have interest in it and unless it is found that the discretion vested in words of wide amplitude, has not been exercised on well established principles of law, interferences with the discretionary order under order 40 rule 1 of the Code cannot successfully be claimed. Reference in this connection may be made to the decision in Bachhraj Bhandari Trust's case AIR 1955 MB 40. 26. In the ultimate analysis I find that the impugned order does not call for interference. 27. For the foregoing reasons, the appeal fails and is dismissed with costs. Counsel's fee Rs. 100/-. if certified.