Usha Mehra ( 1 ) APPELLANT felt aggrieved by the impugned order of the Rentcontrol Tribunal (in short the Tribunal) dated 11/10/1979. By the impugnedorder the Tribunal while reversing the order of the Additional Rent Controller (inshort the ARC) held that there did not exist any relationship of landlord/tenantbetween the appellant and the respondents. ( 2 ) THE questions for consideration in this appeal are (1) Whether respondentsare tenants in the property in question; (2) Whether the property in dispute wasbequeathed to Shri Hukanri Chand Jain by virtue of a Will and/or being the adoptedson of Smt. Droptidevi. (3) Whether Dropti Devi had no right to execute a Willbecause it is alleged that the property was alienated by her to a Trust by registeredtrust Deed. ( 3 ) IN order to determine the above questions, the brief facts of the case are thatrespondents Baldev Raj and Mohan Lal are residing in property bearing No. 771-772, Chabi Ganj, Kashmiri Gate, Delhi. The appellant herein Shri Jagdish Raiaggarwal purchased this property from Hukam Chand Jain stated to be the ownerand landlord of the property in question. The appellant filed eviction petitionagainst respondents hereinon 23/01/1963 on the ground that they haveacquired respondents have acquired vacant possession of their own houses and onthe ground that they damaged the property. The petition was filed under Section14 (1 ) (h) and (j) of the Delhi Rent Control Act (in short the Act), It was further the caseof the appellant that respondents were residing in the tenanted premises as subtenant of Mr. S. N. Bhatnagar who was the tenant in the suit property. It was Mr. Bhatnagar who inducted Mr. Baldev Raj as sub-tenant. Respondent No. 2 is thefather of respondent No. 1. After 20/02/1958 they became direct tenantsof the appellant i. e. his predecessor in interest. It was also pleaded that therespondents recognised, in earlier suit for ejectment filed by Hukam Chand Jain,that he was owner and landlord of the premises in question. After purchase of thisproperty by the appellants, they stepped into the shoes of Hukam Chand and thusbecame owner/landlord of the premises. The petition for eviction filed by theappellant against the present respondents was dismissed by the learned are sofar as relief of eviction under Section 14 (l) (h) and (j) are concerned. He, however,held that there existed relationship of landlord and tenant between the parties. The petition for eviction filed by theappellant against the present respondents was dismissed by the learned are sofar as relief of eviction under Section 14 (l) (h) and (j) are concerned. He, however,held that there existed relationship of landlord and tenant between the parties. Therespondents felt aggrieved with this finding of learned ARC, therefore, preferredan appeal. In the appeal as mentioned above, the Tribunal reversed these findings. ( 4 ) IN this appeal the point revolves around only on the issue of relationship ofthe parties. So far as respondents are concerned there is concurrent finding of boththe Courts i. e. of learned are as well as the Tribunal that respondens are tenantsin the premises in question. It is only the status of the appellant which is underquestion. At the outset it must be said that there is overwhelming evidence onrecord to show that Shri Hukam Chand Jain was the adopted son of late Smt. Droptidevi. But the Tribunal by a strange reasoning drew the presumption that adoptionof Hukam Chand Jain had not been proved. In fact a tenant has no right to challengethe adoption. But be that as it may, on merits also it can be said that Hukam Chandwas adopted son of Smt. Dropti Devi. ( 5 ) SHRI Hukam Chand Jain was Dropti Devi s sister s son, the propertybelonged to Shri Niranjan Dass husband of Dropti Devi. After his death Dropti Devibecame owner of this premises. She was issueless. Under the Jain s law a widowcould adopt a child. She accordingly adopted Hukam Chand Jain as her son. Hukamchand Jain appearing as AW 1 proved his adoption by staling that afterhaving beenadopted by Dropti Devi he changed his parentage i. e. his father s name fromchhuttan Lal to Niranjan Dass. This he proved by producing the voters list Ex. AW-4/12 to AW 4/14 wherein the name of his father had been shown as Niranjan Dassinstead of Chhuttan Lal. He also proved the cancellation of Power of Attorneywherein Dropti Devi declared him to be her son. Smt. Dropti Devi had executed ageneral Power of Attorney in favour of Shri Chhuttan Lal, real father of Hukamchand Jain. After Hukam Chand Jain s adoption in 1943, Smt. Dropti Devicancelled the said General Power of Attorney vide registered cancellation deeddated 18/05/1945, proved on record as Ex. A-7. The recital of Ex. Smt. Dropti Devi had executed ageneral Power of Attorney in favour of Shri Chhuttan Lal, real father of Hukamchand Jain. After Hukam Chand Jain s adoption in 1943, Smt. Dropti Devicancelled the said General Power of Attorney vide registered cancellation deeddated 18/05/1945, proved on record as Ex. A-7. The recital of Ex. A-7 showsthat Smt. Dropti Devi admitted Hukam Chand Jain to be her son. Smt. Dropti Devidied in 1953. The adoption took place in 1943 and deed of cancellation was executedin May, 1945. In 1945 nobody could have imagined that there would be a disputeregarding the adoption of Hukam Chand Jain. Therefore, statement made bydropti Devi, during her life-time in 1945 through Ex. A-7 thereby admitting thatshe adopted Hukam Chand Jain and hence cancelled the General Power of Attorneyin the name of Shri Chhuttan Lal, real father of Shri Hukam Chand Jain, cannot bebrushed aside as irrelevant document or a statement in favour of the deceased. Hence the reasoning given by the Tribunal in ignoring Ex. A-7 appears to be devoidof merits. The reasoning of the Tribunal is not only against facts but also against thelaw. How the statement made by deceased Smt. Dropti Devi in 1945 therebydeclaring Hukam Chand Jain to be her son can be called a statement in her ownfavour. This declaration vide Ex. A-7was made by her to be known by all concerned. She made this statement not in her favour but in favour of Hukam Chand Jain sothat people should know he was her son. Tribunal fell in error in ignoringdeclaration made by the deceased in 1945. Ex. A-7 is a registered document. Theauthenticity of the same is not in doubt and deserved serious consideration andweightage. Fact of adoption stood fortified by her cancellation of the General Powerof Attorney in favour of Shri Chhuttan Lal. Moreover, the evidence produced byhukam Chand Jain fully establishes his case that Smt. Dropti Devi adopted him. The evidence could not have been discarded by the Tribunal on the mereassumption that those were interested witnesses. In fact to prove or establish areligious ceremony like adoption or marriage, it is only the relations who can provethe same as they come to attend the functions. Therefore, when relations wereproduced who deposed that Hukam Chand Jain was adopted by Smt. Dropti Devi,the Tribunal on a strange surmises concluded that their evidence could not be reliedbecause they were interested witnesses. Therefore, when relations wereproduced who deposed that Hukam Chand Jain was adopted by Smt. Dropti Devi,the Tribunal on a strange surmises concluded that their evidence could not be reliedbecause they were interested witnesses. The Tribunal also disbelieved the witnessesbecause of minor discrepancies in their statements. One of the witnesses said 500people attended the ceremony of adoption, whereas other witnesses said therewere 50 people only. This discrepancy to my mind, occurred because witnesseswere examined after almost 30 years. The Tribunal ignored the fact that adoptiontook place in 1943, whereas the statements of the witnesses were recorded in 1970i. e. almost after 30 years. In the passage of time such discrepancies naturally creepsin. If the witnesses had been tutored or made up, their statements would have beenverbatim the same. But in the case of natural witnesses such minor discrepanciesdo occur. From the crossexamination of these witnesses, respondents could notelicit any material contradiction regarding the factum of adoption. Similarly, thetribunal by not believing the adoption merely on the ground that priest was notproduced, to my mind, misdirected himself. As already pointed out above theadoption took place in 1943, evidence was recorded in 1970. Whether that priestwss available or not there is nothing on record nor any question was asked abo. utthe same. Therefore, it was wrong on the part of the Tribunal to presume that in theabsence of producing the priest the adoption could not be proved or the testimonyof other witnesses who proved the adoption ceremony could not be believed. It wasnot a criminal trial that importance could not be attached to the interestedwitnesses. Ceremony of adoption or such like ceremonies are attended by therelations and it is they who are the best persons to speak. To my mind, the witnessesin no uncertain words proved the adoption. The observation of the Tribunal thatthe witnesses did not say specifically that Hukam Chand Jain was given in "goad"is devoid of merits because each of the witnesses produced by the appellant in nouncertain words stated that Hukam Chand Jain was taken in adoption by Smt. Dropti Devi. The ceremony in Jains could be as simple as putting a Turban. Adoption ceremoney in Jains is not the same as in Hindus. Hence the version ofthe witnesses proving adoption and adoption ceremony clearly show that Hukamchand Jain was adopted by Smt. Dropti Devi. Being a Jain widow under Jain s lawshe could legally adopt a child. The ceremony in Jains could be as simple as putting a Turban. Adoption ceremoney in Jains is not the same as in Hindus. Hence the version ofthe witnesses proving adoption and adoption ceremony clearly show that Hukamchand Jain was adopted by Smt. Dropti Devi. Being a Jain widow under Jain s lawshe could legally adopt a child. Similarly, the rejection of document Ex. A 7 bythe Tribunal on the ground that the same was executed much after the adoption,it appears that Tribunal overlooked the fact that Hukam Chand Jain was adoptedin 1943 and the cancellation of Power of Attorney in favour of his real father wasdone in 1945. Therefore, it cannot be said that the document Ex. A7 was executedaftermuch time, nor the registered document could be discarded on flimsy ground. Thus on the basis of the testimony of various witnesses coupled with Ex. A 7followed by entries in the electoral roll the only irresistible conclusion could bedrawn that Smt. Dropti Devi adopted Hukam Chand Jain. She treated him to beher son. Supreme Court in the case of M. Govindaraju v. K. Munshisami Goudner (D) and Ors. , reported in 1996 (VI) Apex Decision 548 held that if a person isconsidered as a son then there is a presumption that he is son of that particularperson. From the reading of Ex. A 7 it is clear that Dropti Devi considered Hukam ,chand to be her son. It has come on record that she performed the marriage ofhukam Chand treating him to he her son. Taking these factors into considerationand in view of the judgment of Supreme Court quoted above, the reasoning of thetribunal on this issue cannot be sustained. On the other hand, reasoning of thelearned are cannot be faulted. ( 6 ) NOW turning to the question of execution of Will by Smt. Dropti Devi infavour of Hukam Chand Jain. At the outset it must be stated that mere thumbmarking of a document instead of signing the same would not make that documentfake or forged. Moreover the reasoning of the Tribunal cannot be appreciated thatif Dropti Devi had adopted Hukam Chand Jain why she executed the Will in hisfavour. It must be understood that a parent is not debarred in executing "will" infavour of his or her own children. There is no such bar. Moreover the reasoning of the Tribunal cannot be appreciated thatif Dropti Devi had adopted Hukam Chand Jain why she executed the Will in hisfavour. It must be understood that a parent is not debarred in executing "will" infavour of his or her own children. There is no such bar. On the contrary in order toavoid future dispute parents do bequeath their properties in favour of theirchildren even if there is only one child. This the parents do in order to avoid anypossible dispute in future. Witnesses to the "will" proved the "will" having beenexecuted by late Smt. Dropti Devi. The reasoning of the Tribunal on this count alsocannot be sustained. It merits rejection. ( 7 ) HAVING said that Hukam Chand was adopted son of Smt . Dropti Devi andshe executed a "will" in his favour thereby bequeathing this property in hisfavour, we are left with one question to be answered. Whether by virtue of the Trustdeed purported to have been executed by Smt. Dropti Devi on 17/05/1918 and 19/11/1918 Hukam Chand had no right, title or interest in the property? Whether the Trust Deed was acted upon ? Was Smt. Dropti Devi debarred fromexecuting a "will"? Mr. B. S. Sehrawat appearing for the respondents contendedthat Smt. Dropti Devi alienated this property by virtue of registered Trust Deed infavour of Aggarwal Dharamshala. By virtue of this Deed the name of the Trust asowner of the property was mutated in the records of the Municipal Corporation. Even in the documents executed by Smt. Dropti Devi s brother it was mentionedthat Aggarwal Trust was the owner of this property. He described his property inwhich owner of this property was shown as Trust. According to Mr. Sehrawat,the Trust Deed was duly acted upon hence Smt. Dropti Devi could not execute a"will" subsequently bequeathing the same property to any one. She had alreadylost her title over the property. In fact Mr. Sehrawat has put forward the samereasoning to refute the claim of the appellant which have been given by the Tribunalin the impunged order. Before we dwell on this aspect of the matter, we mustunderstand the rights of a Hindu widow in respect of the estate of her deceasedhusband. Supreme Court in the case of Smt. Kamla Devi v. Bachulal Gupta, AIR1957 SC 434, laid down the principle regarding alienation of the estate of widow sdeceased husband for religious purposes. Before we dwell on this aspect of the matter, we mustunderstand the rights of a Hindu widow in respect of the estate of her deceasedhusband. Supreme Court in the case of Smt. Kamla Devi v. Bachulal Gupta, AIR1957 SC 434, laid down the principle regarding alienation of the estate of widow sdeceased husband for religious purposes. One of the principles was " (1) A Hinduwidow in possession of the estate of her deceased husband can make an alienationfor religious acts which are not essential or obligatory but are still pious observanceswhich conduce to the bliss of the deceased husband s soul. " The question forconsideration is, did Smt. Dropti Devi alienated the estate of her husband forreligious acts where were pious observances which conduced to the bliss of herdeceased husband s soul. She was entitled, as per the principles laid down inkamla Devi s case, to even sell the property in order to cover the expenses for thatpious act which conduce to the bliss of her deceased husband s soul, meaningthereby that the alienation of the deceased husband s property was supposed toconduce to the spiritual welfare of her husband. The spiritual benefit of herselfcould not be equated nor would mean acquiring spiritual benefit of her husband. Therefore, apparently unless it was established that the alienation in question wasfor the pious observances which conduce to the bliss of her husband s soul or forthe spiri tual benefit of her husband, she could not alienate the property for her ownspiritual benefits. The recital of the Trust Deed Ex. RW 1/1 to RW 1/2 shows thatalienation was not meant for the spiritual benefit of her husband. It was in her ownname and for her own benefit. Dharamshala was to run in her own name and notin the name of her husband. This as rightly contended by Mr. J. P. Gupta could nothave been done. I must mention that Iam not going to go into the merits anddemerits of the alienation in these proceedings. Suffice it to say that respondentbeing tenants had no right to challenge the Will or the adoption by Smt. Dropti Devi. The Trust deed had not been proved. The original was withheld and, to my mind,the Tribunal fell in error in drawing a presumption that the original must be inpossession of the appellant. No presumption of genuineness of certified copiescould be drawn without production of original. The Trust deed had not been proved. The original was withheld and, to my mind,the Tribunal fell in error in drawing a presumption that the original must be inpossession of the appellant. No presumption of genuineness of certified copiescould be drawn without production of original. From the certified copy thepresumption of document being genuine could not be drawn even if the documentwas 30 years old. Judgments relied by the Tribunal were of no help to respondent. In none of these cases Court was dealing with presumption of a certified copywithout original being summoned or produced. ( 8 ) PRACHIN Aggarwal Digambar Jain Dharamshala to whom it is alleged thatthe property was alienated filed a suit for declaration bearing Suit No. 21/64. Hukam Chand Jain, S. N. Bhatnagar and respondents were parties in that suit. Thesaid suit was dismissed vide Ex. AW-4/5 on the ground that mere suit fordeclaration was not maintainable and that relief for possession had to be incorporated. Trustees were ordered to amend the plaint so as to include the relief ofpossession. But the Trust never filed the amended plaint. The suit was accordinglydismissed for non-prosecution. The suit was never got revived till date. Trust sright stood extinguished under Order 2, Rule 2, CPC. Therefore, the reasoning ofthe Tribunal that the property stood alienated cannot be but the imagination of thetribunal. In view of Ex. AW 4/5 Trustees lost their right to prove their title in theproperty. The mere fact that for the period from 1947 to 1953 in the Municipalrecord the name of Dharamshala was entered does not prove that Trust Deed wasacted upon. If the Tribunal took the recording of Trust s name in Municipalcorporation record as a weighty factor then why he ignored on parity of reasoningthat since 1953 name of Hukam Chand appears in the Municipal record as ownerof the property in question. The property stood mutated in his name. Therefore,on parity of reasoning and on the basis of Municipal record it could not be said thatthe Trust Deed was acted upon at any stage either during the life-time of Droptidevi or thereafter. The fact remains that Dropti Devi had been collecting the rentduring her life-time and, thereafter, Hukam Chand Jain collected-the rent from Shris. N. Bhatnagar who was the main tenant in the property in question. The fact remains that Dropti Devi had been collecting the rentduring her life-time and, thereafter, Hukam Chand Jain collected-the rent from Shris. N. Bhatnagar who was the main tenant in the property in question. In the suit filedby the Trustees, they admitted that Shri S. N. Bhatnagar was the tenant in theproperty. The said Shri S. N. Bhatnagar in a suit filed by Hukam Chand Jainadmitted Mr. Hukam Chand Jain to be the owner/landlord of the property and,therefore, agreed to pay the rent to him. He also admitted that respondents werehis sub-tenants. In this view of the matter it was not correct on the part of thetribunal to hold that the Trust Deed was acted upon or that Smt. Dropti Devi couldnot execute a "will". ( 9 ) CONTENTION of Mr. Sehrawat that there was a judgment rendered by a Civilcourt and confirmed by an Additional District Judge, Delhi and further confirmedin appeal by the High Court of Delhi declaring that Shri Hukam Chand Jain wasneither the adopted son of Smt. Dropti Devinor the "will" allegedly executed by herwas genuine. Hence that judgment is a complete answer to this issue as thatclinched the issue. To my mid, this argument has no force and was rightly rejectedby the learned are as well as by the Tribunal. Both the Courts stated that thejudgment delivered by Mr. V. S. Aggarwal, Sub Judge on 24/11/1969 inthe cuse of Kundan lal v. Shiv Darshan, and confirmed by the Additional District Judgewould not be binding on the appellant as he was not a party in the said suit. Respondents having admitted that they are tenants in the property in question, andhukam Chand Jain being son of the owner Smt. Dropti Devi by virtue of adoptionas well as "will" executed by Smt. Dropti Devi became owner/landlord of thepremises. From him the appellant acquired the title. The learned are rightlyconcluded that there exists relationship of landlord and tenant between the parties. The observations of the Tribunal being not based on evidence available on record hence cannot be sustained. The impugned order is accordingly set aside.