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2000 DIGILAW 1206 (RAJ)

Bharat Singh v. Bharat Kumar

2000-09-25

V.S.KOKJE

body2000
JUDGMENT 1. - Heard Shri G.K. Garg, for the revision petitioner and Shri B.L. Mandhana, for the non-petitioner. 2. The non-petitioner had filed a suit against one Girraj Singh son of Gopal Singh. The suit was decreed by the trial court and hence, Girraj Singh filed an appeal in the District Court. During the pendency of this appeal, on 18.12.94, the said Girraj Singh died. On 5.1.95, the revision petitioner Bharat Singh son of Bahadur Singh filed an application under Order 22 Rule 3 Civil Procedure Code for being substituted in place of Girraj Singh as appellant, claiming to be the heir and successor of late Girraj Singh. The prayer was rejected on 13.9.95 by the appellate court, against which S.B. Civil Revision Petition No. 1181/95 was filed in this Court. On 10.9.96, the revision petition was allowed and it was directed that the appellate court shall decide the application under Order 22 Rule 3 Civil Procedure Code after getting a finding recorded by the trial court after an enquiry conducted by the trial court. The appellate court in compliance with the order directed the trial court to conduct the enquiry and return the finding; and the trial court after enquiry, passed an order dated 15.10.97 recording a finding that the revision petitioner Bharat Singh son of Bahadur Singh was legal representative of late Girraj Singh and sent this finding to the appellate court. 3. The finding of the trial court was contested by the non-petitioners before the appellate court and the appellate court, disagreeing with the finding rejected the application under Order 22 Rule 3 Civil Procedure Code. This order of the appellate court is under challenge in this revision petition. 4. Preliminary objections to the maintainability of the revision petition were raised at an earlier stage of this revision petition. But at the hearing the objections were abandoned and it was conceded that this revision petition is competent and entertainable. I am therefore not going into that question. 5. It was also not disputed by the learned counsel for the non- petitioners that the findings of the trial court were not binding on the appellate court and the appellate court was not sitting in appeal over the findings of the trial court. I am therefore not going into that question. 5. It was also not disputed by the learned counsel for the non- petitioners that the findings of the trial court were not binding on the appellate court and the appellate court was not sitting in appeal over the findings of the trial court. It is settled position of law that when findings are called after an enquiry under Order 22 Rule 5 Civil Procedure Code from the lower court, the appellate court is not bound by those findings and the appellate court has to decide the application under Order 22 Rule 3 or 4 Civil Procedure Code on its own though after taking into consideration the findings and the evidence recorded during the enquiry. 6. The main question to be determined in this case therefore, is whether the appellate court has committed material irregularity in the exercise of its jurisdiction in deciding the application under Order 22 Rule 3 Civil Procedure Code. 7. It was contended by the learned counsel for the petitioner that for continuation of the appeal, the revision petitioner has to show that he fell in the definition of 'tenant' in Section 3 clause (vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (in short the 'Act'). It was contended that when it was proved that the revision petitioner was heir of the deceased appellant, being his nephew, who was carrying on business with him as a member of his family, he had to be taken as the legal representative who could continue the appeal. On the other hand, learned counsel for the non-petitioners contended that from the record of the enquiry under Order 22 Rule 5 Civil Procedure Code it was clear that the petitioner could not have been taken to be the nephew of the deceased appellant as the deceased had gone in adoption in some other family and all his connections with the family of his birth were legally severed. It was also contended that it has not been proved in the enquiry that the petitioner was carrying on business with the deceased as a member of his family. 8. I have heard learned counsel and have perused the copies of the application and the statements recorded at the enquiry as also the documents produced at the enquiry which were produced during the course of hearing, for my inspection, by the parties. 8. I have heard learned counsel and have perused the copies of the application and the statements recorded at the enquiry as also the documents produced at the enquiry which were produced during the course of hearing, for my inspection, by the parties. It is common ground that the application under Order 22 Rule 3 Civil Procedure Code could have been allowed only if the petitioner fell in the definition of 'tenant' in Section 3(vii) of the Act. The provision reads as under: "Tenant" means:- (a) ............. (b) in the event of death of the person as is referred to in sub-clause (a) his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, or ordinarily carrying on business with him in such premises as member of his family upto his death." 9. It is clear from the above definition that for the purposes of clause (b) of Section 3 (vii) of the Act it is essential to prove, for any person claiming to be a tenant after the death of the original tenant, that he is spouse, son, daughter or other heir in accordance with the personal law applicable to the original tenant and that he had been ordinarily carrying on business with him in the suit premises as member of his family upto his death. The revision petitioner in the present case claims to be an heir of the deceased tenant being his nephew i.e. son of the brother of the deceased. This is seriously disputed by the non-petitioner who has pointed out that the revision petitioner himself has stated in his deposition that Girraj Singh had no son and he was treating the revision petitioner as his own son. The revision petitioner himself had produced in his evidence a Will (Ex.5) stated to be executed by Girraj Singh in which Girraj Singh had described himself as adopted son of one Gopal Singh. It has been categorically stated in the Will that Girraj Singh had gone in adoption to Gopal Singh son of Raja Karan Mukul Singh on 24.2.54 and his natural father Vijay Singh had given him in adoption. It has been categorically stated in the Will that Girraj Singh had gone in adoption to Gopal Singh son of Raja Karan Mukul Singh on 24.2.54 and his natural father Vijay Singh had given him in adoption. There is no dispute that the revision petitioner was claiming the relationship with Girraj Singh on the basis of his being son of natural brother of Girraj Singh (deceased) and not as an heir through the family of adoption. Learned counsel for the non-petitioner submitted that the effect of adoption of Girraj Singh would be that his relations with the family of his birth would be totally severed and by a deeming fiction, he will be taken to have born in the family of his adoption. That being so, it was contended that the revision petitioner cannot claim to be an heir of the deceased Girraj Singh. 10. There is no dispute that the personal law of succession applied to the parties will be the Hindu Succession Act, 1956 (in short 'the Act of 1956'), Section 3(i)(f) whereof defines 'heir' to mean any person, male or female, who is entitled to succeed to the property of an intestate under this Act. Section 8 of the Act of 1956 provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in Class I of the Schedule; secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; thirdly if there is no heir of any of the two classes, then upon the agnates of the deceased; and lastly, if there is no agnate, then upon the cognates of the deceased. The relationship claimed by the petitioner is through the natural brother of the deceased. Because of the adoption, the relationship of 'uncle' of the petitioner himself, who had gone in adoption, was severed from his natural brother and therefore, the revision petitioner cannot claim to be an heir of the deceased tenant being son of his natural brother. 11. In Mulla's Principles of Hindu Law, the result of Dattak Adoption has been discussed. According to old Hindu Law, adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. 11. In Mulla's Principles of Hindu Law, the result of Dattak Adoption has been discussed. According to old Hindu Law, adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adopted the same rights and privileges in the family of the adopter as the legitimate son, except in a few cases relating to marriage and adoption and to the share on a partition between an adopted and an after-born son. But while the adopted son acquires the rights of a son in the adoptive family, he looses 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 is based on the text of Manu (Chapter IX verse 142). 12. In (1) East End Dwelling Co. Ltd. V. Finsbury Burrow Council (1952) A.C. 109 and (2) State of Bombay V. Pandurang (1953) SCR 773 it was observed that the primary and the principal result of adoption is that of transferring the adopted boy or girl from his or her 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 natural born son or daughter for all purposes with effect from the date of adoption. The adoptee is to be deemed to be the child of his or her adoptive 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 the adoption in the adoptive family. 13. In the aforesaid circumstances, it is clear that the petitioner cannot claim to be an heir of Girraj Singh under the Act of 1956. 14. 13. In the aforesaid circumstances, it is clear that the petitioner cannot claim to be an heir of Girraj Singh under the Act of 1956. 14. Since it is necessary for continuation of tenancy that the person claiming to be the tenant in place of the original deceased tenant should be an heir as well as a person carrying on business as member of the family with the deceased in the premises and as it has been found that the revision petitioner was not an heir of the deceased tenant, it is not necessary to decide the question whether he was carrying on business as member of the family in the suit premises along with the deceased. The revision petition must fail as the petitioner has not been able to prove that he is an heir of deceased Girraj Singh. The application under Order 22 Rule 3 Civil Procedure Code has therefore, rightly been rejected.The revision petition is dismissed.Revision Dismissed. *******