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2005 DIGILAW 765 (PNJ)

Raghbir Singh v. Satpal

2005-07-21

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of the facts recorded by both the Courts below holding that the defendant-appellant who was the adopted son of Bhawani could not have inherited the property of his natural parents Bakhtawar and Champa. The mutation deed being mutation No. 1255 sanctioned in his [avow on 20.10.1985 and mutation No. 1584 sanctioned on 17.10.1995 have also been held ,to be illegal, null and void. The entries of those mutations have also been held to be not binding on the rights of the plaintiff-respondents. 2. The plaintiff-respondents filed civil suit on 13.10.1998 for a declaration with consequential relief of permanent injunction and in the alternative for joint possession of the suit property being legal representatives of deceased Bakthawar Singh asserting that the defendant-appellant had no right, title and interest in that property.The mutations dated 25.10.1985 and 17.10.1995 were also challenged being illegal, null and void and not binding on the rights of the plaintiff-respondent. Consequential relief of injunction for restraining the defendant-appellant from dispossessing the plaintiff from the suit property and also from alienating the same or changing its nature was also prayed. It was alleged that Bhagwani widow of Prem Singh had adopted Raghbir Singh, defendant-appellant son of Bakhtawar vide adoption deed executed and registered on 26.3.1963.The defendant-appellant obtained a decree against his adopted mother by filing a civil suit in his favour in respect of the property situated in village Sihi and village Sikenchrpur Badha. Civil Suit No. 397 dated 7.6.1994 titled as Raghbir Singh V/s. Bhagwani was decreed. Accordingly, the defendant-appellant was left with no right, title or interest in the property of deceased Bakhtawar as his son from Smt. Champa who was widow of Bakhtawar.lt is alleged that the plaintiff-respondents carne to know about the illegal and fraudulent sanction of mutation of inheritance of Bakhtawar by the defendant-appellant which was got sanctioned on 25.10.1985 being mutation No. 1255. After the death of Champa, the real mother of the defendant-appellant, he fraudulently obtained sanction to mutation of inheritance on 17.10.1995 in his favour to the extent of 1/6th share. 3. After the death of Champa, the real mother of the defendant-appellant, he fraudulently obtained sanction to mutation of inheritance on 17.10.1995 in his favour to the extent of 1/6th share. 3. The defendant-appellant also took the stand that he has been in continuous possession of the suit land since the date of mutation i.e. 1985 for more than 12 years openly, peacefully and in a hostile manner apart from raising number of other preliminary objections. It was further alleged that the plaintiff-defendants were co-sharers in possession of half share of land left by Bakhtawar as the land was ancestral in his hands. The defendant-appellant and Bakhtawar alongwith other sons constituted a joint Hindu family and being coparcenary property defendant-appellant is asserted to have acquired right by birth which could not be defeated by adoption. The factum of adoption by Bhagwani and her husband was admitted. !t was also admitted that defendant obtained decree of half share of the land which was owned by Bhagwani in the civil Court decree dated 7.6.1994. 4. With regard to mutations it was claimed that the mutations are valid and binding and that the defendant-appellant had been cultivating his portion of the land inherited from Bakhtawar. 5. The trial Court posed the question as to whether the efendantappellant, who has been adopted son of Bhagwani, could inherit the property of his natural parents Bakhtawar and Champa. Placing reliance on a judgment of this Court in the case of Dharamvir Singh and Ors. V/s. Roop Ram and Ors., 2004(2) C.C.C. 341, the trial Court held that the adopted son loses the right to have any share in the property of his natural ancestors or father. The mutations Ex.P-4 and P-5 dated 25.10.1985 and 17.10.1995 respectively have also been held to be illegal, null and void and were not binding on the rights of the plaintiff-respondent. 6. With regard to limitation the trial Court held that the mutations which were sanctioned in the year 1985 and 1995 could be challenged in the suit filed on 13.10.1998 because the plaintiff-respondent filed the suit immediately after acquiring knowledge about those mutations. The plea of adverse possession set up by the defendant appellants was rejected on the basis of jamabandi Ex.P-8for the year 1999-2000 showing that the suit land was joint. In the column of possession, the entry is that possession is of coowner. The plea of adverse possession set up by the defendant appellants was rejected on the basis of jamabandi Ex.P-8for the year 1999-2000 showing that the suit land was joint. In the column of possession, the entry is that possession is of coowner. On the basis of the judgment of the Supreme Court in the case of Deva V/s. Sajjan Kumar,2 2004(2) S.C.C. 31, it has been held that wrong possession of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff-respondents cannot result in acquisition of title by adverse possession. Even otherwise there was no evidence provirfg that the defendant-appellant had acquired title by adverse possession or was asserting open hostile title except his own solitary statement. The various ingredients of adverse possession proving the ouster of a co has been as laid down in Mohd. Ali V/s. Jagdish Kalita and Ors., , which have been found waived. 7. The lower appellate Court affirmed the finding recorded by the trial Court and found that the appeal was hopelessly time barred and no satisfactory explanation regarding delay in filing the appeal was furnished. The plea of adoption under custom raised before the lower appellate Court has also been rejected by observing as under: "It is worth pointing out that the defendant/appellant in his pleadings has not raised the plea that he was adopted under custom. Even no such plea was raised before the learned trial Court. Therefore, he cannot be allowed to raise this plea for the first time in appeal. Moreover, the appellant told his age as DW-1 85 years, but, in his affidavit filed alongwith the application for condonation of- delay, he has mentioned his age as 75 years. Therefore, under such a situation, it cannot be said that the appellant was more than 15 years at the time of adoption. Even if, it is considered that: the plaintiff was more than 15 years of age at the time of adoption, then also, it cannot be said that he was adopted under custom. Section 10(iv) is regarding relaxation of age for an adoption in case of such custom or usage applicable to the parties. Thus, the custom regarding age could only be considered, but that does not indicate in any manner that the adoption of the defendant/appellant was under custom and not under Hindu Law. Section 10(iv) is regarding relaxation of age for an adoption in case of such custom or usage applicable to the parties. Thus, the custom regarding age could only be considered, but that does not indicate in any manner that the adoption of the defendant/appellant was under custom and not under Hindu Law. Section 10(iv) shows that adoption is to be considered under Hindu Law, even if, as per custom the adoptive child is more than 15 years of age. In view of the provisions of Section 4(a), there could be no adoption under custom after commencement of the Act. Furthermore, there is no evidence regarding custom of adoption and that the adoption of the defendant/appellant as under custom. Therefore, looking from any angle the defendant/appellant cannot claim any right in the property of his natural father. As the adoption of the defendant/appellant was not. under custom, the authorities cited on his behalf are not applicable to the facts of the present case." 8. Shri Vinod Sharma, learned counsel for the defendant-appellant has argued that the judgment of this Court in the case of Dharmvir Singh (supra) has failed to take into account the provisions of Section 12(b) of the Hindu Adoption and Maintenance Act, 1956 (for brevity the Act). According to the learned counsel the afore provision contemplates that if any property which has vested in the child before adoption has to continue to vest in such a child. Learned counsel has maintained that had those provisions been taken into account then the judgment of this Court in Dharamvir Singhs case (supra) would have been entirely different. The learned counsel has further argued that the findings of the Courts below that mutations dated 25.10.1985 and 17.10.1995 are null and void and no period of limitation is provided for a void order, could also not be sustained because even for a void order the period of three years has now been prescribed by the judgment of the Supreme Court in the case of State of Punjab V/s. Gurdev Singhs . The last submission of the learned counsel is that in any case the appeal of the defendant-appellant could not be dismissed by the lower appellant Court on the ground that it was barred by limitation. 9. The last submission of the learned counsel is that in any case the appeal of the defendant-appellant could not be dismissed by the lower appellant Court on the ground that it was barred by limitation. 9. Having heard the learned counsel at a considerable length, I am of the considered view that there is no merit in this appeal as no question of law warranting its admission had been raised. On the bare perusal of Section 12 of the Act it is patent that an adopted child is deemed to be the child of his/her father/mother for all purposes with effect from the date of the adoption. The ties in the family of his/her birth are deemed to be severed and replaced by those created by the adoptive family. Section 12 of the Act reads as under: "12. Effects of adoption.- Ad adopted child shall be deemed to be child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date till all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoptive family: Provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property, which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption." A perusal of proviso (b) of Section 12 of the Act would show that any property which has come to be vested in the child before adoption would continue to vest in the child so adopted. The afore-mentioned question would be academic for deciding the instant appeal because the defendant-appellant has set up no claim in his pleadings that he acquired any vested right before the execution of the adoption deed dated 26.3.1963. It is admitted fact that natural parents of the defendant-appellant namely Bakhtawar and Champa had died much after the execution of the adoption deed. It is admitted fact that natural parents of the defendant-appellant namely Bakhtawar and Champa had died much after the execution of the adoption deed. The question of inheritance of the estate of natural parents in any case could not arise because the succession did not open till their death and by that the defendant-appellant had gone in adoption. Therefore, there is no question of vesting of any proprietary or inheritable right. Viewed from the aforementioned angle non-consideration of the proviso (b) of Section 12 of the Act in Dharamvir Singhs case (supra) would not have any effect on the ratio of the judgment. 10. I am further of the view that the principal Clause of Section 12 of the Act itself apply to the facts of the instant case to conclude that the defendant is deemed to have severed all his ties and relations with his natural parents and is deemed to be the child of his adoptive father/mother. There is no room to doubt the afore position of law. 11. The period of limitation in such like cases is not to be counted from the date mutation has been sanctioned but it has to be counted from the date of knowledge of sanctioning mutation. It has been found by the trial Court as affirmed by the lower appellate Court that the suit has been filed immediately after acquiring the knowledge of sanctioning of mutation. In this regard reliance may be placed on Article 59 of the Schedule appended to Limitation Act, 1963 which provides for setting aside an instrument. In this regard reference may be made to the observations made by the trial Court in para 15 which reads as under: "Even otherwise, plaintiff when appeared in the witness box made a categoric statement that he learnt about the mutations when the defendant threatened them and disclosed that mutation had been entered in his favour. Further, he clarified that threat was extended in the month of May, 1998. There is no rebuttal to the statement and it has to be concluded that the suit was filed within three years from date of knowledge of sanction of mutation. The suit is within time. This issue is answered against the defendant." 12. Furthermore the plaintiff-respondents have continued to be in possession and there are concurrent findings on the afore-mentioned issue by both the Courts below against the defendant-appellant. The suit is within time. This issue is answered against the defendant." 12. Furthermore the plaintiff-respondents have continued to be in possession and there are concurrent findings on the afore-mentioned issue by both the Courts below against the defendant-appellant. The defendant-appellant has also obtained decree in his favour on 1.10.1994 in Civil Suit No. 397 of 7.10.1994 in respect of the property of his adoptive mother Smt. Bhagwani. Therefore, defendant-appellant cannot be held entitled to benefits from the estate of both the parents adoptive as well as the natural. Therefore, there is no merit in the appeal as no question of law has been raised which is sine qua non under Section 100 of the Code. For the reasons recorded above, this appeal fails and the same is dismissed.