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2010 DIGILAW 369 (JK)

Durga Dass v. Om Parkash

2010-07-01

J.P.Singh

body2010
1. Appellant-Durga Dass filed a Civil Suit for Declaration that he was entitled to 1/4th share in land measuring 43 kanals 17 marlas comprised in Khasra Nos. 266, 351, 479, 480, 496, 497, 507, 504 min, 539 min, 586 min, 694, 745 min, 818 min, 976/526, 977/209, 980/594, 275 & 471 of Khewat No. 28 and about 13 kanals comprised in Khasra Nos. 523, 527, 30, 400, 693, 909, 910, 661 and 351 of Khewat No. 63 situated at Village Tarore Tehsil Samba; with consequential relief of Permanent Prohibitory Injunction restraining the respondents from withdrawing the compensation thereof from the Revenue Authorities, And for Partition and Separation of his share on the ground that Dina Nath, his father, had no right to devise, by Will, the coparcenary property in favour of his other brothers. 2. Disputing that the land in question was coparcenary property, the respondents contested the appellant’s Suit on the ground that having been adopted from his childhood by Kukkan, the real brother of Dina Nath, the appellant had no right, title or interest in the property inherited by Dina Nath and Kukkan, from their father Mathara Dass, which stood partitioned by them during their life time. 3. Besides the preliminary issues, the parties to the Suit were put to the following issues:- 1. Whether the plaintiff is entitled to 1/4th share in the property left by Dina Nath situated at Throre? O.P.P 2. Whether the property, subject matter in question, is coparcenary property between the plaintiff and defendant Nos.1 & 2 as well as Dina Nath? O.P.P 3. Whether the plaintiff is an adopted son of Kukkan and is not entitled to inherit the property of Dina Nath? O.P.D 4. Whether the plaintiff is entitled to partition and get his share? O.P.P 5. Whether Dina Nath has not executed the Will and the Will is forged? O.P.P 4. Besides him, the appellant examined Sardhu Ram and Ghulam Rasool Patwari as his witnesses, whereas the respondents produced Dayawanti, Kukkan’s daughter, besides Chaman Lal and one of the respondents as their witnesses, to support their defence. 5. On appreciation of evidence led by the parties, the trial Court came to the conclusion that the appellant was the adopted son of Kukkan and thus disentitled to the property left by his father-Dina Nath. 5. On appreciation of evidence led by the parties, the trial Court came to the conclusion that the appellant was the adopted son of Kukkan and thus disentitled to the property left by his father-Dina Nath. It further found that Dina Nath and Kukkan, had partitioned their ancestor-Mathara Dass’s property during their life time and were in possession thereof in exercise of their individual rights, to the exclusion of each other, at the time of their death. 6. Returning its findings on the issues framed in the case, the appellant’s Suit was, therefore, dismissed by learned Ist Additional District Judge, Jammu, the trial Court, on 11.05.2001. 7. The appellant has filed this Appeal questioning the trial Court’s Decree, Judgment and Findings. 8. As the appellant had not been allowed opportunity to rebut the evidence led by the respondents to prove that he was the adopted son of Kukkan, the findings of the trial Court on issue No.3 were set aside remitting the case to the trial Court for fresh finding after affording opportunity to the parties to lead such evidence as they may produce in support of their respective pleas. 9. The appellant produced Hans Raj, Sanjay Kumar and Ramesh Kumar as his witnesses, besides placing on records Gift Deed of October 04, 1962 registered on October 05, 1962, executed by Kukkan in his favour, in original, the copies of the Final Electoral Rolls of 1951 & 1975 bearing entry of Dina Nath as one of the voters, the Record of Rights of 1958-1959 and his School Leaving Certificate, to rebut the respondents’ plea that he was the adopted son of Kukkan. The respondents produced Bhushan Chouhan, Ram Lal and Baldev Raj as their witnesses. 10. On appreciation of the oral and documentary evidence on the issue, the trial Court re-affirmed its finding on Issue No.3 holding that the appellant was the adopted son of Kukkan and had succeeded to his estate. 11. Questioning the findings of the trial Court on Issue No.3, appellant’s learned counsel, Shri S.D.Sharma, relied heavily on the Gift Deed to buttress his submission that having led no sustainable evidence to prove the actual giving and taking of appellant in adoption and the ceremonies requisite therefor, the appellant could not be held to be the adopted son of Kukkan. Questioning the findings of the trial Court on Issue No.3, appellant’s learned counsel, Shri S.D.Sharma, relied heavily on the Gift Deed to buttress his submission that having led no sustainable evidence to prove the actual giving and taking of appellant in adoption and the ceremonies requisite therefor, the appellant could not be held to be the adopted son of Kukkan. He submitted that the Gift Deed being more than thirty years old document, carried presumption under the Evidence Act, which when taken into consideration, goes a long way to establish that the appellant had all along been treated as Dina Nath’s son and not the adopted son of Kukkan, thereby negating the respondents’ plea that Kukkan had adopted him. Learned counsel submitted that statement of Dayawanti, Kukkan’s real daughter, was unworthy of credence and no reliance thereon could, in law, be placed to hold that the appellant was the adopted son of Kukkan. 12. Per contra, Shri L.K.Sharma, respondents’ learned counsel, submitted that the respondents had proved the execution of Dina Nath’s Will, a document where the appellant’s natural father Dina Nath had admitted and acknowledged the appellant to have been given in adoption to Kukkan, his real brother since his childhood, and that even otherwise there was enough evidence on records to prove that right from his childhood, the appellant had all along been treated as adopted son of Kukkan, which proved his adoption as such. Learned counsel submitted that Kukkan had gifted all his immovable property, during his life time to the appellant only because he had accepted him as his adopted son. According to him, having been proved to be the adopted son of Kukkan, the appellant had lost all his rights in the family and properties of his natural father and the Decree of dismissal passed by the trial Court did not warrant interference. 13. I have considered the submissions of the learned counsel for the parties and perused the documents on which much reliance was placed by them to support their respective submissions. 14. 13. I have considered the submissions of the learned counsel for the parties and perused the documents on which much reliance was placed by them to support their respective submissions. 14. Learned counsel for the parties concentrated their submissions on the sole question as to whether or not the appellant was the adopted son of Kukkan, And rightly so, in that, in view of the evidence led by the parties in the case, the determination of the rights of the parties in the Suit property, revolves around the question about appellant’s adoption or otherwise by Kukkan. 15. Before dealing with the question aforementioned, it needs to be examined as to whether the respondents have proved the execution of Will dated January 19, 1969 executed by Dina Nath, on the basis whereof, they want the Court to hold the appellant as the adopted son of Kukkan. 16. To prove the execution of the Will, the respondents had initially relied on the statement of Om Parkash, one of the respondents, who had identified the signatures of his father on the Will, but later, they supplemented their evidence by examining Bhushan Chouhan, the son of the Petition Writer, who had scribed the Will. Bhushan Chouhan has identified his deceased father’s writing on the Will as its scribe. 17. As against this evidence of the respondents, the appellant has not led any evidence to disprove the execution of the Will. Not only that, when the Will was read over and explained to the appellant during his cross-examination, he admitted its contents to be true and correct. 18. Perusal of the statement of the appellant indicates that while not denying the execution of the Will by his natural father, all that he had said in this respect was that his father had no right to execute the Will in respect of the Suit Property which, according to him, was coparcenary property and that he had come to know about the Will and about his adoption by Kukkan indicated therein, after the death of his father. 19. The evidence led by the respondents to prove the execution of the Will has thus remained unchallenged and un-controverted by the appellant. 20. 19. The evidence led by the respondents to prove the execution of the Will has thus remained unchallenged and un-controverted by the appellant. 20. Taking into consideration the appellant’s statement not denying the execution of the Will and the evidence which the respondents have produced in proof thereof, it may be safely concluded that the respondents have proved the execution of Will, a registered document, as required under Sections 67 & 72 of the Jammu and Kashmir Evidence Act, Svt. 1977. 21. The Will having been thus proved by the respondents; its contents need to be examined to appreciate the statement appearing therein about the appellant’s adoption. 22. It is indicated in the Will by the appellant’s natural father, Dina Nath that the appellant had been adopted by his elder brother Kukkan and he had been living with him after adoption. He was in possession of his property as well. It is further indicated in the Will that the appellant would have no right in the property left by Dina Nath. 23. Before considering the effect of the factum of appellant’s adoption by Kukkan during his life time and his being in possession of Kukkan’s property in that capacity, recorded as such in the Will, regard needs to be had to the Gift Deed executed by Kukkan in favour of the appellant, on which the appellant’s counsel had laid great stress to project that the appellant had all along been treated and shown as Dina Nath’s son and could not thus be held to be the adopted son of Kukkan. The Gift Deed executed on October 04, 1962 by Kukkan in favour of the appellant, gifting all his landed property, original whereof has been placed on records by the appellant, stands registered with Sub-Registrar, Samba on October 05, 1962. It is indicated therein that the appellant, who was the son of Dina Nath, Kukkan’s real brother, had been living with him since his childhood, And as there was no male issue, so the appellant had been looking after him as his son and would thereafter too look after and serve him as such. 24. Besides the Gift Deed, the appellant relies on the entries in the Record of Rights and the Electoral Rolls in which he is indicated as the son of Dina Nath. 24. Besides the Gift Deed, the appellant relies on the entries in the Record of Rights and the Electoral Rolls in which he is indicated as the son of Dina Nath. He relies on the School Leaving Certificate too to prove him to be the son of Dina Nath. 25. The witness produced by the appellant to prove the School Leaving Certificate could not, however, prove it in the absence of original records of the School. 26. That apart, the School Leaving Certificate pressed into service by the appellant cannot be relied upon in view of his categoric statement on oath that he was illiterate. The School Leaving Certificate sought to be relied upon by the appellant, therefore, becomes irrelevant. 27. At this stage, reference needs to be made to the statement of respondents’ witness Dayawanti. 28. She is admitted by the parties to be the daughter of Kukkan. Recalling the event of appellant’s adoption by Kukkan, this witness says that a Pandit had performed the ceremonies and jaggery (Unrefined Brown Sugar-Gur) was distributed to the people. She says that the appellant had all along been treated as the adopted son of Kukkan and she too had accepted him as her adopted brother and it was he who had performed the post death rites of Kukkan. 29. From the perusal of the evidence led by the parties, the actual giving and taking in adoption of the appellant is not proved, in that, Dayawanti, the only witness produced by the respondents to prove that the ceremonies of adoption had been performed by Pandit, was of a tender age at the time of the alleged adoption of the appellant and it is difficult to believe her statement, to hold that actual giving and taking in ceremony had taken place. 30. The adoption of the appellant is stated to have taken place more than 80 years ago and all those who could have witnessed or been privy to the adoption cannot be expected to survive for so long to testify to the actual giving and taking in of the appellant in adoption, when the issue of adoption came to be raked up approximately after more than seventy years of the alleged adoption. 31. 31. It is true that ceremony of taking and giving in adoption is a necessary requirement for proof of a valid adoption yet at the same time, it may be unnecessary for the law to insist on proof of actual giving and taking in of adoption before concluding as to whether or not the adoption had taken place in case of ancient and old adoptions like the one which is projected in this case. 32. Proof or otherwise of the factum of adoption, in such cases, would thus depend on the conduct of the parties, the adopted and adoptive father, friends, relations and others, in relation thereto, subsequent to the adoption. 33. Documentary evidence indicating admission, acknowledgement and conduct of the adopted and adoptive father may thus be of paramount importance to determine the question of adoption. 34. Statement of fact about appellant’s adoption by Kukkan during his childhood, appearing in the Gift Deed, which is more than 30 years old document and has been produced from the proper custody, which even otherwise carries presumption of its due execution in presence of the witnesses, assumes importance. Considering the contents of the Gift Deed executed by Kukkan in favour of the appellant and those of the Will executed by Dina Nath in favour of his sons, other than the appellant, in the above back drop, it becomes apparent that both the adopted and the adoptive father had indicated in their Gift Deed and Will about appellant’s adoption by Kukkan during his childhood and his having served Kukkan, until his death. 35. Statement of Mst. Dayawanti, Kukkan’s real daughter that she would treat the appellant as his adopted brother and that all the post death rites of Kukkan had been performed by the appellant, too lends support to the fact that the appellant had all along been treated as Kukkan’s adopted son. 36. Considering the contents of the Gift Deed and Will in so far as these refer to the appellant’s adoption by Kukkan, in the light of the respondents’ evidence, the fragile and irrelevant evidence produced by the appellant to deny his adoption by Kukkan, cannot be relied upon. 37. 36. Considering the contents of the Gift Deed and Will in so far as these refer to the appellant’s adoption by Kukkan, in the light of the respondents’ evidence, the fragile and irrelevant evidence produced by the appellant to deny his adoption by Kukkan, cannot be relied upon. 37. The appellant’s contention that he had all along been referred to as Dina Nath’s son in the documents which include the Electoral Rolls negates the respondents’ story of his adoption by Kukkan, does not appear convincing, in that, reference to the appellant as Dina Nath’s son in the documents needs to be considered in the light of the specific assertion in the Gift Deed and the Will that he had been adopted during his childhood by Kukkan. 38. After the adoption of the appellant, he should have been indicated as Kukkan’s son rather than Dina Nath’s son in the records; but omission of the Petition Writer and the executants to get him recorded, as such, speaks of less developed intelligence level of the people in the area and their carelessness in getting the appellant recorded as adopted son of Kukkan, which appears to have contributed to these inconsequential omissions in the revenue, official and other records including the electoral rolls. This omission, however, is not sufficient to dislodge the specific statement of the adopted and adoptive father appearing in the registered documents about the fact of appellant’s adoption by Kukkan from his childhood, thereby admitting and acknowledging the fact of appellant’s adoption by Kukkan. 39. In view of the above discussion and on the basis of Dina Nath and Kukkan’s acknowledgement in the two registered documents that the appellant had been adopted by Kukkan coupled with the statement of Dayawanti that she had all along treated the appellant as his brother, the fact of appellant’s adoption by Kukkan stands established. 40. Appellant’s learned counsel’s submissions that the respondents had not proved the execution of the Will and that the appellant had not been adopted by Kukkan, therefore, fail and are, accordingly, rejected. 41. In view of the above discussion, the finding of the trial Court on issue No.3 is found to be well merited, hence affirmed. 42. 40. Appellant’s learned counsel’s submissions that the respondents had not proved the execution of the Will and that the appellant had not been adopted by Kukkan, therefore, fail and are, accordingly, rejected. 41. In view of the above discussion, the finding of the trial Court on issue No.3 is found to be well merited, hence affirmed. 42. There being no challenge to the findings of the trial Court on other issues, and rightly so because the appellant, while admitting that the property of their ancestor Mathara Dass stood partitioned between Kukkan and Dina Nath long ago, has not led any evidence to prove that the Will was forged. There is thus no evidence on records, on the basis whereof, these findings be disturbed. The findings of the trial Court on issue Nos.1, 2, 4 and 5 too are, accordingly, affirmed. 43. In view of the above findings, the dismissal of the appellant’s Suit is not found to suffer from any error of law or fact warranting interference. 44. There is no merit in this Appeal, which is, accordingly, dismissed with costs. Registrar Judicial to draw decree.