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2012 DIGILAW 230 (RAJ)

Narain Dutt v. Baya Bai

2012-01-27

VINEET KOTHARI

body2012
JUDGMENT 1. - Heard learned counsels for the parties at length. 2. This appeal has been filed by the appellant Narain Dutt S/o Radha Vallabh (Non-applicant/Cross-objector) against the respondents-applicants, namely, Baya Bai, Makniya Bai and Gulab Chand, being aggrieved by the order dated 15.10.1998 passed by learned Additional District Judge, Sojat, District Pali on application under Section 372 of Indian Succession Act, 1975, (for brevity, hereinafter referred to as 'Act') allowing the application of the applicants in respect of property of the deceased Smt. Mathura Bai W/o late Sh. Radha Vallabh. 3. A cross-application under Section 372 of the Act was also filed by the present appellant-Narain Dutt S/o Sh. Radha Vallabh, who claimed to be adopted son of Mathur Bai W/o late Sh. Radha Vallabh, however, his natural father being Sh. Shyam Lai S/o Jassulal Shrimali. The application filed by the present appellant was treated as cross-objection in the application filed under Section 372 of the Act by the respondents, Baya Bai and others. 4. The said applicants, Baya Bai, Makniya Bai and Gulab Chand (who died during the proceedings under Section 372 of the Act) claiming that they were daughters and son of Fati Bai and Mumal Bai respectively, who were sisters of Sh. Radha Vallabh, and in the absence of any other legal heirs of deceased Mathura Bai, who died intestate on 28.2.1979 at Sojat, these applicants were entitled to succession certificate under Section 372 of the Act. 5. On the basis of pleadings of the parties, four issues including the relief, were framed by the learned Court below, and burden of proving all these three issues was cast on the non-applicant Shyamlal and Narain Dutt, the present appellant and Durga Dan and Ramchandra. The issues are reproduced hereunder for ready reference: " 1- vk;k izkFkhZ la0 1 ls 3 e`rd eFkqjkckbZ ds mRrjkf/kdkjh ugha gS\ & vizkFkhZx.k 2- vk;k izkFkZuk i= ds in la0 2 esa mYysf[kr e`rd jkejru ds iq= o iqf=;ka thfor gS vkSj vxj ,slk gS rks izkFkZuk i= ij mldk D;k vlj gS\& vizkFkhZx.k 3- vk;k e`rd eFkqjkckbZ us vius thoudky esa mtjnkj ';keyky ds iq= ukjk;.k nRr dks xksn fy;k\ & vizkFkhZx.k 4- vuqrks"k\ " 6. The present appellant-Narain Dutt besides producing his natural father, Shyam Lai as NAW-2 in support of his application, also produced before the learned trial Court himself as NAW-1, and besides them NAW-3 Tikulal, NAW-4 Kanhaiyalal, NAW-5 Kailash Chandra Vyas, NAW-6 Nand Kumar, and NAW-7 Mahesh Dan. The witnesses vide para 14 of the impugned order being NAW-2 Shyam Lai, and NAW-3 Tikuram and NAW-4 Kanhaiyalal and NAW-5 Kailash Chandra Vyas have supported the factum of adoption of Narain Dutt by late Mathura Bai in the year 1978 before her death on 28.2.1979. 7. Mr. Arvind Samdariya, learned counsel for the appellant-Narain Dutt, submitted that the learned Court below has wrongly cast the negative burden on the non-applicants including the present appellant-Narain Dutt for all the three issues framed by it, even though application under Section 372 was filed by the applicants Baya Bai and others, and so also, the Court below has also ignored the evidence produced by the non-applicants in support of adoption of Narain Dutt by deceased Snu. Mathura Bai. He further submitted that in the face of adopted son being available to inherit the property left by deceased Mathura Bai as Class-1 heir, the applicants Smt. Baya Bai, Makniya Bai and Gulab Chand were not entitled to be granted succession certificate under Section 372 of the Act, who were only Class-2 heirs, if at all and by a later Will, purportedly bequeathed the said property in favour of "Shrimali Brahman Mahalaxmi Trust, Sojat". The property in question is said to be in the possession of the Collector, Pali as escheat property. 8. On the other hand learned counsel for the respondents, Mr. Mahesh Joshi, for Mr. Suresh Shrimali, vehemently submitted that the learned Court below was justified in granting succession certificate in favour of applicants, Baya Bai and others, as there were inconsistencies in the statements of various non-applicants and his witnesses and in view of admission of the non-applicants and his witnesses and in view of admission of the non-applicants that present applicants, Baya Bai, Makniya Bai and Gulab Chand were Class-2 heirs of deceased Mathura Bai, they were entitled to be grunted such succession certificate since adoption of non-applicant Narain Dutt by deceased Mathura Bai was not proved at all. Taking the Court through various statements, he tried to emphasise this point. 9. Taking the Court through various statements, he tried to emphasise this point. 9. Having heard learned counsels for the parties and after going through the impugned order dated 15.10.1998 of the learned Court below and various statements and record of the case, this Court is of the opinion that the impugned order of learned Court below is not sustainable and the matter deserves to be remanded back to the said Court for re-appreciating the evidence on record before it in correct and proper prospective. The cross-objections or another application under Section 372 of the Act filed by the present appellant-Narain Dutt was supported by evidence in the form of NAW-1 to 7. A bare perusal of these statements clearly shows that all these witnesses had consistently and unanimously stated before the Court below without being contradicted in the cross-examination that the appellant-Narain Dutt was adopted by late Smt. Mathura Bai in the year 1978 and merely absence of any documents in the form of photographs or not holding of a feast ( the.k ), it cannot be believed that the said Narain Dutt was not adopted by deceased Smt. Mathura Bai. The statements of persons, who were available on the eve of adoption itself, is good enough evidence to support such adoption. It is undoubted that in the presence of adopted son, the present appellant-Narain Dutt, the rights of applicants, namely, Baya Bai, Makniya Bai and Gulab Chand to inherit property of deceased Mathura Bai would take the back the seat, they being Class-2 heris and adopted son being Class-1 heir. 10. However, this Court would not like to give its own finding on the basis of the said evidence and it is for the learned trial Court itself to re-appreciate the evidence in correct and proper prospective, which is not found to be there in the impugned order dated 15.10.1998. Consequently, in the opinion of this Court, the impugned order dated 15.10.1998 deserves to set aside and the matter deserves to be remanded back to the learned trial Court. 11. Accordingly, this misc. appeal of Narain Dutt is allowed and setting aside the order dated 15.10.1998, the proceedings of both the applications under Section 372 of the Act are restored back to the Court of Additional District Judge, Sojat, Distt. Pali for deciding the proceedings afresh, preferably within a period of six months from today. 11. Accordingly, this misc. appeal of Narain Dutt is allowed and setting aside the order dated 15.10.1998, the proceedings of both the applications under Section 372 of the Act are restored back to the Court of Additional District Judge, Sojat, Distt. Pali for deciding the proceedings afresh, preferably within a period of six months from today. Record of the trial Court may be remitted to it forthwith. No costs.Appeal Allowed. *******