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2015 DIGILAW 1439 (PNJ)

Tara Chand v. Bharat Singh

2015-08-10

AUGUSTINE GEORGE MASIH

body2015
JUDGMENT Mr. Augustine George Masih, J. (Oral):- C.M. Nos 9137-C of 2015 Prayer in this application is for condoning the delay of 13 days in filing the appeal. For the reasons mentioned in the application, which is supported by an affidavit of the applicant/appellant, the application is allowed. Delay of 13 days in filing the appeal is condoned. RSA No. 3726 of 2015 The appellant has approached this Court assailing the judgment dated 09.04.2015 passed by the Additional District Judge, Gurgaon allowing the appeal preferred by the respondents, against the judgment and decree dated 22.08.2013 passed by the Additional Civil Judge (Senior Division), Gurgaon which has been set aside and the suit of the appellant dismissed. 2. Appellant filed a suit for declaration with consequential relief of permanent injunction to the effect that the plaintiff is a joint owner in possession to the extent of 1/7th share in the suit land. He being the son of Smt. Gomti Devi was entitled to the said benefit and has also challenged the Will, which was shrouded with doubt because the same has been executed on 04.04.2001 just three days prior to the death of Smt. Gomti Devi i.e. 07.04.2001. The suit of the plaintiff-appellant was decreed by holding that the plaintiff was a joint owner to the extent of 1/7th share, as mentioned in para-1 of the plaint and the mutation, on the basis of the Will, was null, void, illegal and nonest in the eyes of law. The said order was also passed against the defendant-respondents for illegally and forcibly dispossessing the plaintiff-appellant over the suit property. In the appeal, the findings, as recorded with regard to the Will as also that the plaintiff-appellant being the owner of 1/7th share of the property, were assailed, which has been allowed. 3. Counsel for the appellant has contended that the Will Ex. DW 1/A executed by Smt. Gomti Devi in favour of the defendantrespondents bequeathing the suit property in their favour is shrouded with doubt not only on the ground that it is only three days prior to the death of Smt. Gomti Devi, mother of the plaintiff-appellant, but the same was got registered after a period of three years. DW 1/A executed by Smt. Gomti Devi in favour of the defendantrespondents bequeathing the suit property in their favour is shrouded with doubt not only on the ground that it is only three days prior to the death of Smt. Gomti Devi, mother of the plaintiff-appellant, but the same was got registered after a period of three years. His further contention is that the signatures, which have been appended on the Will, of the attesting witnesses are not on the right side margin of the Will but are on the left and right of the thumb impressions of Smt. Gomti Devi. He, thus, contends that the said Will has been executed in suspicion circumstances and the same does not deserve to be taken into consideration for ousting the right of the appellant. In support of this contention, he has placed reliance upon the judgment of this Court in Smt. Kesar Bai (Dead) through LRs vs. Ran Singh, 2003 (3) PLR 580 . His further contention is that the respondents have failed to discharge their onus with regard to the fact as to whether the plaintiff has been validly adopted by Smt. Bakhtawari in the year 1964 and if the said adoption is not in accordance with law, the plaintiff-appellant cannot be ousted of his right relying upon Section 12 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘1956 Act’). He contends that the judgment, therefore, passed by the learned Additional District Judge, Gurgaon dated 09.04.2015 cannot sustain and deserves to be set aside and the suit and decree of the plaintiff-appellant be granted. 4. I have considered the submissions made by the counsel for the appellant and am of the considered view that even if these two grounds, which have been raised in the present appeal, are treated to be questions of law, which require to be considered by this Court, the same cannot be sustained in the light of the findings, which have been recorded by the Court below as I am in agreement with the same. 5. It is an admitted case on the part of the plaintiff-appellant that he had performed the last rites of Smt. Bakhtawari and has also inherited the property after her death and had been living with her prior to 1965 till the date of her expiry. 5. It is an admitted case on the part of the plaintiff-appellant that he had performed the last rites of Smt. Bakhtawari and has also inherited the property after her death and had been living with her prior to 1965 till the date of her expiry. Smt. Bakhtawari was a widow having four daughters, out of whom, one had expired and three were married before 14.10.1964, the date when the Will was executed in favour of the appellant, which was registered with the Registar’s office, Gurgaon. This clearly shows that she had the capacity to adopt the plaintiff-appellant and he had been given in adoption which was as per Sections 6, 8, 9 and 10 of the 1956 Act. There is nothing from the plaintiff-appellant parents’ side that they had not given their child in adoption to Smt. Bakhtawari. It is also not in dispute that prior to the claim made in the suit, the appellant had severed his relations with his natural family and had acquired all the rights as of a natural son in the family which had adopted him as per provisions of Section 12 of the 1956 Act. The findings thus, recorded by the trial Court, on this aspect, are in accordance with law and based upon the evidence on record, which do not call for any interference by this Court. 6. Section 12 of the 1956 Act reads as follows:- 12. The findings thus, recorded by the trial Court, on this aspect, are in accordance with law and based upon the evidence on record, which do not call for any interference by this Court. 6. Section 12 of the 1956 Act reads as follows:- 12. Effects of adoption.- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in 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.” 7. As per the above provisions of Section 12, on adoption, an adoptee gets transplanted in the adopting family with the same rights as that of a natural born son. He even becomes coparcener in the joint hindu family property after severing all his ties with the natural family and has equal rights in the property of the adopted family. Nothing has been asserted, which showed that the adoption of the plaintiff-appellant was not as per the statutory provisions, as contained under 1956 Act. There being no legal bar to the adoption of the plaintiff-appellant, the assertions of the counsel for the appellant cannot be accepted. 8. The next contention, which has been raised by the counsel for the plaintiff-appellant, is that the Will is shrouded with suspicious circumstances. For that, two grounds have been raised. 9. There being no legal bar to the adoption of the plaintiff-appellant, the assertions of the counsel for the appellant cannot be accepted. 8. The next contention, which has been raised by the counsel for the plaintiff-appellant, is that the Will is shrouded with suspicious circumstances. For that, two grounds have been raised. 9. First is that the signatures of the attesting witnesses are on the left and right of the thumb impressions of Smt. Gomti Devi but that cannot be accepted merely because the signatures of the attesting witnesses are on the right and left of the thumb impressions of Smt. Gomti Devi, who has executed the Will. This cannot be a sufficient ground for setting aside the Will or looking at it with suspicion. Reliance on the judgment of this Court in Smt. Kesar Bai (supra) is misplaced where an observation has been made by the Court that generally, the signatures or the thumb impressions are on the right side of the executant of the Will. These observations were on the basis of the facts and circumstances of the said case and it cannot be said to be a mandate of the Statute that it should always be on the right side of the signatures/thumb impression of the executant of the Will. It is admitted that as per the Statute, there is no requirement of the signatures of the attesting witnesses to be on the right side of the signatures/thumb impressions of the executant and, therefore, the same cannot be accepted. 10. The second ground as raised by the counsel for the plaintiffappellant is that the Will was registered after a period of three years cannot itself be a ground for doubting the execution of the Will especially when there is no requirement under the Statute that the Will should be registered. Even an unregistered Will can be relied upon if its execution is proved as in this case. The findings recorded by the Lower Appellate Court, in the considered view of this Court, are based on the evidence on record and on proper appreciation of the same as also in accordance with law, which do not call for any interference by this Court. Finding no merit in the present appeal, the same stands dismissed. C.M. Nos 9137-C of 2015 In the light of the dismissal of the appeal, the application for stay also stands dismissed. ----------------