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2015 DIGILAW 1496 (GAU)

Khargapani Barman v. Suresh Deka

2015-12-07

N.CHAUDHURY

body2015
JUDGMENT : This is an appeal under Section 384 of the Indian Succession Act, 1925, (herein after referred to as the Act) challenging the judgment and order dated 21.11.2009 passed by the learned District Judge, Barpeta in the Misc.(J) Case No. 2 of 2008 thereby revoking the succession certificate granted in favourof the present appellant in Misc.Case No.86 of 2005. 2. The present appellant, Khargapani Baman filed Misc. Case No.86 of 2005 in the court of learned District Judge, Barpeta under Section 372 of the Indian Succession Act stating that he and his sister Sabitri Deka were adopted by one Pabitra Barman by swearing an affidavit before the Magistrate. He claimed that on the basis of the aforesaid adoption, he and his sister became adopted offspring of Late Pabitra Barman who died on 17.4.2005 and thus they became entitled to the debt and securities mentioned in the application. In the schedule to the application, the petitioner furnished full details in three different heads, the total of which is Rs.96,366/- and prayed for succession certificate with respect to thesesecurities. Out of this amount Rs.4,950/- was lying in R.D. A/C No. 41979 in Sarthebari Post Office, Rs.51,416 against A/C No. 183 of Assam Samabay Kharsorigha Sarthebari and another sum of Rs.40,000/- being price of 10 lechas of land situated at Namsala Gaon, Mouza Sarukhetri in the District of Barpeta. The schedule to the application is quoted below for ready reference: - Schedule - 1. Sarthebari Post Office- R.D. A/C No.41979 Rs. 4, 950.00 2. Assam Samabay Kharsonigha Sarthebari A/D No.183 Rs.51,416.00 3. Land covered by dag No. 65 and periodic Kharaj patta No.30 land measuring 10 LS Situated at Namsala Gaon, Mouza-Sarukhetri PS Sarthebari, Dist. Barpeta, Assam, amounting of (Above mentioned land in connection By the C/O Sarthebari Rs. 40,000.00 Total Rs.96,366.00 (Rupees ninety six thousand three hundred sixty six only) 3. However, by an order passed on 22.3.2006 on an objection raised by one Badan Deka, properties mentioned in the Item No. 3 of the schedule in regard to immovable property was taken out from the consideration of the proceeding as value of Rs.40,000/- was neither debt or security nor was it liquid money. Rather it was really a claim against immovable property. The proceeding thus remained confined to Items No. 1 and 2 of the Schedule to the application to the tune of Rs.56,366/- only. 4. Rather it was really a claim against immovable property. The proceeding thus remained confined to Items No. 1 and 2 of the Schedule to the application to the tune of Rs.56,366/- only. 4. Badan Deka who is none other than the brother of respondent No. 1 filed an application in that proceeding stating that deceased Pabitra Barman had executed one Will in favour of Suresh Deka and Badan Deka and so no one else except them would be entitled to the properties left behind by Pabitra Barman. The learned trial court by order passed on 22.3.2006 rejected the objection of Badan Chandra Deka as the Will said to had been executed by deceased was not probated. Ultimately, a succession certificate was granted by the District Judge in the aforesaid Case No. 86 of 2005 on 26.5.2006. After issuance of the Succession Certificate under Section 372 of the Act, respondent No. 1 herein Suresh Deka filed an application under Section 383 of the Act in the same court praying for revocation of the succession certificate on 1.6.2006 which was issued by the court pursuant to the order dated 26.5.2006 passed in Case No. 86 of 2005. In that application, the objection was taken that Late Pabitra Barman did never adopt anyone as his son and daughter and Khargapani Baman obtained succession certificate in his favour by making untrue allegation of facts before this court. This application was numbered as Misc.(J) Case No. 2 of 2008. On being notified, Khargapani Baman, the sole opposite party appeared and submitted written statement denying the allegation leveled against him in the application. Learned court did not frame any issues but asked the parties to prove their respective case and accordingly respondent No. 1 Suresh Deka examined three witnesses including himself and exhibited one Will as Exhibit-1. He also exhibited death certificate as Exhibit-2 and both the documents were admitted into records without objection. PW-1 stated that Khargapani Barman obtained succession certificate mis-representing himself and his married sister Sabitri Deka as adopted son and daughter respectively of Pabitra Barman whereas the real fact is that Pabitra Barman never adopted them. Thus, it was the specific case of Suresh Deka that Pabitra Barman did not adopt Khargapani Baman and Sabitri Deka and this is why issuance of succession certificate in favour of Khargapani Baman on the basis of adoption is not sustainable. Thus, it was the specific case of Suresh Deka that Pabitra Barman did not adopt Khargapani Baman and Sabitri Deka and this is why issuance of succession certificate in favour of Khargapani Baman on the basis of adoption is not sustainable. In course of cross-examination, he stated that deceased Pabitra Barman was his maternal uncle. His mother is Smti Anila Deka and she has three sons, namely, Badan Deka, Suresh Deka and Manoj Deka and one daughter Smti Bhanu Talukdar. Badan Deka is elder to him being 45 years of age and both of them are living together at Sarthebari. He however disclosed that Exhibit-2, death certificate was obtained by Badan Deka, his elder brother. But he could not disclose the date and order of Exhibit-1 Will. He further disclosed that he had withdrawn Rs.35,000/- from Asom Samabay Kahar Sangha for funeral expenses of the deceased. But he did not withdraw any money from the UCO Bank of Sarthebari Branch. He did not know who had taken money from the post office from the Account of Pabitra Barman. He stated that when Pabitra Barman was lying at bed, he had authorized him to withdraw the amount from Silpha Sanga giving his name in the register and that is why he did not obtain any succession certificate for withdrawal of the amount. He further disclosed that no application for probate of the Will was filed till date. 4. PW-2 is Prahlad Talukdar. He is the brother in law of Suresh Deka. He stated that Pabitra Barman died bachelor and during his lifetime, he executed registered Will on 28.9.2004. Pabitra Barman had seven legal heirs and name of them were disclosed by him vide paragraph-3 of the examination-in-chief. In course of cross examination, he stated that he lived within 1 km from the house of Pabitra Barman who died on 17.4.2005. According to him, Khargapani Baman and Sabitri Deka were not adopted son and daughter and he could not say as to who was shown as father of Khargapani Baman and Sabitri in the voter list. He stated that Pabitra had told him during his lifetime to withdraw the amount from Sangha for his treatment. 5. According to him, Khargapani Baman and Sabitri Deka were not adopted son and daughter and he could not say as to who was shown as father of Khargapani Baman and Sabitri in the voter list. He stated that Pabitra had told him during his lifetime to withdraw the amount from Sangha for his treatment. 5. Khargapani Barman examined himself as DW-1 and he claimed in paragraph-2 of his examination in chief that he is the adopted son of Pabitra Barman whereas his sister Sabitrai (Haloi) is the adopted daughter of Pabitra Barman. On 24.6.1982, Pabitra executed an affidavit being personally present in the court of Magistrate 1st class at Barpeta in their presence and then gave signature on the affidavit accepting them as his adopted son and daughter. Thereafter, on 17.4.2005 Pabitra Barman died. He stated that on 5.11.2005, he submitted application in the court of learned District Judge, Barpeta leading to registration of Secession Case No.86 of 2005 wherein Sabitri Barman was made opposite party along with late Maheswar Barman. As the opposite party did not appear and did not file objection, the learned court allowed the succession case on 16.5.2006 and accordingly on 1.6.2006, succession certificate was issued to him. He claimed to have performed Vaidik shraddha etc at Dibrugarh after Pabitra Barman had died. He stated that Suresh Deka withdrew Rs. 51,416/- from Kharsorigha Sarthebari Sangha during pendency of the proceeding illegally. He also withdrew the money from UCO Bank lying in the account of Late Pabitra Barman and mis-appropriated the same. Suresh Deka and Badan Deka broke open the lock and took away all papers and money from almirah and trunk of Pabitra Barman after his death for which Maheswar Barman had submitted FIR in the police station. However, land of Pabitra Barman at Sarthebari Namsala road is still under his possession. He stated that during lifetime of Pabitra Barman , he made expenditure for his treatment and Pabitra Barman was in his house at Barhat till marriage in the year 2000. He proved Exhibit-1 to be the death certificate, Exhibit- ka to be the affidavit and Exhibit-gha is the school certificate. 5. This witness was cross-examined at length when he stated that Pabitri Barman had sworn an affidavit and adopted him and his sister as his son and daughter respectively. Advocate Dimbeswar Talukdar prepared the affidavit but he has not been examined as witness. 5. This witness was cross-examined at length when he stated that Pabitri Barman had sworn an affidavit and adopted him and his sister as his son and daughter respectively. Advocate Dimbeswar Talukdar prepared the affidavit but he has not been examined as witness. He admitted that he was 22 years of age at the time of execution of Exhibit-Ka and his sister was 18 years of age at that time. He denied the suggestion that he was not adopted son of Late Pabitra Barman. Sabitri Barman was examined as DW-2. She stated that Khargapani Barman is her brother and on 24.6.1982, she and her brother accompanied Pabitra Barman to court in Barpeta where by swearing affidavit, Pabitra Barman declared Khargapani Barman and Sabitri Barman as his son and daughter. 6. DW-3 is Rudra Barman. He stated on oath that Khargopani Barman and Sabitri Barman are adopted son and daughter of Pabitra Barman which he knew very well. Pabitri Barman executed affidavit on 24.6.1982 himself being personally present in Barpeta court and thereby declared that Khargopani Barman and Sabitri Barman were his adopted son and daughter. He stated that he was aware about taking into such adoption. He stated that Khargopani Barman did not get a single paise till date. He knew that Khargopani Barman had locked the house of Pabitra Barman but Suresh Deka Broke open the same and took away all papers, money and other things in connection with which Maheswar Barman lodged a police case. In course of cross examination, he stated that he is the brother of Khargopani Barman. He was present on 24.6.1982 when Pabitra executed an affidavit declaring Khargopani Barman and Sabitri Barman as his son and daughter. Suresh Deka broke open the lock of the house of Pabitra after his death. It would be conspicuous to note that in course of examination of all the witnesses that no question was put to them about validity of the adoption or as to existence or non-existence of custom permitting adoption beyond 15 years of age. 7. Be that as it may, after consideration of the aforesaid evidence on record, learned counsel passed the impugned judgment and order dated 21.11.2009 allowing the application under Section 384 of the Act and thereby challenging the succession certificate dated 1.6.2006 issued pursuant to order passed in succession case No. 86 of 2005 by the same court. 8. 7. Be that as it may, after consideration of the aforesaid evidence on record, learned counsel passed the impugned judgment and order dated 21.11.2009 allowing the application under Section 384 of the Act and thereby challenging the succession certificate dated 1.6.2006 issued pursuant to order passed in succession case No. 86 of 2005 by the same court. 8. In the aforesaid impugned judgment, the learned District Judge observed at paragraph-12 that the only point for determination in the case was whether adoption document marked as Exhibit-Ka is a valid and legal one. Thereafter, considering the evidence led by the parties, the learned court observed that under Section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956, adopted son and daughter being about 15 years of age as on the date of execution of Exhibit-ka there was no valid adoption inasmuch as there is nothing on record to come to finding that there is custom or usage permitting adoption of child about 15 years of age. This judgment and order has been brought under challenge in the present appeal under Section 384 of the Act. 9. Heard Mr. SK Goswami, learned counsel for the appellant and Mr. GN Kakoti, learned counsel for the respondents No. 1 and 2. I have also perused the LCR. After hearing the learned counsel for the parties, it appears that the point for determination in the case would be as follows:- (i) Whether the learned trial court committed error in going beyond the pleadings to hold that there was no valid adoption in the case? (ii) Whether the impugned judgment and award is in conformity with the plaint and any of the Clauses of Sectioin-384 (a) to 384-(e) of the Indian Succession Act, 1925? 10. Mr. SK Goswami, learned counsel for the appellant would argue that in the application filed under Section 383 of the Act only point taken by respondent No.1 was that deceased Pabitra Barman did not adopt anyone during his lifetime. There is no pleading to the effect that Exhibit-Ka affidavit is illegal or inoperative or that it did not confer any right, title or interest or status to the beneficiaries, namely, Khargapani Barman and Sabitri Barman. 11. The specific case of the applicant Suresh Deka was that there was no adoption whatsoever and Khargapani Barman obtained succession certificate by wrongly claiming to be adopted son of late Pabitra Barman. 11. The specific case of the applicant Suresh Deka was that there was no adoption whatsoever and Khargapani Barman obtained succession certificate by wrongly claiming to be adopted son of late Pabitra Barman. By filing written statement against this allegation, Khargapani Barman denied this allegation and to establish the denial , he exhibited exhibit-Ka affidavit to show that Pabitri Barman had made declaration on 24.6.1982 before the learned Judicial Magistrate 1st Class that Khargapani Barman and Sabitri Barman were his adopted son and daughter. In course of cross examination, no question was asked to any of the DWs about the validity or correctness of the affidavit. Signature of Pabitra Barman on Exhibit-Ka is not denied. No suggestion has been given that Exhibit-Ka is fraudulent or that it was never executed by Pabitra Barman. At least by production of Exhibit-Ka and by exhibiting the same without objection, Khargapani Barman could successfully demolish the case of respondent No.1/applicant that there was adoption by Pabitra Barman in favour of Khargapani Barman and Sabitri Barman. As the question as to validity of the adoption was not raised by pleadings of the applicant, the opposite party (appellant Khargapani) had no reason to plead or to lead any evidence in support of valid adoption. What was required on the part of Khargapani Barman was to show that there was a semblance of adoption on 24.6.1982. On the basis of Exhibit-Ka, Pabitra declared before the learned Judicial Magistrate, 1st Class that Khargapani Barman and Sabitri Barman were his adopted son and daughter respectively. The learned court failed to note the nature and extent of the ground taken in the application under Section 383 of the Act. The only objection taken by the applicant Suresh Deka was that he did not know about adoption by Pabitra Barman and so the learned court was only required to adjudicate and decide as to whether there was any adoption or not. The learned trial court found that there was adoption. Thereafter, it proceeded to decide further that although there was an adoption in favour of Khargapani Barman and Sabitri Barman(Haloi) but thereafter he proceeded to decide as to whether such adoption was valid or not. Framing such point for determination/issue by the learned trial court, therefore, amounts to going beyond the scope of pleadings. Thereafter, it proceeded to decide further that although there was an adoption in favour of Khargapani Barman and Sabitri Barman(Haloi) but thereafter he proceeded to decide as to whether such adoption was valid or not. Framing such point for determination/issue by the learned trial court, therefore, amounts to going beyond the scope of pleadings. The learned District Judge exercised the power as a trial court and so such point for determination assumes the nature of issue within the meaning of Order XIV Rule 1 of the Code of Civil Procedure. Under Order XIV Rule 1(5) of the CPC, it is provided that at the first hearing of the suit, court shall after reading the plaint and the written statement (emphasis supplied) if any after examination under Rule 2 of Order X and after hearing the parties or their pleaders ascertain upon what material proposition of fact or law, the parties are at variance and shall thereupon proceed to frame and record the issues of which the right decision of the case appears to depend. A bare perusal of the aforesaid rule would only go to indicate that while framing an issue, a court is only required to read the plaint and the written statement, if any and thereupon to ascertain the material proposition which the parties are at variance. This means that after reading the plaint and the written statement, court is required to find out the point of discord between them and issue is to be framed upon such point of variance/discord and thereafter the parties are required to adduce their respective evidence to show as to whose version such rival contention is correct. Herein in the present case, the applicant averred that Pabitra Barman did not adopt Khargopani Barman and Sabitri Haloi in any point of time as his son and daughter respectively. On being notified, opposite party appeared and by filing written statement denied the statements and claimed that on 24.6.1982, Pabitri Barman himself being present before the Judicial Magistrate, 1st Class, Barpeta executed an affidavit declaring that Khargopani Barman and Sabitri Haloi were his son and daughter. So the point for which applicant and the objector varied with each other was as to whether there was at all any adoption by Pabitra Barman or not. The only point for determination before the learned court, therefore, would have been whether there was an adoption at all. 12. So the point for which applicant and the objector varied with each other was as to whether there was at all any adoption by Pabitra Barman or not. The only point for determination before the learned court, therefore, would have been whether there was an adoption at all. 12. Although no issue was framed in so many words by the learned trial court to ask the parties to prove their respective case, naturally both the parties adduced their respective evidence depending on the pleadings of the parties. The objector, Khargopani Barman knew the question to be answered by him. He also knew his own pleadings and so he adduced Exhibit-Ka to show that there was a declaration by Pabitra Barman during his lifetime accepting Khargopani Barman and Sabitri Haloi as adopted son and daughter. In the normal view of the judicial proceeding, Khargopani Barman discharged his burden after he led evidence contrary to the pleadings of the applicant and in support of his own version, no question was looming in front of the objector Khargopani Barman as on the date of adducing evidence as to validity of adoption in his favour. The only question before him was whether there was any adoption or not. Knowing this question, Khargaopani led evidence to show that there was adoption by Pabitra Barman. In this view of the matter, the trial court went beyond the pleadings and beyond the scope of the proceedings in going to decide the validity of the adoption. Even if he had framed such an issue at the threshold in that event the parties would have noticed the same and they would have led evidence to that extent. Here in this case, after reading the plaint and the written statement (herein application and the objection), there is no pleading as to validity of any adoption at all. Question was raised as to existence of adoption. Under such circumstances, it appears that the learned trial court committed error in going beyond the pleading of the parties and framing different point for determination. The first point of determination is accordingly decided in favour of the appellant and against the respondent. 13. In view of what has been stated above and in view of decision of the point for determination in the appeal, the appeal stands allowed. Impugned judgment and order is hereby set aside. 14. No order as to cost. The first point of determination is accordingly decided in favour of the appellant and against the respondent. 13. In view of what has been stated above and in view of decision of the point for determination in the appeal, the appeal stands allowed. Impugned judgment and order is hereby set aside. 14. No order as to cost. Send down the records.