Dismissed

Chand Ram and Anr. v. Rajinder Parshad and Ors.

Punjab & Haryana HC6 Aug 2009RSA/3966/2007

Case brief

AI extract

What is this about?

In a second appeal regarding succession and partition, the High Court upheld the lower courts' dismissal of the appellants' suit. It held that evidence failed to prove Des Raj was legally adopted by Sham Dass due to lack of 'giving and taking' ceremonies, and confirmed that a 1969 will was validly cancelled in 1980.

What did the court decide?

The appeals were dismissed for being devoid of merit; the impugned judgement and decree of the first appellate court were upheld.

Chand Ram and Anr. Vs Rajinder Parshad and Ors. — Partition | Punjab & Haryana HC (2009)

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RSA No. 3965 of 2007 RSA No. 3966 of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A. No. 3965 of 2007 Date of Decision: 06.08.2009

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1. Chand Ram;

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2. Dev Raj; both sons of Chetan Dass son of Badri Dass, r/o Badhni Kalan, Tehsil and District Moga.

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... Appellants

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Versus

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1. Rajinder Parshad;

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2. Baljinder Singh; both sons of Des Raj, r/o Badhni Kalan, Tehsil and District Moga.

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...Contesting-Respondents

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3. Puta Devi, d/o Chetan Dass, r/o Badhni Kalan, Tehsil and District Moga.

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...Proforma-Respondent

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R.S.A. No. 3966 of 2007 Date of Decision: 06.08.2009

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1. Chand Ram;

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2. Dev Raj; both sons of Chetan Dass son of Badri Dass, r/o Badhni Kalan, Tehsil and District Moga.

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... Appellants

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Versus

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1. Rajinder Parshad;

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2. Baljinder Kumar @ Baljinder Singh; both sons of Des Raj, r/o Badhni Kalan, Tehsil and District Moga.

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RSA No. 3965 of 2007 RSA No. 3966 of 2007

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3. Bhagwan Kaur widow of Des Raj;

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4. Sheela;

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5. Swarana;

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6. Chhinder Kaur; daughters of Des Raj son of Sham Dass, all residents of village Badhni Kalan, Tehsil and District Moga.

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...Contesting-Respondents

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7. Vidya Wanti;

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8. Nasib Kaur;

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9. Puta Devi; d/o Chetan Dass s/o Badri Dass, r/o village Badhni Kalan, Tehsil and District Moga.

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...Proforma-Respondents

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CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

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Present: Mr. S.K. Singla, Advocate, for the appellants.

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Mr. J.R. Mittal, Senior Advocate, with Mr. Kashmir Singh, Advocate, for respondents No. 1 and 2, in both the appeals.

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Service of respondent No. 3, dispensed with, being proforma-respondent, in R.S.A. No. 3965 of 2007.

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Service of respondents No.3 to 7 and 9, dispensed with, they being exparte in the First Appellate Court.

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Respondent No.8 – Dead.

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SHAM SUNDER, J.

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This judgement shall dispose of Regular Second Appeal

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No. 3965 of 2007, and Regular Second Appeal No. 3966 of 2007, filed

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RSA No. 3965 of 2007 RSA No. 3966 of 2007

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by Chand Ram and Dev Raj, appellants, against the judgement and decree dated 23.10.2007, rendered by the Court of Additional District Judge, Moga, vide which, it accepted the appeals, modifying the judgement and decree dated 19.10.2005, rendered by the Court of Civil Judge (Senior Division), Moga.

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The plaintiffs (now appellants) claimed that the property, in dispute, was the exclusive ownership of Chetan Dass son of Badri Dass, who during his life time, executed a valid registered Will dated 15.12.69, in their favour. Chetan Dass, died, in the year 1983. After the death of Chetan Dass, the plaintiffs became the owners in possession of the land, in dispute, on the basis of the Will. It was stated that, Des Raj, defendant No. 1 (since deceased), adopted son of Sham Dass, had no right or interest, in the suit property, nor he could dispossess the plaintiffs, illegally and forcibly therefrom. Defendant No.1, had already inherited the estate of Sham Dass, being his adopted son. It was further stated that Des Raj (since deceased) could not claim any property of his natural father Chetan Dass. Des Raj had been residing, in the house of Sham Dass, his adoptive father, since his childhood. The defendants were many a time asked, not to interfere, into the possession of the plaintiffs, over the suit land, but to no avail. On their final refusal, to desist, from their illegal designs, left with no other alternative, a suit for declaration and permanent injunction, was filed.

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Des Raj, defendant No.1 (since deceased), put in

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appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiffs, had not come to the Court, with clean hands and concealed the material facts. It was stated that Chetan Dass, deceased, executed a registered Will dated 15.12.69, in favour of the plaintiffs, but the same was got cancelled by him, vide registered cancellation deed dated 09.06.80. It was further stated that mutation No. 1516, had been sanctioned, with regard to the property, in question, in favour of all the legal heirs of Chetan Dass, including him. It was further stated that Chetan Dass, had sold 16 kanals 12 marlas of land, during his life time, but this fact, was not disclosed in the plaint. It was further stated that the subsequent vendees, were also the necessary parties for the effective disposal of the case. It was further stated that he (Des Raj since deceased), was a cosharer, to the extent of 1/12 share in the property left by Chetan Dass. It was denied that he was the adopted son of Sham Dass. In fact, he used to serve his uncle Sham Dass, during his life time, as a result whereof, bestowing his love and affection, he (Sham Dass), executed a registered Will, in his favour. It was further stated that he inherited the estate of Sham Dass, on the basis of the Will and mutation No. 8362 dated 13.06.70, had been sanctioned, in his favour. It was further stated that, at the time of sanctioning the mutation, Chetan Dass, was alive, and he never challenged the factum of Will, in his favour. The remaining averments, were denied, being wrong.

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Defendants No. 2 to 4, were duly served, and Sh. Major Singh, filed power of attorney, on their behalf. But, later on, they did not file written statement, as a result thereof, their defence, was struck off.

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On the pleadings of the parties, the following issues were

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struck:-

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(i) Whether Chetan Dass executed registered Will dated 15.12.69 in favour of the plaintiff? If so, what effect? OPP

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(ii) Whether the plaintiffs are entitled to declaration as prayed for? OPP

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(iii) Whether suit is not maintainable? OPD

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(iv) Whether Will dated 15.12.69, was got cancelled vide cancellation deed dated 09.06.80? OPD

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(iva) Whether defendant No. 1 is the adopted son of Sham Dass? OPP

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(v) Relief.

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After hearing the Counsel for the parties, and on going through the evidence, on record, the trial Court, decreed the suit.

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Feeling aggrieved, two appeals, were preferred, which were

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accepted, by the Court of Additional District Judge, Moga, vide judgement and decree dated 23.10.2007.

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Feeling dissatisfied, the instant Regular Second Appeals, have been filed by the plaintiffs/appellants.

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RSA No. 3965 of 2007 RSA No. 3966 of 2007

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I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.

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The following substantial questions of law arise, in these appeals, for the consideration of this Court:-

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(i) Whether the findings recorded by the Courts below (first Appellate Court), that Des Raj (since deceased), was not the adopted son of Sham Dass, are perverse, on account of misreading and misappreciation of evidence, and liable to be set aside?

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(ii) Whether the findings of the Courts below, that the Will dated 15.12.69, executed by Chetan Dass, in favour of Chand Ram and Dev Raj, was cancelled vide registered cancellation deed dated 09.06.80, are perverse, on account of misreading and misappreciation of evidence, and liable to be set aside?

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(iii) Whether the judgements and decrees of the Courts below, being illegal, are liable to be set aside?

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The Counsel for the appellants, submitted that sufficient evidence was led that Des Raj, was the adopted son of Sham Dass, but the first Appellate Court, was wrong, in holding otherwise. He further submitted that there was no evidence, on record, that the Will, executed by Chetan Dass, in favour of Chand Ram and Dev Raj, was ever cancelled, but the Courts below, misread and misappreciated the evidence, resulting into recording of perverse findings, to the effect, that the same, was cancelled. He further submitted that since the adoption of Des Raj by Sham Dass, took place, much prior to the

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coming into force of the Hindu Adoption and Maintenance Act, it was not at all possible, to lead any positive evidence, with regard to the ceremonies, which took place, at the time of giving and taking of Des Raj, by his natural parents, to Sham Dass. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside.

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On the other hand, the Counsel for the respondents, submitted that, the mere fact, that the name of Des Raj, in some of the documents was recorded as the son of Sham Dass, did not prove, that he was adopted by him, as his son. He further submitted that, for the purpose of proving legal and valid adoption, it was required of the plaintiffs, to prove that there was actual giving and taking by the natural parents of Des Raj, to Sham Dass, and what ceremonies, were performed, at that time, but they failed, to do so. He further submitted that the Courts below, were right, in coming to the conclusion that, no legal and valid adoption of Des Raj by Sham Dass, was proved. He further submitted that the Courts below, were also right, in coming to the conclusion, that the Will, which was executed by Chetan Dass, in favour of the appellants, on 15.12.69, was, later on, cancelled. He further submitted that the judgements of the Courts below, being legal and valid, were liable to be upheld.

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After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeals are liable to be dismissed, for the reasons to be

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recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The plaintiffs, did not mention, in the plaint, with regard to the specific date, month, and the year, when Des Raj, was adopted by Sham Dass. Even no evidence, with regard to the date, month, and year, when Des Raj, was allegedly adopted by Sham Dass, was produced. No doubt, it was the case of the plaintiffs, that the adoption of Des Raj, by Sham Dass, took place, in the hoary past, and, as such, it was not possible, to prove the same, by way of leading the positive evidence. In the absence of the evidence of actual giving and taking of Des Raj, to Sham Dass, at the time of his alleged adoption, by his natural parents, and the alleged ceremonies, which were performed, at that time, reliance was placed by the plaintiffs, on some documents. P9 is the voter list, for the year 1984,

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and P10 is the voter list for the year 1999. In these documents, Des Raj, is mentioned, as the son of Sham Dass. Entries, in the record of the membership of Cooperative Societies, also showed Des Raj, as the son of Sham Dass. The mere fact that the name of Des Raj, was recorded, as the son of Sham Dass, in these documents, did not prove, that he was actually adopted by Sham Dass. No respectable person, from the village, was produced, to prove, that actually Des Raj, was given in adoption, by his natural parents, to Sham Dass, and particular ceremonies, were performed, at that time. DX, is the Will, executed by Sham Dass, in favour of Des Raj, on 01.04.60, and the Punjabi translation thereof, is exhibit DX/B. The execution of this document, was proved by Gurdev Singh, one of the marginal witnesses. This Will, was duly acted upon, and mutation was sanctioned, in favour of Des Raj, in respect of the property, mentioned therein. In this Will, Sham Dass, never stated that, Des Raj, was his adopted son. Had Sham Dass, adopted Des Raj, as his son, such a material fact, would have been admitted, by him, in the Will DX. In the Will, on the other hand, it was got recorded by Sham Dass, that his nephew Des Raj, was looking after him, and because of the services, rendered by him, he bequeathed his property, in his favour. This Will, was not challenged by anybody. Even the mutation, which was sanctioned, on the basis thereof, was not challenged by anybody. This fact is also clear, from the jamabandi exhibit D7. Even, in the revenue record, Des Raj, has been shown, as the son of Chetan Dass, and not referred to as the adopted son of Sham

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Dass. The Will dated 01.04.60, exhibit DX, could be said to be the clincher to prove that Des Raj, was never adopted, as son, by Sham Dass, but he was his nephew, and this fact, was recorded in the aforesaid document. Since Sham Dass, was the uncle of Des Raj, if out of love and affection, he was treating him, as his son, and was bestowing his love and affection upon him, just like his son, that did not mean, that he adopted him, as his son. There are legal requirements, for the purpose of valid adoption. These requirements, were not proved, on the basis of the evidence led. The first Appellate Court, was, thus, right in coming to the conclusion, that the plaintiffs, failed to prove, that Des Raj, was adopted, as son, by Sham Dass. The first Appellate Court, thus, rightly reversed the findings of the trial Court, on issue No. 4A, to the contrary. Substantial question No. 1, of law, is, thus, answered against the appellants.

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The next question, that arises for consideration is, as to whether, the Will dated 15.12.69, P3, which was executed by Chetan Dass, in favour of the appellants, was cancelled, later on, by him, and, as such, had no effect, whatsoever. The execution of the Will P3, dated 15.12.69, was proved by examining Gurdev Singh (PW7), being one of its marginal witnesses. Even Des Raj, did not dispute the execution of the Will aforesaid. However, the case of Des Raj, was that, this Will, was cancelled vide registered cancellation deed, dated 09.06.80, exhibit D1. The execution of this registered cancellation deed of the Will, was proved, by Puran Chand Chhabra, Head Registration Clerk, office of

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the Deputy Commissioner, Faridkot, DW1, Kewal Krishan, DW2, and Bachan Singh, DW4, one of the marginal witnesses of the cancellation deed. The Courts below, were, thus, right in holding, that, no doubt, the Will dated 15.12.69, was executed by Chetan Dass, in favour of the appellants, but the same, was cancelled, by way of registered cancellation deed dated 09.06.80, exhibit D1. The Courts below, were, thus, right in holding, that after the cancellation of the said Will, no ownership, on the basis thereof, could be claimed by the plaintiffs. The concurrent findings of fact of the Courts below, in this regard, therefore, could not be said to be, in any way, illegal, or perverse.

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The judgement and decree of the first Appellate Court, therefore, could not be said to be illegal, in any manner. The same are liable to be upheld. Substantial questions No. 2 and 3, of law, are, thus, answered against the appellants.

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For the reasons recorded above, the aforesaid appeals, being devoid of merit, must fail, and the same, are dismissed.

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(SHAM SUNDER) JUDGE

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06.08.2009 Amodh/ashish

Chand Ram and Anr. v. Rajinder Parshad and Ors.

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Chand Ram and Anr. v. Rajinder Parshad and Ors.

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