R.S.A. No. 2009 of 1985. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
R.S.A. No. 2009 of 1985.
Date of Decision: 01st December, 2008.
Suraj Bhan & Ors. ....Appellants.
through
Mr. Akshay Bhan, Advocate with
Mr. Santoshi Sharma, Advocate.
Versus
Jagdish & Ors. ...Respondents
through
None.
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
This order shall dispose of Regular Second Appeals No.
2009, 2201, 2211 and 2215 of 1985 as the same have been directed
against the common judgments and decrees passed by the Courts
below. The appellants are aggrieved at the judgment and decree
dated 9th April, 1983 passed by the learned Sub Judge Ist Class,
Mohindergarh whereby their declaratory suit was dismissed, as well
as the judgment and decree dated 4th March, 1985 passed by the
first Appellate Court, Narnaul affirming the judgment and decree of
the trial Court.
The facts giving rise to these appeals, in short, may be
noticed as follows.
One Padma had two sons, namely, Rati Ram and Tek
Chand. Tek Chand had four sons, namely, Tula, Man Singh, Kesar
R.S.A. No. 2009 of 1985. ::-2-::
and Gokal. While Gokal died issueless, Man Singh was statedly
adopted by Rati Ram – the elder brother of his father.
The pleadings and evidence on record reveal that Gokal
son of Tek Chand died issue-less in Samwat-1989 BK, i.e., in the
year 1921 and his share in the joint property was mutated in favour of
his three brothers, namely, Tula, Man Singh and Kesar in the year
1931. Tek Chand had died even prior thereto and his share was
mutated in favour of his four sons, as noticed above [including Gokal,
who died issue-less]. It further appears that there continued to be a
joint-holding amongst not only the sons of Tek Chand but also
amongst the legal heirs of Tula, Man Singh and Kesar. An application
for partition of the joint holding, however, was moved by Daulat Ram
and others – sons/legal heirs of Man Singh but the partition was
declined by the Assistant Collector, Mohindergarh vide order dated
15th July, 1965 on the ground that question of title was involved and
the parties were directed to approach the Civil Court to get the same
decided. It further appears that later on Jagdish Parshad and others,
sons of Man Singh moved another partition application No. 270-RT
dated 2nd February, 1977 before the Assistant Collector Ist Grade,
Mohindergarh in which the present plaintiff-appellants did not appear
despite service on the presumed plea that the second application
was barred by res-judicata. Resultantly, the ex-parte order dated 7th
April, 1978 [Ex.D7] was passed whereby the joint Khewat was
partitioned and separate parcels of land were allotted to various co-
sharers.
It is thereafter that the grand sons of Tula and Kesar,
R.S.A. No. 2009 of 1985. ::-3-::
namely, two deceased brothers of Man Singh, filed the present suit
for declaration on 30th January, 1980 seeking a declaration to the
effect that since Man Singh had been adopted by Rati Ram, he could
not have inherited any share in the share of his natural father – Tek
Chand or his brother Gokal, who died issue-less in the year 1921.
The afore-stated suit having been dismissed by the Courts below,
that the plaintiffs are in these Regular Second Appeals.
I have heard learned counsel for the appellants at some
length and perused the record.
It is urged on behalf of the appellants that since the
parties were governed by the Hindu Law, Man Singh who had been
adopted by Rati Ram could not have inherited the property of his
natural father – Tek Chand or the issue-less brother Gokal. He relies
upon the decisions in [i] Kanshi Ram & Anr. V Situ & Anr., AIR
1934 Lahore, 781, [ii] Rahmat v Ziledar & Anr. AIR [32] 1945
Lahore, 229 and [iii]Salig Ram v Munshi Ram & Anr., AIR 1961
SC, 1374.
There can hardly be any quarrel that when the parties are
governed by the Hindu Law, a son who had gone in adoption can not
inherit the property of his natural father. The question as to whether
the parties are governed by Hindu Law or that there is no
supervening custom are, however, pure questions of facts, to be
determined by the courts below. The predecessors-in-interest of the
appellants could have, at the time when their father Tek Chand’s
estate was mutated jointly in their favour along with Man Singh or
when Man Singh jointly succeeded along with them to the estate of
R.S.A. No. 2009 of 1985. ::-4-::
their issue-less brother Gokal, raised this issue. There are no
pleadings or any evidence led by the appellants to that effect. In fact,
no such plea against the sanctioning of the mutation in favour of Man
Singh or his legal heirs was ever raised by the sons of Tula and
Kesar, namely, the predecessors-in-interest of the present
appellants.
Even at the time of instituting the present suit, the
appellants were apparently uncertain to plead the Hindu Law or the
Customary law to support their plea that Man Singh lost his right to
inherit the estate of his natural father [Tek Chand] or his brother
Gokal, after his adoption by Rati Ram. While the plaint is totally
silent, in their re-joinder the appellants have pressed into aid some
“custom” prevalent in their area. Unfortunately, no such specific
custom has been pleaded or proved as no evidence to that effect has
been led by them.
Learned counsel for the appellants relies upon an
admission made by Jagdish [DW2], who, in his cross-examination,
admits the fact that their predecessor-in-interest – Man Singh was
adopted by Rati Ram. The said evidence, however, is incomplete and
wholly insufficient to divest Man Singh from the estate of Tek Chand
and Gokal as it was imperative upon the plaintiffs to prove that Man
Singh had actually succeeded to the estate of Rati Ram or that in the
matter of succession the parties were governed by Hindu Law.
Similarly, if the appellants wanted to oust the legal heirs of Man
Singh from their share in the properties of Tek Chand or Gokal on the
strength of a ‘custom’ referred to by them in the replication, the same
R.S.A. No. 2009 of 1985. ::-5-::
ought to have been pleaded and proved.
For the reasons afore-stated, I do not find any substantial
question of law that may arise for consideration in these appeals
where both the Courts below have concurrently held that the
declaratory suit filed after a period of more than 50 years when
mutation in respect of the estate of Gokal was sanctioned, is
hopelessly time barred. No interference in the said finding of fact is
called for.
Consequently, there is no merit in these appeals and the
same are accordingly dismissed. However, the parties are left to bear
their own costs.
December 01, 2008. ( SURYA KANT ) dinesh JUDGE