SBCMA No.280/1996
Hazari Ram Vs. Smt. Mana Devi & Ors.
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SBCMA No.280/1996
Hazari Ram Vs. Smt. Mana Devi & Ors.
DATE OF ORDER : - 5.2.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr. AK Rajvanshy, for the appellant.
Mr. SG Ojha, for the respondents.
Heard learned counsel for the parties.
The appellant is aggrieved against the order of the
trial court – the court of District Judge, Churu by which the
appellant’s application for grant of probate and for alleged
Will dated 10.8.1972 was rejected.
According to learned counsel for the appellant the
deceased Khema Ram at the age of 70 years executed a
deed on 10.8.1972, which is registered and it purports to be
an adoption deed, but in fact, apart from adopting the
appellant, Khema Ram bequeathed his all movable and
immovable properties in favour of the applicant Hazari Ram.
The deed dated 10.8.1972 is admitted document and one of
the attesting witness Ishar Ram proved the fact of said
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Hazari Ram Vs. Smt. Mana Devi & Ors.
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document to be Will. It is also submitted that if all
surrounding circumstances are taken into account then also
it is proved that Khema Ram would have executed the Will
because he was of the age of 70 years and had no other
male issue to him and the applicant was son of Khema
Ram’s brother and was living with the deceased Khema Ram
till Khema Ram died. Not only this, the applicant
discharged his all pious obligation as a son who become son
by adoption. In view of the above reason, the court below
committed serious error of law in interpreting the document
dated 10.8.1972 and committed error of law by holding that
by this document the properties have not been bequeathed
in favour of the applicant.
Learned counsel for the appellant relied upon the
judgment of the Hon’ble Apex Court delivered in the case
of Navneet Lal @ Rangi Vs. Gokul & Ors reported in AIR
1976 SC 794 wherein principles have been given by the
Hon’ble Apex Court following earlier decisions of the
Hon’ble Supreme Court to show how a document can be
construed properly and correctly. It is submitted that mere
title is not sufficient and the intention of the executant is
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Hazari Ram Vs. Smt. Mana Devi & Ors.
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required to be seen with reference to all surrounding
circumstances to construe the document properly. It is also
submitted that in what circumstances, the document can be
treated to be Will depends upon the totality of the facts of
the case and according to learned counsel for the appellant
as stated above, there are all circumstances in favour of the
applicant and further more there is unequivocal words used
in the adoption deed that all the properties shall belong to
the applicant.
Learned counsel for the appellant also relied upon the
judgment of Gauhati High Court delivered in the case of
Guneshwar Chutia Vs. Haren Chutia reported in AIR 1974
Gauhati 73 and with the help of this decision, learned
counsel for the appellant submitted that only jurisdiction of
the probate court is to find out whether the document set
up as a Will is actually Will and whether it had been
executed and attested by the alleged testator in the state of
sound mind. In this case, the testator Khema Ram clearly
mentioned that the applicant will be the owner of the
property, which may vest in favour to the deceased.
Learned counsel for the appellant also relied upon the
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Hazari Ram Vs. Smt. Mana Devi & Ors.
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judgment of the Hon’ble Apex Court delivered in the case
of Meenakshiammal (deceased by LRs) and Ors Vs.
Chandrasekaran & Anr reported in AIR 2005 SC 52 wherein
the property was given to third person leaving apart real
sisters even then the Hon’ble Apex Court found that Will is
genuine, but in this case, the appellant is son of real brother
and deceased who had no male heir and he is adopted son
also.
I considered the submissions of learned counsel for
the parties and perused the record.
It is settled law for construction of document that if
the language used in the document are clear and
unambiguous then by pleading no party can alter the
language used in the deed. It is also settled law that title of
the document may not be relevant if the document
otherwise says. According to learned counsel for the
appellant the court below has mis-interpreted the deed
dated 10.8.1972. However, I find that it is not so simple as
stated by learned counsel for the appellant in view of the
fact that the entire tenure of the document clearly shows
that the document was executed probably for taking in
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Hazari Ram Vs. Smt. Mana Devi & Ors.
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adoption by the executant Khema Ram and the witnesses
produced by the applicant including the applicant himself
stated that the deed in question is adoption deed
(Gaudnama). The same was the statement of even AW-1
Ishwar Lal, who also clearly stated that an adoption deed
was executed by Khema Ram. It will be worthwhile to
mention here that the deceased Khema Ram had three
daughters and admittedly there is no pleading why those
real daughters have been excluded by Khema Ram from the
natural succession and mere incidental fact cannot be
sufficient to hold that since he took in adoption his real
brother’s son, therefore, the natural successors have been
excluded. Apart from above fact, the language used in the
deed Ex.1 that my adopted son shall be entitled to take
what the executant is entitled to take and will be entitled to
pay what the executant is under obligation to pay and the
adopted son will discharge his obligation as his son
(obviously after adoption) and towards his daughters etc
which is the usual recital used by any adoption deed. By
deed dated 10.8.1972, the daughters of the executant have
not been excluded from taking any share in the property
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Hazari Ram Vs. Smt. Mana Devi & Ors.
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and because of mere saying that his adopted son shall be
entitled to succeed to properties of executant by writing in
the deed dated 10.8.1972, it cannot be inferred that by
implication they have been excluded. The language used
further suggests that the executant had very cordial and
affectionate relation with his daughters, therefore,
specifically he put obligation upon the applicant to discharge
his liability towards his sisters.
In view of the above reasons and from the facts, the
judgments relied upon by learned counsel for the appellant
cannot be applied. It is not a case where there is any no
good relation between father and daughters who are the
natural successor and have been excluded as was the case
in the judgment of the Hon’ble Apex Court delivered in the
case of Meenakshiammal (supra).
In view of the above reasons, I do not find any merit
in this appeal and the same is hereby dismissed.
(PRAKASH TATIA), J.
c.p.goyal/-
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