Bhagat Ram and Others vs Lachhmu and Others

Devinder Gupta, J.—This Letters Patent Appeal has been filed by the Plaintiffs-Appellants against the judgment of the learned single Judge of this Court dated June 2, 1975, rendered in Regular Second Appeal No. 152 of 1968, dismissing the appeal and confirming the judgment and decree passed on June 26, 1968 by District Judge of the then Mahasu District, who had dismissed the appeal and had confirmed the judgment and decree passed by the Subordinate Judge, Theog on (sic) December 30, 1967, dismissing the suit of the Plaintiffs -Appellants.

Common ancestor of the parties was one Ganga, who had four sons, namely, Kehroo, Bhajnoo, Atma and Chehroo alias Jharu. Kehroo and Chehroo died issueless. Balia, Ram Nath and Krishna, the Plaintiffs were the son of Bhajnoo. Kanshi Ram, Shiboo and Motia Defendants were the sons of Atma. On the death of Motia, Defendant No. 3, his widow Smt. Sandhroo was brought on record as his legal representative and she is Respondent No. 3 in this appeal. Ram Nath and Shiboo died during the pendency of this appeal without leaving any heirs and their names have thus been deleted from the array of Parties. Balia and Krishana Plaintiffs-Appellants and Kanshi Ram, Defendant, also died during the pendency of this appeal and their legal representatives have also been brought on record.

The dispute pertains to the immovable property, 49 big has 7 bis was in extent, situate in village Shabogh and 16 big has 12 bis was in Village Shiva along with two residential houses, Khalyan and Kharolis etc. situate in these villages. Both these villages were the part of erstwhile princely State of Madhan. Plaintiffs and Defendants were entered as co-owners in equal shares in respect of this land.

The Plaintiffs brought a suit on January 15,1965, for grant of decree for declaration to the effect that they are owners in possession of the suit land to the extent of 1/2 share and by way of consequential relief they also sought a decree for injection restraining the Defendants from alienating the property in any manner. In the alternative, it was also prayed by the Plaintiffs that decree for joint possession be granted. The suit was resisted by the Defendants on various pleas. It was averred that Thakur Sahib (Ruler) of the then princely State of Madhan had turned out the sons of Ganga from the state and the land in suit was then brought under the cutlivation of the State and the Ruler thereafter handed it over to some other person for the purpose of cultivation. After a couple of years the Rule rehired the land exclusively to kehroo, one of the sons of Ganga, on payment of Nazrana and it was he who owned the land exclusively as owner. Kehroo then adopted Kanshi Ram and Motia, Defendants, and gave the land exclusively to them. It was further, contended by the Defendants that even if the Plaintiffs had any right, title or interest in the property, the same stood extinguished for the reason that about twenty-five years when they (the Plaintiffs) made a claim for share in the property, the same was repudiated by the Ruler and the Defendants. By way of additional plea, it was further pleaded by the Defendants that the father of the Plaintiffs had admitted Kehroo and thereafter the Defendants to be the exclusive owner and acting on such admission, the Defendants had improved the property and as such the Plaintiffs were estopped from claiming any share in the property. One more plea was advanced by the Defendants to resist the suit was that the Plaintiffs had forfeited their right in the property in view of the custom prevalent in the princely State at that time. The custom, according to the Defendants, was that a person, on becoming a subject of other princely State, used to forfeit his rights in the property in the state and since the Plaintiffs as well as their father had become the subjects of Keonthal State they had lost all their right, title and interest in the property which was within the princely State of Madhan. The Defendants cited an example of the Plaintiffs becoming the subjects of Keonthal state. According to the Defendants, the Plaintiffs on the deaths of Rulers of the Keonthal State got performed Sirbhadra (shaving of heads) and since such ritual was compulsory for the subjects of princely States of Madhan and Keonthal, the act of performing Sirbhadra by the Plaintiffs as well as their father was sufficient to show that they were the subjects of Keonthal State, and ceased to be the subjects of Madhan state, and had no right, title and interest in the properties situate within the Madhan State.

The trial court came to be conclusion that the Defendants had failed to establish that sons of Ganga had been turned out by the Ruler from Madhan State. It further held that the Defendants could not prove any exclusive title in the property nor could they prove that the Plaintiffs were ever estopped in any manner from claiming their share in the property. The trial court was further of the view that the Plaintiffs had not forfeited their right with respect to the property situate within Madhan State simply for the reason that they got performed Sirbhadra and that Kanshi Ram and Motia had been adopted by Kehroo. As a consequence of the findings of the trial court, a declaratory decree was granted in favour of the Plaintiffs to the effect that they are co-sharers in possession to the extent of l/3rd share and the remaining 2/3rd share was held by the Defendants.

Feeling aggrieved, the Plaintiffs preferred an appeal before the District Judge, challenging the decision of the trial court on the ground that the findings recorded by it with regard to the valid adoption of Kanshi Ram and Motia Defendants were incorrect. Defendants also preferred cross-objections. The learned District Judge dismissed the appeal as well as the cross-objections by upholding the validity of the adoption. Plaintiffs then carried the matter in regular second appeal to this Court and the Defendants too preferred cross-objections. Both the appeal as well as the cross-objections were heard and disposed of by the learned single Judge vide the impugned judgment dated June 2, 1975. Undaunted, the Plaintiffs-Appellants carried the matter further by filing the present Letters Patent Appeal against the judgment of the learned single Judge.

During the course of the hearing of the appeal, learned Counsel for the Appellants has laid stress only on one point, namely, that the adoption of Kanshi Ram and Motia Defendants was not valid and findings to the contrary recorded by all the courts below are unsustainable in law.

On the question of adoption, the plea raised by the Defendants in their written statement was to the effect that during the life time of Kehroo, he adopted Defendants Kanshi Ram and Motia and put them in possession of the suit land. The Plaintiffs repudiated this plea in the replication by stating that they did not admit the alleged adoption or the making of any application for permission in that behalf. In support of the plea of adoption, the Defendants examined DW 8, Basant Singh, the nephew of the then Ruler of princely State of Madhan and proved documents Exs. DA and DB. Document Ex. DA is the order passed on 15-10-1968 BK on the application of Kehroo seeking permission from the Ruler of Madhan to adopt Kanshi Ram and Motia as his sons and ordering the issuance of a Patta evidencing the accord of such permission. Ex. DB is the Patta issued in pursuance of the order contained in Ex. DA. Besides adducing in evidence these two documents, no other evidence has been led by the Defendants.

Learned Counsel for the Appellants made three-fold arguments before us. Firstly, that there was no legal and valid adoption since the Defendants had failed to adduce evidence that the ceremony of giving and taking, which was one of the essential requirements, for valid adoption, had not taken place. Support for this argument was sought by the learned Counsel from a decision of the Supreme Court in Lakshman Singh Kothari Vs. Smt. Rup Kanwar, . Secondly, that simultaneous adoption of two or more persons is void in respect of both of them and for this reliance was placed by the learned Counsel upon Para 485 of Mulla''s ''Principles of Hindu Law'' fifteenth Edition, and, thirdly, that it was incumbent upon the Defendants to have alleged and proved the custom, if any, with respect to adoption and in support of this argument also reliance was placed upon a decision in Saraswathi Ammal Vs. Jagadambal and Another,

Learned Counsel for the Respondents has, on the other hand, refuted arguments advanced by the learned Counsel for the Appellants by urging that in this case provisions of Hindu Law were not applicable. No special custom had been alleged and, therefore, it was not necessary for the Respondents to make any averments as agitated by the Appellants. It was further contended by the learned Counsel for the Respondents that the erstwhile Ruler of Madhan was supreme in all his internal matters and there were no constitutional limitations upon the Ruler and he was free to act in the manner he liked. His word was law. Sanction of the adoption accorded by him and as evidenced by documents Ex. D.A. and Ex. D.B. was perfectly in accordance with law.

In support of the first two arguments, learned Counsel for the Appellants stressed that as the parties were Hindus, therefore, presumption in law is that in all matters of adoption they were governed by the Hindu as Law and since the adoption was not in accord with the provisions of Hindu law, therefore, the only conclusion which could have been drawn was that the same not valid. The third argument, advanced by the learned councel for the Appellants, is dependent upon the result of the first two arguments. In so far as the applicability of the Hindu Law is concerned, the power of the courts in India to apply the same to Hindu is derived from and is regulated by certain statutes of the British Parliament and by Imperial and Provincial legislation passed during the period of British rule, which unless altered or repealed will continue to be in force under the express provisions contained in Article 372 of the Constitution. It was by virtue of Section 7 of the Himachal Pradesh (application of Laws) Order, 1948 that the provisions of Section 5 of the Punjab Laws Act, 1872, were made applicable to Himachal Pradesh, on the basis of which the provisions of Hindu Law were made enforceable in that part of the territory which formed part of the princely State of Madhan. In case rule of Madhan was an autocratic Ruler in all executive, legislative and judicial functions and his word itself was law, then I should have been pleaded and agitated before the courts below but this was never done. Kehroo, one of the sons of Ganga, approached the Ruler of the State by moving the application on 15-10-1968. BK (corresponding to 10th May, 1919 AD), seeking permission to adopt the two of his brother''s sons on certain conditions and it was by virtue of Patta, Ex. DB, that the sanction was accorded by the Ruler. The English translation of Ex. DB reads as under:

Before Shariman Thakur Sahib Bhadur, Chief of Madhan.

To

Kanshi Ram and Motia, Sons of Atma Ram Kanait (Rajput) of Village Shabog, Pargana Dharti, Madhan State.

In Sanction of application of Shri Kehru Kanait of village Shabog your adoption in equal shares as sons of Kehru applicant subject to the following terms and on condition of paying Rs. 150/- as Nazrana is being sanctioned.

Conditions

a. You shall be liable to maintain Shri Kehru applicant according to his status.

b. You shall be liable to pay the land revenue and unpaid (forced) mcbour etc. of the State.

c. You shall be liable to pay the debts and discharge all other liabilities etc. of the said Kehru.

d. If later on Kehru applicant begets a son then he would also be entitled to a share along with you.

e. If you resile from (fail to comply with) the above mentioned conditions then Kehru applicant would be entitled to revoke (cancel) the agreement.

Hence subject to the above mentioned conditions you are granted this patta as a Sanad by way of the sanction for your adoption. Dated 10-5-1919.

Sd/-

Ex. DB being an act/order of the Ruler will be deemed to be law and as such adoption made there under will also be deemed to be an adoption made in accordance with law.

The position with respect to the orders of autocratic Rulers amounting to legislation and binding upon the subjects of the State came up for consideration before the Supreme Court in AmeerunNissa Begum and Ors. v. Mahboob Begum and Ors. (AIR 1955 - SC 352) , Director of Endowments, Government of Hyderabad and Others Vs. Akram Ali, , Madhaorao Phalke Vs. The State of Madhya Bharat, , and Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, , wherein it was held that there being no limitations upon the authority of the Rulers to act in any capacity, their orders had the force of law to govern and regulate the affairs of the State including the rights of citizens. An almost a similar question was also delta with by a Full Bench of the Patiala and East Punjab States Union High Court in Gurudwara Sahib Siri Tej Bahadur Gaja v. Piyara Singh (AIR 1953 PEPSU l). The view of their Lordship in this case, was that the executive orders of the Rulers of princely States in so far as internal matters were concerned were final and conclusive and were immune from being questioned in courts. In view of this legal position, the arguments advanced by the learned Counsel for the Appellants have no force.

The third argument of the learned Counsel for the Appellants, that it was for the Defendants to have alleged and proved the custom and they having failed to specifically allege in the written statement that the custom of adoption, which they tried to prove by adducing documentary evidence, Ex. DA and Ex. DB, their plea based upon such custom cannot be looked into, has also no force as the Defendants have nowhere pleaded the custom. They merely asserted that they had been adopted in accordance with law and the courts below were right in their view that the manner in which the adoption took place, after according sanction by the Ruler, was a valid adoption in law.

The result is that the appeal fails and is dismissed with costs.