Gurdit Singh Bhai Prem Singh vs Surjan Singh and Others

Teja Singh, C.J.—The suit property belonged to one Attar Singh, carpenter of village Dhuri. He died in Samvat 1982 leaving behind a widow named Mt. Premo. On Mt. Premo''s death which took place oh 23-12-1991 the State authorities took possession of the property on the ground that no heir of Attar Singh was in existence and consequently the property had escheated to the Crown. Three persons put forward their claims. The revenue authorities by their order dated 6-4-1996 directed them to establish their right through a civil Court. On this Gajjan Singh and his brother brought a suit on 7-12-2003 (Suit No. 384 of 2002), and Gurkirat Singh on 1-6-2003 (suit No. 258 of 2003). The third claimant took no action. Proceedings in both the cases were consolidated and the Plaintiffs in one case were made Defendants in the other. The Plaintiffs in the first case contended that they were Attar Singh''s collaterals and were, therefore, entitled to succeed to the property left by him, The allegation of Gurkirat Singh, the Plaintiff in the other case was that his father Prem Singh had been adopted as a son by Attar Singh during his lifetime and he was, therefore, the legitimate heir of Attar Singh. Gajjan Singh and others denied Prem Singh''s adoption and also pleaded that if any adoption took place it was not valid and was never given effect to. Gurkirat Singh in his tern challenged the alleged relationship of Gajjan Singh and his brother with Attar Singh. It may here be mentioned that a part of the suit property consisting of 1 bigha of land had been sold by public auction in execution of a money decree against Mt. Premo and had been bought by Ram Parshad. This Ram Parshad had also been impleaded as a Defendant to the two cases on the plea that the auction Bale in his favour was invalid.

Seven issues were raised in the first case. They were: (i) whether the Plaintiffs were Attar Singh''s collaterals; (ii) whether the suit land was ancestral qua them; (iii) whether the suit was within time in respect to the land bought by Ram Parshad; (iv) whether proper Court-fee had been paid; (v) whether a suit in respect of the land purchased by Ram Parshad was competent and was not barred by Section 47, Code of Civil Procedure; (vi) whether Ram Parshad had bought the land in the auction sale and had become an owner thereof; and (vii) whether the Plaintiff''s right to succeed to the property left by Mt. Premo was preferential to that of Gurkirat Singh. In the second case, there were four issues; viz. (i) whether Gurkirat Singh could (sic) and his brother; (ii) whether his father was adopted by Attar Singh; (iii) whether the suit in respect of the land bought by Ram Parshad was maintainable and (iv) whether it was within time. The trial Sub-judge held that Gajjan Singh and his brother had not been able to prove that they were Attar Singh''s collaterals, while Gurkirat Singh had succeeded in establishing that his father was adopted by Attar Singh. It further held that Ram Parshad had validly bought the land of which he was in possession in execution proceedings and had become an owner thereof and that the suits against him were barred by time. In the result it dismissed the first suit but decreed Gurkirat Singh''s suit about the whole land except that part of it which was in Ram Parshad''s possession. Gajjan Singh and his brother appealed to the District Judge from the decrees of the trial Sub-Judge in both the cases. The learned District Judge set aside the findings of the trial Sub-Judge both as regards the relationship of Gajjan Singh and other with Attar Singh and the adoption of Gurkirat Singh''s suit and granted a decree to Gajjan Singh and his brother with respect to the suit land minus the land that was claimed by Ram Parshad Gurkirat Singh has now preferred a regular second appeal to this Court.

Two questions fall for determination in the appeal; (l) Whether Gajjan Singh and his brother are Attar Singh''s collaterals and (2) whether the Appellant''s father was duly adopted as a son by Attar Singh. The learned District Judge has answered the first question in the affirmative and the second in the negative. The evidence regarding the first point was documentary as well as oral. But it is conceded by both the counsel that the oral evidence did not advance the matter. So far as the documentary evidence is concerned the most important is Ex. P.C., a copy of the pedigree-table prepared in Faridkot State in the settlement of 1964-65. According to this document Budh Singh had four sons, Jawahar Singh, Dava Singh, Bela Singh and Fatech Singh. Deva Singh''s son was Attar Singh and Bela Singh''s son was Bara Singh, Gajjan Singh, Surjan Singh and Arjan Singh are the sons of Bara Singh. If this document is acceded as correct there can be no doubt that Gajjan Singh and others were Attar Singh''s collaterals in the fourth degree. It is not denied that a presumption of correctness attaches to a pedigree-table prepared m the settlement. The objection taken by the Appellant''s counsel against the admissibility of this document was that it was not certified by proper authority u/s 79, Evidence Act. The learned District Judge thought that there was no force in this objection but he did not give a definite finding thereon and as a matter of precaution he ignored this document and based his conclusion upon other documents. I am inclined to think that the document must be accepted as proper evidence and acted upon. In the first place, it may be observed that the relevancy of the original pedigree-table not being in doubt the question whether Ex. P.C. which purports to be the copy of it, should or should not have been admitted, relates to the mode of proof of the document and it is now well settled that when no objection is taken to the admission of a document in evidence at the time it is produced in Court, the party opposing its production cannot take any objection at a later stage. The correctness of this proposition is not denied by the Appellant''s counsel but he argued that the document was never properly tendered in evidence and so there was no occasion for his client to raise any objection to its admissibility. This contention is without doubt wrong. The record shows that Ex. P. C. was one of the documents which were produced by Gajjan Singh and others along with their plaint and it was mentioned in so many words in the plaint that they were doing so as a proof of their relationship with Attar Singh. In the written statement that the present Appellant filed in that case, he denied that Attar Singh was in any way related to Gajjan Singh and his brother but he did not take any objection to the admissibility of the documents and particularly to that of the pedigree table on the ground that it was not certified by a proper authority. Evidently, therefore, it was for this reason that the trial Court admitted the document in evidence and exhibited it. Secondly it may be pointed out that the document bears a seal in which appears the signature of one S. Hazura Singh who was described as an officer who certified the copy, and it is mentioned in the seal that the said officer had the authority to certify it u/s 79, Evidence Act. The last clause of Section 79 lays down that the Court shall also presume that any officer by whom any such document purports to be signed or certified held, when signed it, the official character which he claims in such paper and in view of this the document must be presumed to be duly certified.

Next comes the document Ex. P.H. a certified copy of mutation No. 1769 by which certain land left by Mat. Premo in Faridkot State was mutated in the name of Surjan, Gajjan and Arjan Singh. There is no dispute regarding the validity to this copy and no objection was taken to its admissibility. In the body of the order sanctioning the mutation is given a pedigree, table of Budh Singh''s family including on one hand Deva Singh and on the other Bara Singh and his three sons. It was urged before us that there was presumption of the correctness of this pedigree-table also. But I find it difficult to accept this proposition. A perusal of the order of which the pedigree-table forms part makes me think that it was not taken from any authentic document but was propounded before the mutating officer by some of the persons present before him. Under the circumstances it represents merely a statement made by some one and there being no proof as to who made the statement, whether he was a member of Budh Singh''s family or otherwise had special means of knowledge of the relationship and whether that person is still alive, the statement does not constitute legal evidence. The document is, however, valuable to this extent that it shows that Gajjan Singh and his brothers were recognised as the heirs of Mt. Premo in respect of some other property left by her. This strengthens the conclusion that they were the collaterals of her husband and the pedigree-table contained in Ex. P.C. must be correct.

The third document Ex, P.G. which is a copy of the Far Tafreeq Khewat of 1916 shows that Deve Singh, Bela Singh, Fateh Singh and Jawakar Singh were the sons of Budh Singh and were in joint possession of joint land in 1916. This also goes to support the correctness, if not of the whole of the pedigree-table given in Ex. P.C., but of a part of it. I, therefore, find that the decision of the District Judge on this point is not open to any exception.

Coming now to the question of adoption. The learned District Judge appears to have taken the view that so far as the factum of adoption is concerned it was admitted by the other side and it could not be denied. He, however, held that in addition to the factum of adoption it was Appellants'' duty to establish that the adoption was valid, that is to say, it was accompanied by all the ceremonies and since he had failed in this, the adoption had no value and it did not give the Appellant any right to succeed to the property left by Mt. Premo. After having heard the counsel for the parties at considerable length, I am of the opinion that it is wrong to Bay that the factum of adoption was admitted by the opposite party. In the written statement put in by them, they challenged the adoption and it was because of this that an issue on point was raised. It is true that when Gajjan Singh came in the witness box he made a statement on 6-12-2008 that Attar Singh and Premo adopted Prem Singh but taking into consideration the fact that according to the Appellant''s the adoption took place on 11-8-1976 and at the time Gajjan Singh made the statement, he was only 40 years old, it is doubtful whether he had any personal knowledge of the fact. Moreover Gajjan Singh''s admission, even if his statement be regarded as one, could not bind his brother and as against them, the Plaintiff was bound to prove the factum of adoption by positive evidence and from what I shall state hereafter it will be clear that the evidence that he produced had no value. Stress was laid on his behalf on what was described as a registered deed of adoption which was alleged to have been executed by Attar Singh on 11-8-1976. But strangely enough the document brought on the record consisted only of a copy of the registered deed and there being no evidence to show us to what had happened to the original and why it is not produced in Court, the copy was not admissible. Apart from this the Appellant did not examine any attesting witness of the document. This means that there was no proof that the document in question was executed by Attar Singh. It appears to me that the trial Court was aware of this omission and for this reason the copy was neither properly exhibited nor marked. Furthermore a perusal of the contents of the document must also negative the Appellant''s contention that his father was adopted. It may here be pointed out that Attar Singh was a carpenter and so was the Appellant''s father. It was never alleged that they were governed by custom. So the presumption is that Hindu law applied to them and according to that law Prem Singh could succeed to the property of Attar Singh or his widow if he was adopted by him. The contents of the document on the other hand would go to show that Attar Singh merely appointed Prem Singh as his heir and in addition gifted his entire property to him. It need not be said that appointment of an heir recognised though it is by Customary law, is unknown; to Hindu law and if a person is governed by Hindu law he cannot confer the rights of a son upon another person by simply appointing him as an heir. So even if we take into consideration the copy of the registered deed relied upon by the Appellant it cannot confer the status of an adopted son upon his father and consequently it does not vest him with any right to succeed to the property left by Mt. Premo. In the course of the arguments our attention was drawn to the protracted litigation that went on between the present Appellant and Mt. Premo in the revenue Courts. At first the land was mutated in favour of the Appellant. When the matter went up before the Revenue Secretary he held that the Appellant''s father was Attar Singh''s adopted Bon and Mt. Premo was merely entitled to maintenance. Accordingly he allowed the land to remain in Mt. Premo''s name but ordered that on her death it should go to the Appellant. On further appeal, to the Revenue Minister the order of the Revenue Secretary was set aside and Appellant''s claim was rejected arid it was held that the adoption of his father by Attar Singh had not been proved. I do not consider it necessary to discuss the orders made in these proceedings because both sides agreed that they are not binding upon the civil Courts. All that need be mentioned is that though the Revenue Minister made an order against the Appellant on 6-10-1981, and the land was finally mutated in Mt. Premo''s name on 2-1-85 the Appellant kept quiet over the matter and did not assert his rights during Mt. Premo''s life time. This shows that he was conscious of the weakness of his claim.

For all these reasons I would dismiss the appeal but taking into consideration the peculiar circumstances of the case, I would leave the parties to bear their own costs.

Chopra J.

I concur.