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Dalip Singh Vs. Musammat Man Kuar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All398; 61Ind.Cas.156
AppellantDalip Singh
RespondentMusammat Man Kuar and ors.
Cases ReferredGrdhari Chaube v. Ram Saran Misir
Excerpt:
..... - he admits that harnand was a rich man and conducted money-lending business to the extent of rs. the plaintiff, as the daughter, is the natural heir of jiraj and it was for the defendant to show clearly that he was the nearer heir to him than any other person by reason of his adoption, we therefore, agree with the view taken by the court below of the evidence, oral and documentary, in this case and we hold that the defendant has failed to prove that he was the adopted son of jiraj. the result of an award under section 207 in a case like this would be, that if the court accepted it, it would pass an order in accordance therewith so that the effect of the award could not be in any case higher than that of the order passed in as accordance therewith confirming the award. we are..........mesne profits brought under the following circumstances. the property in dispute belonged to one jiraj singh, at by caste, who died in december 1909 leaving him surviving a widow, musammat indo, and a daughter, man kunwar, who is the plaintiff in this case. his widow, musammat indo, soon after died in the beginning of 1910. in march 1910 an application was put in it behalf of musammat man kunwar for mutation of names in place of that of her lea ceased father. on the same date an application was put in on behalf of the defendant dalip singh and his brother jhandu to have their names mutated in place of that of their deceased father, sis ram, who had died on or about the same time as jiraj. later on, an objection was preferred on behalf of dalip singh to the entry of the name of musammat.....
Judgment:

1. This appeal arises out of a suit for possession and mesne profits brought under the following circumstances. The property in dispute belonged to one Jiraj Singh, at by caste, who died in December 1909 leaving him surviving a widow, Musammat Indo, and a daughter, Man Kunwar, who is the plaintiff in this case. His widow, Musammat Indo, soon after died in the beginning of 1910. In March 1910 an application was put in it behalf of Musammat Man Kunwar for mutation of names in place of that of her lea ceased father. On the same date an application was put in on behalf of the defendant Dalip Singh and his brother Jhandu to have their names mutated in place of that of their deceased father, Sis Ram, who had died on or about the same time as Jiraj. Later on, an objection was preferred on behalf of Dalip Singh to the entry of the name of Musammat Man Kunwar in respect of the property left by Jiraj on the allegation that he, Dalip Singh, was the adopted son of the deceased. This dispute was referred to arbitration and the arbitrators on the 16th of November 1910 made an award upholding the adoption and recommending that mutation of names should be effected in favour of Dalip Singh. This was accordingly done. At that time, both Man Kunwar and Dalip Singh were minor. After Musammat Man Kunwar had attained majority, she, on the 5th of February 1917, instituted the present suit for possession of the property left by her father and also for mesne profits, on the ground that Dalip Singh was not, as a matter of fact, the adopted son of Jiraj Singh, deceased, and that the award was a collusive proceeding and was not binding on her. The defence put forward by Dalip Singh was to the effect that he had been adopted by Jiraj in his life-time and that the arbitration proceedings were binding on the plaintiff and operated as res judicata. The lower Court held on the first question, namely, the adoption, that it was not proved. As to the second point, it came to the conclusion that the only question which was before the Revenue Court for decision was, which of the two persons was entitled to the entry of his name in place of that of the deceased Jiraj Singh and, following the ruling in the case of Girdhari Chaule v. Ram Saran Misir 32 Ind. Cas. 761 : 14 A.L.J. 85, it came to the conclusion that any decision by the Revenue Court on the question of the entry of names in the revenue papers could not bar any of the parties from having the question of his title to the property decided by a Civil Court.

2. It, therefore, decreed the claim for possession and mesne profits. Dalip Singh has preferred the present, appeal and he contests the correctness of the above two findings of the Court below. As regards the first question, namely, that of adoption, he has produced a mass of oral evidence and has also relied on certain documentary evidence. We take up the documentary evidence first; reliance is placed on his behalf on a mortgage-bond of the 17th of June 1907 extended by one Harnand in favour of Dalip Singh in which Dalip Singh is put down as the adopted son of Jiraj Singh. It is alleged on behalf of the defendant that the real creditor under this bond was Jiraj Singh himself and as he had adopted the defendant he had got the bond executed in his favour., The bond itself naturally does not give any indication of this having been the case. The only evidence which the defendant has produced in support of this point is the statement of Bam Singh who has stated that Jiraj really advanced the loan. He admits that Harnand was a rich man and conducted money-lending business to the extent of Rs. 503 or Rs. 1,000. Particular reason has been shown by Harnand who, aooording to the case put forward by the plaintiff, did not require the money for his own use, would go and take a loan from Jiraj. Nor has it been explained why it was that Jiraj who was himself a money-lender on a large scale had this bond executed in favour of Dalip Singh, his alleged adopted son. No circumstances have been shown which ordinarily lead a man to enter into such a transaction. The lower Court thinks that this document was an attempt by Sis Ram and the Patwari, Mukhram, to create evidence in favour of the defendant, Dalip Singh, regarding the adoption. This view may or may not be correct, but the entry in the document is, after all, an admission by Harnand that he considered Dalip Singh to be the adopted son of Jiraj. This would by itself be no evidence of the adoption. It may be that Jiraj kept Dalip with him and possibly wanted to adopt him and that for this reason the executants of the document described him as the adopted son of Jiraj. The description of Dalip in the document does not, therefore, prove the adoption. The defendant has also produced a number of witnesses to prove the adoption. It is significant that none of the relations of the family, which seems to be a large one, were produced to support the fact of the adoption. The witnesses called were men of the most ordinary class and of no status; for instance, a kahar, a cook, a sweeper, a barber, a brahaman, who goes about dining, and an old Patwari. And we cannot disagree with the estimate of the Court below as, to the value of their evidence. The second fact in connection with this matter and which goes to great extent to throw doubts on the fact of this adoption is the non production by Dalip Singh of the account books of Jiraj. That he kept accounts is admitted and proved and as it is alleged by the defendant's witnesses that the adoption ceremony took place on a grand scale, we have no doubt that the account books would certainly have contained entries regarding the expenses of the adoption ceremony had the adoption actually taken place. The abstention of the defendant from producing the account-books throws great doubts on the correctness of the evidence put forward by him, Another point which goes against the defendant's case is that, while the mutation proceedings were pending, there cropped up a criminal litigation. It was compromised, and in that compromise the defendant was described as the son of Sis Ram. In the body of the application for compromise it was stated that Musammat Man Kunwar was the daughter of Jiiaj and was the heir to his property and entitled to it, and that Dalip and others would not interfere with her. We have further the fact, to which we have already referred, that at the time when the application for mutation of names to the estate of Jiraj was put in on behalf of his daughter a similar application was filed on behalf of Dalip Singh along with his brother Jhandu for mutation of names in place of that of their own father Sis Ram. It is not suggested that mutation did not take place in accordance with that application and that Dalip is not in possession of the property left by his natural father, Under these circumstances, we do not think that the defendant can be said to have proved that he was the adopted son of Jiraj. The plaintiff, as the daughter, is the natural heir of Jiraj and it was for the defendant to show clearly that he was the nearer heir to him than any other person by reason of his adoption, We therefore, agree with the view taken by the Court below of the evidence, oral and documentary, in this case and we hold that the defendant has failed to prove that he was the adopted son of Jiraj.

3. Now, we come to the second point, namely, how far the award of the arbitrators in the Revenue Court estopped the plaintiff from litigating the question of her title in the Civil Court. Reliance is placed on Section 207 Clause (2) of the Land Revenue Act which provides that no person shall institute any suit in the Civil Court for the purpose of setting it aside or against the arbitrators on account of their award, The proceedings in the Revenue Court related, as we have already stated, to the entries of names in place of the deceased Jiraj. According to the express provisions of Section 40 of the Land Revenue Act the question of title regarding the property in dispute could be contested by a suit in a Civil Court notwithstanding the fact that the Revenue Court had ordered the entry of the name of a particular person in regard to that property. The result of an award under Section 207 in a case like this would be, that if the Court accepted it, it would pass an order in accordance therewith so that the effect of the award could not be in any case higher than that of the order passed in as accordance therewith confirming the award. We are therefore, of opinion that Section 207 of the Land Revenue Act could not prevent a suit like the present, which was for possession of the property, being instituted in the Civil Court, We agree with the view taken by Mr. Justice Walsh in the case of Grdhari Chaube v. Ram Saran Misir 32 Ind. Cas. 761 : 14 A.L.J., and hold that a suit like the present one is not outside the jurisdiction of the Civil Court.

4. As to the amount of mesne profits, although a plea has been taken in the grounds of appeal we have not been shown any ground for differing from the conclusion arrived at by the Court below. We accordingly dismiss the appeal with costs including in this Court fees on the higher scale.


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