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Kishen Singh and ors. Vs. Taru and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H342
AppellantKishen Singh and ors.
RespondentTaru and ors.
Cases ReferredGurbachna v. Bujha
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........issues were framed by the trial court:1. whether defendant 1 is validly adopted son of mahain singh deceased?2. if issue 1 is decided in favour of the defendant 1, is the land in dispute ancestral qua the plaintiffs?3. if issue 2 is decided in favour of the plaintiffs is the suit within time?4. if issue 2 is decided in favour of the plaintiffs was mahain singh competent to adopt?5. if the above issues are decided in favour of the plaintiffs what is their share in the land in dispute?6. whether the plaintiffs are estopped from suing by their conduct?7. relief.the trial court found that taru was 'adopted by mahain singh deceased during the former's infancy and in the presence of the brotherhood. on the second issue, it was held that the land situate in village chogwan rupowali was.....
Judgment:

Harnam Singh, J.

1. The dispute out of which this appeal has arisen relates to the inheritance of Mahain Singh who owned a 1/6th share in 354 kanals and 12 marlas of land situate in village Ohogwan Rupowali and 1/6th share in 244 kanals 15 marlas situate in village Chowinda. He died in the beginning of the year 1943 and the mutation in respect of the land left by him was sanctioned on 20th January 1944 in favour of Taru defendant 1 as the adopted son of the aforesaid Mahain Singh. The plaintiffs who are collaterals of the deceased Mahain Singh in the second degree instituted a suit on 4th April 1944 for possession of 1/8th share of the lands in the two villages on the allegations that Taru defendant 1 was not the adopted son of Mahain Singh and that he was not entitled to succeed to the property left by the said Mahain Singh in preference to themselves. The land left by Mahain Singh was alleged to be ancestral qua the plaintiffs. The suit was resisted by Taru, defendant 1, on a number of pleas, on which the following issues were framed by the trial Court:

1. Whether defendant 1 is validly adopted son of Mahain Singh deceased?

2. If issue 1 is decided in favour of the defendant 1, is the land in dispute ancestral qua the plaintiffs?

3. If issue 2 is decided in favour of the plaintiffs is the suit within time?

4. If issue 2 is decided in favour of the plaintiffs was Mahain Singh competent to adopt?

5. If the above issues are decided in favour of the plaintiffs what is their share in the land in dispute?

6. Whether the plaintiffs are estopped from suing by their conduct?

7. Relief.

The trial Court found that Taru was 'adopted by Mahain Singh deceased during the former's infancy and in the presence of the brotherhood. On the second issue, it was held that the land situate in village Chogwan Rupowali was ancestral, but that the land situate in village Chowinda had not been proved to be ancestral qua the plaintiffs. The trial Court further held that the suit to contest the factum as well as the validity of the adoption was barred by limitation. The fourth issue was decided in the defendant's favour. The trial Court did not give any decision on the fifth and the sixth issues and in the result, the plaintiffs' suit was dismissed.

2. On an appeal by the plaintiffs, the learned District Judge held that even the land situate in village Chowinda had been proved to be ancestral qua the plaintiffs. He further held that the alleged adoption of Taru by Mahain Singh during the former's infancy had not been proved and that the deed of adoption executed and registered on 10th October 1941 by itself was insufficient to constitute Taru the adopted son of the deceased. The decision of learned trial Judge on the question of limitation was also reversed and it was held that in view of the decision on the question of the factum of adoption, the question of limitation did not arise. The plaintiffs were found entitled to a 3/5th share in the inheritance of Mahain Singh and in the result their appeal was accepted and they were granted a decree for possession of a 1/10th share in the two holdings which amounted to a 3/5th share of Mahain Singh's 1/6th share in the aforesaid holdings.

3. Taru defendant 1, came up in second appeal to the High Court and the sole question that arose for determination in the second appeal was whether the appellant's adoption by Mahain Singh had been proved. The learned Single Judge came to the conclusion that Mahain Singh deceased did intend to appoint the appellant as his heir and that such intention had been quite unambiguously and unequivocally manifested by him by executing and registering the deed D. 1 and by his treatment of the appellant as his son. He accordingly, allowed the appeal and set aside the judgment and decree of the learned District Judge and restored the decree of the trial Court dismissing the plaintiffs' suit.

4. The plaintiffs have come up under Clause 10 of the Letters Patent against the judgment of the learned Single Judge through Mr. Amolak Ram Kapur and Mr. Shamair Chand has appeared for Taru respondent.

5. Mr. Amolak Ram Kapur, learned Counsel for the appellants, urges that the learned Single Judge was not competent in second appeal to interfere with a finding of fact reached by the first appellate Court. He contends that the testimony of Mula Singh and Mt. Tej Kaur was found to be unsatisfactory by the lower appellate Court and, therefore, it was not open to the learned Single Judge hearing the second appeal to reverse that finding. He further contends that in any case the finding of the learned Single Judge on issue No. 1, is not sustainable.

6. Now the learned Single Judge has interfered with the finding of fact on issue No. 1 on the ground that the first appellate Court had failed to consider the evidence as to the treatment of the appellant by the deceased, both previous and subsequent to the execution of D. 1. The rule that a finding of fact to be binding on a Court of second appeal must be a judicial decision reached on the consideration of the whole of the evidence is firmly established and where it appears that all the evidence available, is not considered, the High Court will interfere and should interfere in second appeal.

7. In the present case, the learned District Judge has found that the oral evidence of Mula Singh and Mt. Tej Kaur relating to the factum of adoption is unsatisfactory. He has, however, in no part of the judgment rejected the testimony furnished by the statements of Mula Singh and Mt. Tej Kaur as to the treatment of the appellant by Mahain Singh deceased, both previous and subsequent to the execution of D 1. In fact in coming to a decision on issue No. 1 he has not considered the evidence of Mula Singh and Mt. Tej Kaur as to the treatment of the appellant by the deceased. That being so, it was open to the learned Single Judge in second appeal to reconsider the finding on issue No. 1, in the light of the evidence as to the treatment of the appellant by the deceased furnished by the statements of Mula Singh and Mt. Tej Kaur.

8. Mr. Amolak Ram Kapur next urges that when the statements of Mula Singh and Mt. Tej Kaur were found to be unsatisfactory on the factum of adoption their testimony as to the treatment of the appellant by Mahain Singh deceased ought not to have been accepted by the Court in second appeal. The testimony of Mula Singh D.W. 5 and Mt. Tej Kaur D.W. 6 was rejected on the factum of adoption by the learned District Judge on the ground that in view of the whole of the suit land having been found to be ancestral in the hands of the deceased, Mt. Tej Kaur, daughter of Mahain Singh, deceased, could possibly have no claim against second degree collaterals and that under the circumstances, Mt. Tej Kaur and her husband Mula Singh could not be looked upon as having given evidence adverse to their own interest. The learned Single Judge has, however, held that it was not at all fair for the learned District Judge to presume the same knowledge, as to the character of the property left by the deceased, in the witnesses as he himself acquired after a perusal of the relevant entries in the revenue records especially when an experienced judicial officer like the trial Judge reached the conclusion that the land situate in village Chowinda had not been proved to be ancestral. Again, the learned District Judge has nowhere in his judgment rejected the testimony of D.W. 5 and D.W. 6, in its entirety. That being so, it was open to the Court in second appeal to act upon that part of the testimony of D.W. 5 and D.W. 6, which had not been consider-led by the lower appellate Court.

8. The only question that remains for consideration is whether the judgment of Achhru Ram, J. on issue No. 1 is sustainable on merits. The counsel for the appellant urges that the scope of an appeal under Clause 10 of the Letters Patent is not conditioned by the limitations mentioned in Section 100, Civil P.C. He bases himself in this behalf on Jogesh Chandra v. Sasi Kumar : AIR1930Cal321 and Biharilal v. Gyaniram A.I.R. 1943 Nag. 23. In Jogesh Chandar Ray v. Sasi Kumar Dey and Ors. reported as : AIR1930Cal321 it was held that in an appeal under Clause 10 of the Letters Patent the Court is not required to confine itself to facts and circumstances as disclosed by the judgment appealed against under Letters Patent but is entitled to look into the judgment of the first appellate Court. In Biharilal Asaram Sao v. Gyaniram Naradn Power and Ors. reported as A.I.R. 1943 Nag. 23 it was held that in a Letters Patent Appeal the Court cannot travel beyond the facts given in the judgment under appeal. These authorities are, therefore, of no assistance in the determination of the scope of a Letters Patent Appeal. The scope of a Letters Patent Appeal came up for examination in Upendra Nath Bose v. Bendeshri Prosad reported as A.I.R. 1916 Cal. 843. Clause 15 of the Letters Patent of the Calcutta High Court corresponds to Clause 10 of the Letters Patent of this Court. In interpreting Clause 15 of the Letters Patent Mookerjee J. held:

Indeed, it is reasonably clear from the terms of Clause 15 of the Letters Patent that the appeal is allowed, not against what is called judgment under the Code of Civil Procedure, but against what corresponds to a decree or an order. That clause allows an appeal from the Judgment not being a sentence or order passed or made in any criminal trial. The term 'judgment' here means not the statement given by the Judge of the grounds of his decree or order, but the sentence of the law pronounced by the Court upon the matter contained in the record (Co. Litt. 39a, 168a; 3 Blackatone's Commentaries, 395). A judgment, then, is the decision or sentence of the law given by a Court of Justice as the result of proceedings instituted therein for the redress of an injury or, as has been quaintly expressed, judgment is the determination and result of law. This is clear from Para. 23 of the Dispatch from Sir Charles Wood which accompanied the first Letters Patent. The appeal must, therefore, be deemed to have been preferred against the decree and all the points necessary to be investigated for the determination of the correctness of that decree are open for consideration although the Court as a Court of Appeal would be slow to take, upon a decision of fact, a view contrary to the concurrent opinion of the trial Judge and of the two Judges of the Division Bench.

That being so, all the points necessary to be investigated for the determination of the correctness of the decree passed in Regular Second Appeal No. 1061 of 1946 by Achhru Ram, J. on 11th April 1947 are open for consideration in this appeal.

10. But as stated above the judgment of the Court in second appeal proceeds upon the deed of adoption, Ex. D. 1, and the treatment of the appellant by the deceased, both previous and subsequent to Ex. D. 1. The rule in such cases was laid down by Shah Din, J. in Gurbachna v. Bujha 42 P.R. 1911 where it was held that all that is necessary to constitute an adoption is the clear expression of intention or the adoptive father's part to adopt the boy concerned as his son and a sufficient manifestation of that intention is the execution of the deed of adoption coupled with a clear declaration before a Court and continuous subsequent treatment as adopted son. The deed of adoption, Ex. D. 1, is a sufficient manifestation of intention on the part of Mahain Singh to adopt Taru Singh as his son and received support from the declaration of Mahain Singh made before the registering officer. The evidence of Mula Singh and Mt. Tej Kaur relating to the treatment of the appellant Taru by Mahain Singh deceased is clear and there would be no justification to interfere with the finding on issue No. 1 reached by Achhru Ram J.

10. For the reasons given above, the appeal fails and is dismissed with costs.

Bhandari, J.

I agree.


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