Khazani And Anr. vs Hem Chander Khari
2001 Latest Caselaw 205 Del

JUDGMENT

Devinder Gupta, J.

1. We have heard learned Counsel for the appellant at the preliminary hearing of this appeal, who has taken us through the entire record of the Trial Court.

2. This first appeals has been preferred by the plaintiff against the judgment and decree passed on 15.10.1998 by Shri Lal Singh, Additional District Judge, Delhi in Suit No. 264/90 decreeing her suit for declaration to the effect that plaintiff Shanti Devi has inherited 1/2 share in the residential property ad-measuring about 500 sq. yards from out of land comprised in Khasra No. 361/2, situate in village Sultanpur, Tehsil Mehrauli, New Delhi. The plaintiff/ appellant has felt aggrieved against that part of the judgment and decree by which her sit for the reliefs prayed has been dismissed.

3. One Ramji Lal son of Nathan, was co-bhumidar in agricultural land situate in village Sultanpur, Tehsil Mehrauli, New Delhi and an absolute owner in possession of single storey residential house comprised in an area of about 500 sq. yards from out of land comprised in Khasra No. 360/1-2 situate at Sultan Pur, New Delhi Ramji Lal expired on 28.1.1983. Mutation of inheritance was sanctioned on 30.3.1983 in favor of Hem Chander, respondent, as his son. Feeling aggrieved by the order of attestation of mutation Smt. Khazani and Shanti Devi, widow and daughter respectively of Ramji Lal filed suit on 15.1.1996 claiming a decree for declaration in their favor against the defendant to the effect that Khazani Devi, widow of the deceased had inherited bhumidari rights of Ramji Lal and the defendant had acquired no right, title or interest on the basis of attestation of mutation. Foundation for the suit was that the defendant Hem Chander was not born to plaintiff Khazani from the lions of Ramji Lal. Sanction of mutation was bad, illegal and void and of no consequence since notice of the proceedings was not served.

4. The suit was contested by the defendant Hem Chander, who alleged that the mutation had rightly been sanctioned in this favor. The plaintiff had not come to the Court with clean hands. he admitted that no son was born to Shri Ramji Lal out of wedlock with plaintiff Khazani Devi but alleged that Ramji Lal had adopted him in the year 1955 in the presence of the "Bradari". material facts and particulars along with the circumstances leading to the adoption were specifically pleaded by him alleging that Ramji Lal and Ram Sarup were real brothers, who had six other brothers. Ramji Lal died on 28.1.1983 at the age of about 80 years. Khazani was the widow of Ramji Lal. Tula Kaur was the wife of Ram Sarup. They were cousin sisters. Tula Kaur died in or about 1939. The defendant pleading that he was the natural son born on 15.11.1938 to Tula Kaur from the lions of Ram Sarup. Tula Kaur died leaving behind the defendant aged about 6 months. After about one year of the death of Tula Kaur, Ram Sarup re-married Smt. Bhati, who gave birth to three sons and three daughters. At the time of death of Tula Kaur, Ramji Lal was in advanced age and had no son. Ram Sarup, father of the defendant re-married. In these circumstances, the defendant was treated by Ramji Lal as his son. The defendant was maintained and brought up and was got educated by Ramji Lal. His marriage was also got performed by Ramji Lal and Smt. Khazani. Later on the defendant for formally adopted by Ramji Lal in family gathering. All the necessary formalities of give and take took place. Group photographs were also taken.

5. In the light of the pleadings of the parties, following issues were framed:

(1) Whether the plaintiffs have no locus standi and cause of action to file the present suit ? O.P.D.

(2) Whether the plaintiffs are estopped from filing the present suit ? O.P.D.

(3) Whether the suit is barred by time ? O.P.D.

(4) Whether the defendant is the adopted son of Shri Ramji Lal, deceased. If so its effect ? O.P.D.

(5) Whether the plaintiff No. is entitled to inherit the bhumidari holdings and the plaintiffs are entitled to inherit the residential property of the deceased ? O.P.P.

(6) Relief.

6. Learned Trial Court on due appreciation of oral land documentary evidence has returned a finding that the defendants is the adopted son of Ramji Lal, deceased.

7. As a consequence of such findings mutation was held to have been duly sanctioned in accordance with law. The suit was partly decreed, in favor of Shanti Devi, Khazani Devi having died during pendency of the suit.

8. Learned Counsel for the plaintiff/ appellant took us through the entire evidence on record. Having gone through the record and having considered the submissions made at the Bar, we are of the view that learned Trial Court was perfectly justified in coming to the right conclusion and on the basis of the material, which has been brought on the record, on other view is possible except the one, which has been arrived at by the Trial Court.

9. Neither Smt. Khazani nor Smt. Shanti Devi had courage enough to step into the witness box to contradict the statement of the defendant. Though Khazani Devi had expired before evidence could be led, but nothing prevented Smt. Shanti Devi in appear in the witness box and the controvert the evidence adduced by the defendant that in a proper ceremony, which took place in the year 1955 he was formally adopted by Ramji Lal. he was brought up, maintained and was treated by Ramji Lal as his son, ever since the defendant was of the age of 1 year. The defendant was got admitted in the school by Ramji Lal. His parentage in the school is recorded as son of Ramji Lal. In all official documents including number of communications duly proved on record, he has been described as the son of Ramji Lal. Sale deed Ex. DW 9/1 was executed by Ramji Lal in favor of the defendant in which also Ramji Lal had described the defendant as his son. This is a clear admission of Ramji Lal. Khazani and Shanti Devi being the other heirs are bound by such admission on the part of Ramji Lal.

10. On behalf of the plaintiffs, the husband of plaintiff No. 2 appeared in the witness box, who was confronted with document Ex. PW 1/D1, power of attorney executed by defendant Hem Chander. Shri S.S. Bhati, husband of plaintiff No. 2 admitted that in this document he is the attesting witness wherein also the defendant has been described as son of late Ramji Lal.

11. The evidence adduced in this case by the defendant satisfied the test of Section 50 of the Evidence Act. The evidence as remained unrebutted on which no other view is possible except the one arrived at by the Trial Court.

12. We find no force in the appeal, which is hereby dismissed at the preliminary stage.

13. Appeal dismissed.