Kamla and Others vs Narain and Others

Nisha Gupta, J.—This first appeal under Section 96 CPC has been filed against the judgment and decree dated 22.4.2009 passed by Additional District Judge (Fast Track) No. 3, Camp Ajmer Kishangarh Distt. Ajmer in Civil Suit No. 10/2006 old 6/2005 whereby the decree has been passed for taking possession of land in question and registered sale deed has been cancelled.

The brief facts of the case giving rise to this appeal are that plaintiff respondent filed a suit for cancellation of registered sale deed dated 16.2.2002 and for getting the possession of land in question. The alleged sale deed has been executed by the appellants No. 1 in favour of appellants No. 2. The contention in the plaint are that late Shri Kalyan and Shri Balu were real brothers, they were having total 28 bighas and 18 biswa agricultural land. Both were having half shares in the above land. Late Shri Kalyan was not having any son. He has only one daughter named Kamla, appellant No. 1, hence Shri Kalyan has taken the respondent in adoption as a son on 9.6.1960, when plaintiff -respondent was about 13 years of age and at that time appellant was less than three years of age, thereafter the land in Khasra No. 72, 73, 74, 196, 548 and 549 were in joint possession and ownership of Shri Balu and Kalyan, the respondent was carrying on agricultural work on the said land along with his father. Kalyan died on 20.8.1988 and all the rituals have been performed by respondent. Appellant No. 1 had executed an agreement in favour of respondent on 9.9.1988 and she has relinquished all her rights in the property and gave no objection certificate in favour of respondent and respondent is enjoying the land as owner of the land. On 10.4.91 in village Akodia a meeting was held of the respected persons and it has been agreed that the land may be transferred in the name of respondent. Late Shri Kalyan has also executed one Will dated 7.5.1975 during his life time in favour of respondent. Respondent also constructed a well on the land and he has also performed all customary ceremonies in connection with his sister Kamla and he was treated as son of deceased Kalyan. Thereafter, appellant No. 1 Smt. Kamla illegally mutated her name in the land in question and also sold the land illegally to appellant No. 2 on 16.2.2002, hence suit has been filed. The respondent has denied all the averments and denied execution of any deed relinquishing her right dated 9.9.1988. The contention in the written statement is that respondent is not the adoptive son of Kalyan. No Will has been executed in his favour, documents are forged one, she is only heir of Kalyan, hence having absolute right over the property and has rightly sold the land to Bholu appellant No. 2, meeting of villagers has also been denied. On the pleadings of the parties, the court below has framed 7 issues as under:

The learned trial Court recorded the statements of PW/1 Narayan, PW/2 Gopi, PW/3 Ranglal, PW/4 Chagana and PW/5 Navi Khan and Exhibits P/1 to P/14 has been relied upon by plaintiff respondent whereas defence has examined D.W./1 Kamla, D.W./2 Bholu, D.W./3 Ram Karan, D.W./4 Ram Lal and D.W./5 Suraj Karan and Ex. A/1 to A/4 has been relied upon by them. After hearing the parties, the suit has been decreed as aforesaid, hence this appeal.

The contention of the present appellants is that the findings of the court below are not proper. Documentary as well as oral evidence has not been looked into. The appellant No. 1 is the sole legal heir of Kalyan, documents are forged one, the court below has wrongly made presumption as regards Section 90 of the Evidence Act as on the date of the suit, the Will Ex. 2 was not of 30 years old, to prove Ex. 3 none of the witnesses have been examined. Appellant No. 2 is the bona fide purchaser, hence the appeal be allowed.

Per contra, the contention of the respondent is that it has been amply proved before the court below that he is the adoptive son of Kalyan, he has been treated in the society like that. Ex. 2 Will also supports his contention about the fact of adoption. Will is 30 years old, hence the presumption under Section 90 of the Evidence Act has been rightly taken by the court below. There is no reason to disbelieve Ex. 3 and witnesses from the same village has also confirmed his right. Documents Ex. 6 and 7 are there which show that he took loan to dig the well and he has also get redeemed the property mortgaged which is verified by the document Ex. 8 which clearly proves the fact that respondent is the legal heir of deceased Kalyan and Kamla has relinquished all her right in his favour, hence sale deed is without jurisdiction and the court below has rightly held so.

Heard the learned counsel for the parties and perused the impugned judgment and decree as well as original record of the case.

PW/1 Narayan has stated that he is adoptive son of Kalyan and adoption has taken place in the year 1960 when he was 13 years old. He has also stated that he has performed all customary and social ceremonies as his son and Will Ex. 2 has also been executed in his favour, he is in possession of the property after the death of Kalyan and dealing with the property as owner, appellant No. 1 has executed agreement Ex. 3 in his favour and villagers of Gram Adkodiya has also admitted his status and possession and document Ex. 4 and 5 has been recorded in his favour. He also took loan to construct a well and Ex. 6 and 7 receipts of the concerned bank has been placed on record, by Ex. 8 he has repaid the money to the mortgagor and get the land redeemed when Kamla has get his name mutated in the land, he served Ex. 10 notice on her. In cross-examination also he has asserted that he has been taken in adoption by Kalyan and Ex. 3 agreement has been executed by appellant No. 1. Other witnesses PW/2 Gopi has also asserted the same facts and his contention is that plaintiff has got the land redeemed from Ram Karan and Ex. 8 contains his thumb impression. PW/3 Ranglal has also proved the document Ex. 8 and it contains his thumb impression. PW/4 Chagana and PW/5 Navi Khan has stated that in the meeting of villagers, it has been admitted that Narain is the adoptive son of Kalyan and minutes of the meeting has been prepared Ex. 4 and it contains his signatures.

Thus, all the witnesses of the plaintiff had amply proved the fact that respondent is the adoptive son of Kalyan and he has managed the property as his son. He took loan to construct a well and also get redeemed, the property from Ram Karan. Ram Karan has been examined as D.W./3. He has also proved the document Ex. 8 and testified the fact that Rs. 12,500/- has been repaid by Narain. The court below has rightly considered the evidence of plaintiff and gave a positive finding that respondent is the adoptive son of Kalyan and Kamla has relinquished her right in his favour vide Ex. 3.

D.W./1 Kamla has stated that Narain is not the adoptive son of his father and after the death of his father, she is cultivating the land with the aid of villagers but none of the villagers has been produced to prove the fact that they have cultivated the land on behalf of Kamla. In cross-examination, she has not denied specifically the fact of adoption, the fact of Will or the fact that respondent is performing all customary and social obligations as adopted son. There is no denial to the fact that Narain, respondent was cultivating the land in the life time of his father or he has made constructions over the land, as regards redemption from mortgage, he has pleaded her ignorance.

In the light of the above evidence, the court below has rightly considered the rival contentions and held that Narain is the adoptive son of deceased Kalyan and by virtue of Ex. 3, he has become absolute owner of property of Kalyan when Kamla has relinquished her right over the land, he was not having any right to sell it.

The contention of the appellants is that Will has not been proved as per provisions of Section 68 of the Evidence Act. It is true that as per Section 68 of the Evidence Act, the Will has to be proved by producing at least one attesting witness, but it is not in dispute that none of the witnesses to the Will are alive and Will has been executed on 7.5.1975 meaning thereby that it is 30 years old document and court below has rightly relied upon provisions of Section 90 of the Evidence Act. Will has been produced from proper custody and court below has rightly taken presumption about the genuineness and execution of the Will. The contention of the present appellants is that on the day of presentation of the suit i.e. 5.3.2005, document was not 30 years old and hence presumption under Section 90 of the Evidence Act could not be taken but the contention is not well founded. The very basis of Section 90 of the Evidence Act is that if the document is old, the witness to prove it could not be made available, hence the law has provided presumption as to execution and genuineness of the document and Section 90 of the Evidence Act reads as follows:

"90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person'' s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."

The bare reading of the above goes to show that when a document has been proved to be of 30 yeas old, then presumption could be taken and proved pre-supposes tender in evidence and taken on record. Here in the present case, the document is of 30 years old it has been produced from proper custody, the presumption has been rightly taken by the court below. In this regard reliance may be placed on Surendra Krishna Roy and Another vs. Mirza Mahammad Syed Ali,AIR 1936 15 (Privy Council) which is a complete answer to the question raised by the parties wherein it has been held as under:

"The period of 30 years, under S. 90 of the Act is to be reckoned not from the date upon which the deed is filed in the Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes subject of proof."

The contention of the appellants is that for Will, it is mandatory to prove it by producing at least one attesting witness and reliance has been placed on S.R. Srinivasa and Others Vs. S. Padmavathamma, . There is no dispute about this legal proposition but Section 90 gives an exception to this rule.

The other contention of the appellants is that mutation has not been challenged by the respondent. It is true but when the property has been sold, he has filed a civil suit, hence it was not necessary for him to challenge the mutation and otherwise also mutations are only fiscal entries which creates no right. The other contention of the respondent is that Chel Bihari who is scriber of the agreement Ex. 3 has not been produced, hence Ex. 3 is not proved. Ex. 3 has been proved by the evidence of PW/1 Narain, hence it was not necessary to examine other witnesses and defendant has not produced any evidence which shows that Ex. 3 is forged document. The contention of the appellants is that in Ex. 3, there is no reference to Ex. 2, hence Ex. 2 cannot be treated as a genuine document.

Apart from document evidence Ex. 2 and 3 witnesses has also corroborated the fact that Narain is the adoptive son of deceased. It is true that in Ex. 3, there is no reference to Ex. 2 but it itself does not create any suspension on Ex. 2 when there is a legal presumption in favour of Ex. 2.

The witnesses has also corroborated the fact that Narain is the adoptive son of deceased. He has been treated in society as adoptive son and appellants were handling his property as such, the court below has considered the oral as well as documentary evidence in right perspective. There is no error or perversity in the impugned findings and appeal is liable to be dismissed.

Consequently, the appeal is dismissed.