Ram Dhari and others vs Darbo and others

N.K. Kapoor, J.—This order shall dispose of regular second appeal Nos. 1997 and 1998 of 1981.

This is defendantsvendees'' second appeal against judgment and decree of the Additional District Judge whereby judgment and decree of the trial court was set aside and suit of the plaintiff decreed as prayed for.

Briefly put, one Balwant singh (died during the pendency of the suit) was owner of land measuring 68 kanals 11 marlas, which was his ancestral property. Ram Kumardefendant No. 1 filed a suit through his uncle Singh Ram against Balwant Singh on 20.3.1971 and obtained a decree for possession of land in dispute on 5.4.1971. Plaintiff who is sister of Balwant Singh challenged the judgment and decree dated 5.4.1971 terming it to be null and void on various grounds as given in the plaint. Balwant Singh filed written statement and demied the various material averments made in the plaint. He even denied that the plaintiff was his sister.

Suit was contested by defendants 1 and 2. They too denied that the plaintiff was sister of Balwant Singh. They further pleaded that the judgment and decree was perfectly valid and that Ram kumar was adopted son of Balwant Singh and so was his legal heir.

On the pleadings of the parties, following issues were framed:

1) Whether the impugned judgment and decree dated 5.4.1971 have been obtained through collusion as alleged and is null and void and ineffective and not binding on the plaintiff ? If so, to what effect ? OPP.

2) Whether defendant No. 1 is the validly adopted son of Balwant Singh deceased ? If so, to what effect ? OPP.

3) Whether the plaintiff was the sister of the deceased Balwant Singh ? OPP.

4) Relief.

Trial Court decided issue No. 1 against the plaintiff. Issue No. 2 was decided against the defendants. Issued No. 3 was decided in favour of the plaintiff. Consequently, suit of the plaintiff was dismissed.

An appeal was preferred by the plaintiff and during its pendency the subsequent vendees too were impleaded as party. The Court once again examined the matter in entirety. Court on reappraisal of the evidence came to the conclusion that Ram Kumar was not validly adopted by Balwant Singh and this way affirmed the finding of the trial Court in respect of issue No. 2. In respect of issue No. 1 the Court came to the conclusion that the decree suffered by Balwant Singh was null and void and as the plaintiff was held to be a sister of Balwant Singh she had a right to challenge the decree. Resultantly, the appeal was accepted and the judgment and decree of the trial Court was set aside. By way of consequential relief the suit of the plaintiff for possession of land in dispute was decreed.

With a view to seek the reversal of the judgment and decree of the Additional District Judge, counsel termed it to be wholly unwarranted as per legal evidence on record. According to the counsel, Ram Kumar claiming himself to be an adopted son of Balwant Singh filed a suit against the adoptive father claiming himself to have become owner of the property on the basis of a family settlement. Balwant Singh came present, filed written statement, ultimately leading to the passing of the decree in favour of Ram Kumar. Since Balwant Singh happened to admit Ram Kumar to be his adopted son affirmation of the family settlement by the civil Court could not be assailed by Smt. Darbo at all. Balwant Singh while filing written statement in the present suit too has accepted the factum of adoption as well as the family settlement. Court below has simply ignored the admission written statement filed by Balwant Singh and duly proved on record by examining the counsel who represented Balwant Singh (since Balwant Singh had expired). Otherwise too, the basis of the decree dated 5.4.1971 could not be assailed by Smt. Darbo. At best such a decree could be challenged on the grounds of fraud, misrepresentation or coercion as in the case of a valid contract. Otherwise too, the appellants are bona fide purchasers for a valuable consideration. Before purchasing the property the appellants made all bona fide enquiries and so are protected. Lastly, the counsel argued that even if the judgment and decree impugned is affirmed, Balwant Singh having died on 13.2.1973, Smt Darbo and Smt Paran, his sisters, succeed to the estate of Balwant Singh as he died issueless. Smt Paran too died during the pendency of the case and this way Ram Kumar, her son succeeds. Resultantly, appellants'' rights are protected to the extent of one half of the area purchased by them from Ram Kumar and to this extent the judgment and decree deserves to be modified.

Learned counsel for the respondent on the other hand argued that both the Courts on reappraisal of evidence have come to the conclusion that no valid adoption, as alleged by Ram Kumar, ever took place and so the narration in the plaint that there was adoption and hence the family settlement was put merely to usurp the valuable rights of Balwant Singh, who was a simpleton. It has come in evidence that he was almost a man of unsound mind. Some of the witnesses have described him to `Bawla'' and `Pagla'', meaning that he was not possessed of sufficient common sense as normally understood. Ram Kumar by misrepresenting Balwant Singh happened to procure a decree in his favour, which was rightly challenged by Smt. Darbo and succeeded too. A perusal of the written statement though proved by the counsel, if examined, gives an impression that his thumb impression had already been procured before the written statement was drafted. So, even when the counsel has deposed with regard to his authority as counsel as well as drafting of the written statement as per instruction of Balwant Singh the same can be taken as a pinch of salt. In fact, it had come on record that there is no proof on record with regard to the ceremonies relating to adoption of Ram Kumar. Even his mother has not been examined to prove the adoption. There is no writing either and in case there is no adoption the story of a family settlement between Ram Kumar and Balwant Singh has been rightly held to be nonexistent, thus conferring no right upon the decreeholder. This way the Courts below have rightly declared the decree to be null and void qua the rights of plaintiff who alone succeeds in the absence of any other preferential heir to Balwant Singh. Finding recorded by Courts below that no adoption took place much less a valid adoption essentially being a finding of fact and otherwise not vitiated cannot be interfered with in a regular second appeal. Since the basis of the claim in the impugned decree is the alleged adoption and hence family settlement, there cannot be a family settlement unless persons or a family. So, in the context of the present case no such family settlement could take place and resultantly the decree set up by Ram Kumar is proved to be based on fraud and misrepresentation and so has been rightly set aside by the Courts below. Appellants being purchasers during the pendency of the suit cannot set up a plea of bona fide purchaser and any such sale is hit by principle of lis pendens and hence binds the appellants. Moreover, Courts have conclusively held against Ram Kumar with regard to family settlement as well as the adoption, the appellantsvendees in fact have no right to challenge these findings in the second appeal. Appeal merits dismissal and the same may be dismissed with costs.

I have heard the learned counsel for the parties, perused the judgments of the Courts below as well as various documents referred to by the respective counsel in support of their respective contentions. Facts have been briefly noticed i.e. Balwant Singh died on 13.2.1973 issuless. Smt Darbo and Paran alone succeed as there is no other preferential heir of Balwant Singh. Ram Kumar son of Smt. Paran filed a suit against Balwant Singh on the basis of a family settlement, which was decreed by the Court in view of the admission statement filed by Balwant Singh. Basis of the family settlement is the alleged adoption of Ram Kumar. Since the civil Court decree was challenged by Smt. Darbo, sister of Balwant Singh, on the ground of fraud, misrepresentation, as according to the plaintiff Balwant Singh was a simpleton, the Court framed appropriate issues and permitted the parties to lead evidence. Issues pertain to the adoption and decree having been procured on the basis of fraud, misrepresentation etc. relationship of the plaintiff with Balwant Singh; Ram Kumar, who is son of Smt. Paran, however, denied even the status of Smt. Darbo being sister of Balwant Singh. This precise objection raised by Ram Kumar clearly brings out the falsity of the stand taken by Ram Kumar; perhaps with view to hold on the property which he got on the basis of impugned Civil Court decree dated 5.4.1971. Later on Ram Kumar, however, made a statement before the Court on 24.2.1979 that Smt. Darbo is the real sister of Balwant Singh and so this issue was decided in favour of the plaintiff.

As regards adoption, both the Courts on the basis of evidence have come to the conclusion that no adoption took place. Counsel for the appellants instead of adverting to these concurrent findings of the Courts below, however, argued that basis of the earlier decree cannot be interfered into in the present suit. So, as the decree is passed on the basis of a family settlement and has again been accepted by Balwant Singh in view of the written statement, exhibit DW7/A, the Courts below erred in setting aside a valid decree passed by the Court. I find these submissions devoid of any substance. Admittedly, Ram Kumar laid claim to the property claiming himself to be an adopted son of Balwant Singh and hence family settlement. Since Ram Kumar has failed to prove the factum of adoption (even his mother Smt. Paran did not appear to depose in his favour), no such family settlement could be between strangers. Basis of family settlement is the existence of possibility of a right in a person to share the property. The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. So, the precise basis of claim set up by Ram Kumar falls to the ground, when examined in the light of other evidence on record that Balwant Singh was a simpleton, whom the witnesses have described to be a `Bawla'' and `Pagla'', lends support to the assertion of the contesting respondent that Balwant Singh was not made fully aware of the consequences of such an admission written statement. It is in the context of this material evidence on record, lower appellate Court chose to reverse the judgment of the Trial Court. No doubt consent decree is as good as the decree suffered after a keen contest and can be only avoided on the ground of fraud, misrepresentation, coercion and in case of a person of unsound mind; in case next friend was negligent in conducting the case/proceedings. Apex Court in Bishan Dass Narain''s case (A.I.R. 1951 Supreme Court 280) held that such a decree can be avoided in one or other ways in which a decree may be attacked. Adoption of Ram Kumar having not been proved, the base of family settlement becomes nonexistent and so such decree can be held to have been procured by practising fraud/misrepresentation. In fact, the whole matter would have come to light but for the unfortunate death of Balwant Singh during the trial of the suit. Similarly, the admission written statement again filed in this case, if examined in the light of what has been noticed above, too does not in any manner advance the case of the appellants. Conclusion of the Courts below in this regard is perfectly legal and just.

Since Balwant Singh has expired, Smt. Darbo and Smt. Paran being his sisters succeed to the suit property in equal shares. Smt. Paran too has expired during the pendency of the case. It has thus been argued by the appellants that since Ram Kumar alone succeeds Smt. Paran, the sale made by him in favour of the appellants deserves to be protected to the extent of one half share of Smt. Paran. Whether Ram Kumar alone succeeds to the estate of Smt. Paran or some others share alongwith him or excluding him cannot be determined in the absence of material on record. So, I find no merit in the plea of the appellants'' argument. The appellants'' rights are, however, protected to the extent of the share of Ram Kumar, if any, and no further.

Thus, finding no merit in these appeals, the same are dismissed.

Petties to bear their own costs.