1. This second appeal is by the defendants and is directed against the concurrent decisions of the Courts below decreeing the plaintiffs' suit for possession of 328/633 share of the entire estates of Budhan, Maluka and Ram Nath. In order to appreciate the entire controversy, it is necessary to set out the facts in some detail. The relationship of the parties is disclosed by the following genealogical table:—
2. Ram Nath, Budhan and Maluka held the suit-land in equal shares. Budhan was the first to die, having died in the year 1898. His estate was mutated in the name of his widow Mst Hai Kaur. Maluka died in 1900 and his estate was mutated in favour of Mst. Dhapan, his widow. Dhapan, however, entered into a karewa marriage with Ram Nath with the result that the estate of Maluka was mutated half and half in the names of Ram Nath and Budhan's widow Mst. Har Kaur. Mst. Har Kaur sometime during the years 1905-6 appointed Bhim Singh as an heir to her husband Budhan. Har Kaur died in December 1936. This led to disputes between Bhim Singh and his brothers and ostensibly also his father regarding the estate of Budhan or Har Kaur. In order to settle these disputes an agreement of reference was drawn up on the 3rd of February, 1937, Exhibit P- 67, and two disputes concerning the estate of Budhan were referred to the arbitration of Pt. Shambhu Dutt, Ram Nath and Hira. This Ram Nath is a stranger to the family. The agreement of reference was between Ram Nath and others as party No. 1 and Bhim Singh as party No. 2. The relevant part of the agreement translated reads thus:—
“Because first party does not admit the second party as an adopted son of Mst. Har Kaur and Shankar, who is one of the first party declares himself to be adopted son of one Har Swarup and there is a dispute about that too, also there is a dispute about the movable and immovable property of Ram Nath and there is a danger of the breach of peace, therefore, we the parties to this agreement in our full senses appoint Pt. Shambhu Dutt, Ram Nath and Hira as arbitrators who will decide the aforesaid disputes after inquiry and their decision will be acceptable to the parties.”
3. Therefore, it will be apparent from the agreement that regarding the estate of Budhan the only dispute referred to the arbitrators was whether Mst. Har Kaur had adopted Bhim Singh or not. The arbitrator, however, on that very day gave their award. By the award, Bhim Singh was to be the owner of 193 bighas kham of the land held by Ram Nath and inherited by Bhim Singh from Budhan, including certain other properties. Specific Khasra numbers of the aforesaid land allotted to Bhim Singh were mentioned in the award. Rest of the land was to remain the property of Ram Nath. It was also held by the arbitrators that Har Kaur did adopt Bhim Singh but the arbitrators went further and by their award proceeded to cancel that adoption. It was also provided in the award that Lambardari which was held by Ram Nath would on his death go to Bhim Singh. An application was made by Bhim Singh on 25th of February, 1937, to make this award a rule of the Court and in fact this award was made a rule of the Court and a decree for possession of the land measuring 193 bighas kham was passed in favour of Bhim Singh in accordance with the award.
4. However, this decree was never executed and virtually has remained a dead letter. The parties continued in actual possession of the land in the same manner in which they were before the award. No change whatever in the possession of the parties was brought about by this award. The revenue entries showing the parties, i.e, Bhim Singh as owner of one-half of the entire estate and Ram Nath as Owner of the other half have continued right uotodate. In the year 1938 Bhim Singh was murdered and on his death the mutation of the land recorded in his name in the revenue records was entered in favour of his sons, the present appellants, at the instance of Ram Nath by an application to the revenue authorities, Exhibit D.5 It is significant that the award was totally ignored by Ram Nath. On the other hand in this application it was clearly stated that Bhim Singh was the adopted son of Budhan. From 1938 onwards the defendant-appellants have been shown as owner of the entire one half in place of their father Bhim Singh of the family lands, in 1942 Ram Nath died. No part of his estate was mutated in favour of Bhim Singh. His entire estate was mutated in favour of his other five sons, plaintiffs Nos. 1 to 5, to the exclusion of Bhim Singh and Ujala, who is the son of Ram Nath from Dhapan, the widow of Maluka, whom, as already stated he had married in karewa form, Ujala died in 1942 and was succeeded by his widow. His widow, however, married Dalip Singh, his step-brother, and his estate was mutated in favour of plaintiffs Nos. 1 to 5 to the exclusion of Bhim Singh's sons. In the year 1954-1955, proceedings under the East Punjab holdings Consolidation and Prevention of Frag-mention Act, 1948, started and in those proceed? ings Bhim Singh's sons, i.e, the defendants, were put in possession of half of the estate and the plaintiffs in possession of the other half. In other words the entire land held by Ram Nath, Budhan and Maluka was divided Into two equal halves, one half going to Bhim Singh's sons and the other to the plaintiffs Nos. 1 to 5. This led to a suit by the plaintiffs who claimed that they were entitled to possession of 328/633 share of the entire land as already indicated above. This suit was withdrawn and a fresh suit was filed but the relief claimed was the same. The principal defence set up by the defendants was that the award decree remained a dead letter, that the parties continued in possession in the same manner as before the award and the decree following thereon and that the award decree is a nullity and has no existence in the eye of law sp far as Bhim Singh's adoption is concerned and that the defendants are entitled to half the estate as granted to them in consolidation proceedings. The plaintiffs, however, on the other hand rely mainly on the award decree and also raise challenge to the validity of the adoption of Bhim Singh by Har Kaur. The bar of limitation to the suit is also pleaded in the case. Very large number of issues were filmed in this case and it is not necessary to reproduce the same. The trial Court decreed the suit an on appeal by the defendants the same has been ???. The relevant findings which the Courts below have given may be briefly enumerated:—
(1) Bhim Singh was in fact adopted by Har Kaur but the adoption is not valid because of the want of authority by the husband to her to adopt a son,
(2) that in any case the adoption had been set aside by the award decree,
(3) that the adoption could be set aside by the award decree,
(4) that the award decree is binding on the parties and cannot be challenged,
(5) that the plaintiffs cannot sue for the land over and above the award decree,
(6) that the non-execution of the award decree has no effect on the present controversy,
(7) that the parties have remained in possession of the land in the same manner after the award as they were before the award,
(8) that the land in suit is not ancestral qua the parties.
(9) that the plaintiffs are entitled to 328/633 share of the land in accordance with the award,
(10) that the suit is not barred by limitation, and
(11) that the plaintiffs are not estopped by their conduct from suing.
5. The only contentions raised before me by the learned counsel for the appellants are:—
(1) that the award decree definitely declares that Bhim Singh was adopted by Har Kaur and the setting aside of that adoption by the arbitrators is wholly without jurisdiction. Therefore, to the extent of the setting aside of the adoption that decree has no meaning and no existence and must be heated as a nullity.
(2) that in any case no effect was given to the award decree and the parties continued to enjoy the same status qua the land as they did before the award, namely that their joint status to the land in equal shares continued, and that being so by the lapse of 12 years the plaintiffs cannot now dispute the basis of that joint status and set up a new status in place thereof:
(3) that in any case Bhim Singh was validly adopted by Har Kaur and the requirement as to the husband's authority is directory and not mandatory and the lack of it will not make the adoption invalid.
(5) These contentions are, however, controverted by the learned counsel for the respondents. His contention is that the award decree was passed at the instance of Bhim Singh. He not only accepted the award but made an application for making the award a rule of the Court. Therefore, he is bound by his own act and cannot now raise the question that the decree is nullity to the extent that it set aside his adoption. Once that decree is held to hold the field the plaintiffs' suit must succeed. He farther supports his argument by urging that the agreement and the award were made the same day and, therefore, it appears that it was a sort of an arrangement and Bhim Singh being a consenting party to this arrangement he cannon ow back out of this arrangement. The other contention raised is that after the arbitration award decree, part of the land as decreed remained in possession of Bhim Singh and therefore he must be taken to have acted upon the award and as such is bound by the same. It is also urged that the joint status was disrupted by this award decree and this is apparent from the fact that near about 600 kanals of land, more than the share of the plaintiffs, remained with them in their actual possession whereas 120 kanals odd remained with Bhim Singh or his descendants. Therefore, there would be no question of the joint status being perfected by the lapse of time.
6. This now brings me to the consideration of these respective contentions. It cannot be disputed that the arbitration agreement gave no power to the arbitrators to set aside the adoption in case they came to the conclusion that in fact there was an adoption. All that they were required to do was to find out whether in fact Har Kaur had adopted Bhim Singh. This they did find but then they proceeded further and did what their charter did not permit, namely; that they set aside the adoption. Therefore, it cannot be disputed that what they did was wholly without jurisdiction. It is a fundamental rule of law that whatever is without jurisdiction cannot acquire any sanctity merely because the parties do not raise the objection of jurisdiction or later on consent to the same, for no amount of consent can confer jurisdiction. In order to confer jurisdiction on the arbitrators both parties had to agree that the arbitrators would have jurisdiction to set aside the adoption even if in feet or in law it had taken place. There cannot be an agreement to reference by one party, therefore, any amount of consent by Bhim Singh alone would be of no consequence. No consent or no action on the part of the other party to the agreement is proved, on the record. It may very well have been that even after the award be the parties may have agreed to treat the question of the setting aside of the adoption as part of the reference. In that contingency, it may have been possible for the learned counsel for the respondents to urge that the want of jurisdiction was cured but that is not the case here. At no stage in the proceedings before or after the arbitration award both the parties agreed to refer this part of the dispute to the arbitrators, and therefore, it must be held that the award of the arbitrators so far as the setting aside of the adoption is concerned is wholly without jurisdiction.
7. The next argument that was urged by the learned counsel for the respondent was that if the award is without jurisdiction it having merged in the decree, the decree cannot be challenged by a separate suit. The argument would be absolutely correct under the Arbitration Act, 1940, but it has no meaning so far as the arbitrations before 1940 Act are concerned. In 1940 Act there is specific provisions barring suits to challenge the awards but there is no such provision in the Second Schedule of the Code of Civil Procedure or in the 1899 Arbitration Act as a matter of fact, there are any number of decisions reported wherein such suits were entertained and arbitration agreements or decrees based thereon Were set aside as nullifies. Inter alia, see E.D Sassoon and Co. v. Ramdutt Ramkisen Das, AIR 1922 PC 374, J. Echholz, German Merchant v. Amar Nath Sri Ram, AIR 1935 Lah 76 and Chhabba Lal v. Kallu Lal, AIR 1946 PC 72. Therefore, the contention that no suit can be filed to set aside the award or the decree following thereon is devoid of force.
8. This leads me to the consideration of the next contention that was raised by the learned, counsel for the respondents, namely, that a suit to set aside the decree is also barred by time, but this argument loses sight of the fact that there is no suit to set aside the same. It is only in defence that this plea has been raised and it is well settled rule of law that the law of limitation does not bar a defence. It only bars actions. Therefore, this argument also must be repelled.
9. The net result, therefore, is that it must be held that the decree that followed of the basis of the arbitration award setting aside the adoption is a nullity and as the decree so far as this matter is concerned is severable the other part of the award will stand but the decree setting aside the adoption must be treated as non est. Once this is dong the case will present no difficulty for the simple reason that the former decree which was passed on the basis of the award must stand so far as the findings of the arbitrators are concerned that Mst. Har Kaur had adopted Bhim Singh and that decision would be res judicata between the parties so far as the present controversy is concerned.
10. Even otherwise on the evidence on the record the Courts below had come to a concur rent finding of fact, namely, that Mst. Har Kuai had in fact adopted Bhim Singh but they set aside the adoption on the ground that no authority of Budhan in favour of Har Kaur to adopt a son to him was proved. This matter will present no difficulty for two reasons:—
(1) The factum of adoption being proved its validity must be assumed particularly when no challenge was thrown to it during the life-time of the adopter. In Exhibit D. 1, a sale deed dated 11th of December, 1936, executed by Lalji in favour of Bhim Singh, Bhim Singh is described as an adopted son of Budhan. This sale-deed is attested by Rajn Nath, the natural father of Bhim Singh. Moreover in the year 1905-1906 the adoption took place. It was not disputed till the year 1936 after Mst. Har Kaur had died and even then in a properly constituted dispute which was referred to arbitration this matter was not at all agitated because no allegation was made to the invalidity of the adoption for want of husband's authority nor was any evidence led before the arbitrators against the validity of the adoption on this score. The arbitrators on the other hand held in their award that there was a valid adoption, and that is why they felt the necessity of setting aside-the adoption, and so set it aside. If the adoption was not valid there was no question of its setting aside. Moreover, Ram Nath, the natural father of Bhim Singh as well as of plaintiffs Nos. 1 to 5 would be the best person to know whether Budhan, his brother, had authorised Har Kaur to adopt a son and if there was no such authority he would have raised an objection. As a matter of fact, after the death of Bhim Singh he still described Bhim Singh as the adopted son of Budhan when the mutation of his estate was sanctioned at his instance in favour of Bhim Singh's sons. It was held by the Privy Council in Venkata Seetharama Chandra Row v. Kanchmnarthi Raju, AIR 1925 PC 201, that the burden resting upon any litigant who challenge the authority of an adoption that has, been recognised as valid during a long course of years is of the heaviest order. No cogent or convincing evidence has been led to prove that in fact there was no authority to adopt. The authority to adopt must be presumed in view of what I have already stated above for otherwise the adoption would not have been recognised particularly when the parties are Brahmins and are well aware of the requirements of a valid adoption. It was held in Panna Lal v. Chiman Parkasb, AIR 1947 Lah 54, at n. 67 by Mahajan J., (as he then was) as under:—
“In respect of an old adoption strict proof of the performance of the ceremonies cannot be demanded.
11. An adoption acquiesced in and recognised for a number of years by the person making the adoption and a long course of recognition on the part of that person and by the brotherhood who were best acquainted with the circumstances gives rise to the inference that the conditions relating to the adoption were fulfilled.”
12. This decision was followed by the Madhya Bharat High Court in Permanand v. Laxminarain, AIR 1955 Madh Bharat 129. It was held in Nandkishore v. Brijbehari, AIR 1955 Raj 65—
“That in the case of an old adoption a presumption in favour of the validity of adoption may be gathered from the status of the adopted son in the adopting family and its recognition by the members of the family for a number of years. The onus of proving adoption ordinarily is on the party who alleges it. But after lapse of long years it is natural that evidence, of adoption may disappear and it may become very difficult to find any witnesses of the ceremony of actual giving and taking in adoption. In such cases some evidence of the fact of adoption may be regarded as sufficient to shift the burden on the other side to prove want of adoption.”
13. These observations fully apply to the facts of the present case. The entire approach of the Courts below on this part of the case is erroneous. The case has been judged on the basis that the onus to prove the validity of the adoption rested on the defendants, whereas in the circumstances of this case considering the time that had elapsed between the adoption and the effective challenge to it the Court should have approached the question from the point of view that as the factum of adoption stood proved its validity must be assumed till it is proved by some cogent and convincing evidence that the adoption is invalid for want of husband's authority.
14. That the requirement as to husband's authority is directory and not mandatory.
15. It cannot be disputed that under the Hindu law such a direction is mandatory but so far as the customary law is concerned the recent view is that the customary adoption being secular in character and being nothing more than an appointment of an heir the requirements as to ceremonies or the selection of person to be adopted are directory. In this connection reference may usefully be made to the decision of the Supreme Court in Hem Singh v. Harnam Singh, AIR 1954 SC 581 wherein their Lordships laid down the following rule:—
“Whether a particular rule recorded in the Riwaj-i-am is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu-Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have, therefore, been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the customary law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid.”
16. In a large number of cases now it has been held that an adoption made without the consent of the reversioners is a valid adoption. Under the Punjab Customary Law a widow can adopt either with the consent of the reversioners or under an authority granted to her by the husband. It cannot be that one part of the requirement is held to be directory and the other mandatory. Therefore, it must be held that the requirement as to the authority from the husband to adopt is merely directory and not mandatory. The adoption of Bhim Singh by Har Kaur must, therefore, be held to be valid.
17. This would put an end to the entire case and would defeat the plaintiffs' suit, but as the question of limitation was argued at length it would be proper also to record a finding thereon. This matter was argued on the assumption that the award decree is a valid decree. As I have already indicated no execution of the award decree was taken. No change of possession even otherwise in accordance with the award resulted. As a matter of fact, there is no mutation whereby the change of possession took place nor are there any Khasra girdawaris which indicate that after the award change of possession took place. It is in this situation that the Courts below were forced to the conclusion that the parties remained in actual possession of the land in the same manner after the award as they were before the award. Before the award the parties were recorded as co-sharers half and half, i.e, Bhim Singh one-half and Ram Nath one-half. Land in actual cultivating possession was, however, not in accordance with this proportion. Same state of affairs continued after the decree. The decree was passed in the year 1937 and the state of affairs has continued right up to the year 1957, i.e, the date of the suit. Therefore, the learned counsel for the appellants urges that the severance in status which was sought to be made by the award decree having not been brought about it must be taken that the joint status has continued in this connection the learned counsel has placed reliance on a Privy Council decision in Vasudeva Padhi v. Maguni Devan, ILR 24 Mad 387. In this case, grant was made to one of the brothers but in the revenue records the descendants of the other brother and the brother to whom the grant was made continued in possession of the granted property as co-sharers. This continued even after the son of the brother to whom the grant was made had attained majority. After lapse of twelve years from the date of majority, the son of the brother to whom grant was made claimed the properties as his separate properties. This contention was repelled by their Lordships of the Privy Council on the ground that he having connived at the joint status could not plead his separate status. At page 395 of the report, this is what their Lordships observed:—
“Their Lordships for the purpose of their judgment, will make the assumption which is most favourable to the appellant, and they will assume in his favour that up to the year 1858, the date of the death of the surviving brother, it was treated as, and was, separate property of Bayana, to which the appellant was entitled to Succeed as his heir. But on that assumption the appellant was dispossessed, or discontinued his possession of his separate property, in favour of the joint estate at least on the death of his Uncle in the year 1858; and the case comes within No. 142 in the second schedule; but if that he not so the possession of the joint family was at any rate adverse to his separate estate from the same date; and it thus comes within No. 144. It 48 immaterial for the present purpose which article if comes under. That being so, the appellant could not have brought an action after the expiration of three years alter he attained his majority (say) 1873.”
18. To the same effect are the observations in Dwarka Nath Chowdhury v. Shasti Kinkar Banerjee, 18 Ind Cas 869 (Cal); Babaji Daso v. Jivaji Yeshvant, AIR 1930 Bom 383, and Punit Mahton v. Kishundeyal Mahton, AIR 1947 Pat 380. The case which is almost analogous to the present case is AIR 1930 Bom 333.
19. To reinforce this contention, Mr. Awasthy relies on another rule that the mere passing of a decree does not interrupt the existing state of affairs unless the decree is given effect to by execution or other methods and as the decree was not so given effect to it remained a dead letter and the existing state of affairs was not interrupted. In this connection, reference may be made to Subbaiya pandaram v. Mahamad Mustapha Masracayar, ILR 46 Mad 751 : 50 Ind App 295 : (AIR 1923 PC 175) and Dagadabai Fakirniahomed v. Sakharam Gayaji, AIR 1948 Bom 149. The contention of the learned counsel for the respondents, on the other hand, is that in actual effect the plaintiffs are in possession of 600 and odd Kanals of land whereas the dependants Nos. 1 and 2 are in possession of 125 odd Kanals of land and, therefore, it must be assumed that this possession is referable to the decree. I am unable to accept this contention have already indicated that no change in possession was brought about under the decree and it is hardly necessary to repeat those facts again. The decree was not given effect to and the state of affairs that existed before it continued. It is a settled rule that unequal possession by any one or more of the co-sharers is not adverse to the other co-sharers so far as that possession is in excess of the share to which the co-sharer or co-sharers would be entitled to on partition. No open or hostile act on the part of the plaintiff-co-sharers with regard to their possession of the suit land in excess of their share has been proved which may amount to the ouster of the defendants or their father, so as to lead to the conclusion that they were holding the land in excess of their share adversely. For the reasons gives above, I am of the view that this appeal must be allowed. I accordingly allow this appeal set aside the judgments and decrees of the Court below and dismiss the plaintiffs' suit but in view of the close relationship of the parties and difficult nature of the question involved, leave the parties to bear their own costs.
EF/V.B.B
20. Appeal allowed.
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