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Jangir Singh v. Ajmer Singh, Etc.
Judicial Opinion Summary (Gopal Singh, J.)
Factual and Procedural Background
This is an appeal by Jangir Singh (the defendant in the original suit) against Ajmer Singh, Nihal Kaur and Dhan Kaur (the plaintiffs) and Jaggar (Jagga) Singh (defendant No. 2) from the judgment and decree of Shri Muni Lal Verma, District Judge, Bhatinda dated May 31, 1967, which had modified on appeal the judgment and decree of Shri Pawan Kumar Garg, Sub-Judge, Mansa that had decreed the plaintiffs' suit for possession of land.
Facts as set out in the opinion: Bir Singh died in 1938. His widow Har Kaur succeeded to his estate as a limited owner. On January 27, 1956, Har Kaur executed a registered deed of adoption purporting to adopt Jangir Singh (son of Bhagwan Singh). The plaintiffs — Ajmer Singh, Nihal Kaur and Dhan Kaur — are children of Smt. Kishno (claimed to be Bir Singh's real sister) and sued for possession of agricultural land measuring 1-5 kanals 18 marlas, alleging (a) they are heirs of Bir Singh through his sister, (b) the adoption deed in favour of Jangir Singh was fictitious and ineffective against them, and (c) they were entitled to possession.
The defendant (Jangir Singh) resisted, pleading (inter alia) that he had been duly adopted by Bir Singh earlier, that the adoption deed was executed by Har Kaur in deference to Bir Singh's alleged direction, that the property passed to him as testamentary disposition, and that the suit was barred by limitation.
Legal Issues Presented
- Whether Smt. Kishno, mother of the plaintiffs and defendant No. 2, was the real sister of Bir Singh (question of relationship/succession).
- Whether the suit is barred by the period of limitation.
- Whether the adoption deed dated 27th January, 1956 is valid.
- If issue No. 3 is not proved, whether the deed dated 27th January, 1956 operates as a Will (i.e., whether it can be treated as testamentary disposition).
Arguments of the Parties
Appellant (Jangir Singh) / Counsel Shri K.C. Puri
- Did not contest the factual finding that Smt. Kishno was the real sister of Bir Singh (issue No. 1) and conceded the limitation finding (issue No. 2) made by the courts below.
- On limitation, argued that Article 65 of the Limitation Act, 1963 governs (12 years for suit for possession based on title) rather than Article 57; the suit filed on February 3, 1965 was within the 12-year period measured from when possession became adverse to the plaintiffs.
- Contended, as an alternative, that the deed of adoption dated January 27, 1956 could operate as a Will entitling defendant No. 1 to the property.
- As a further argument, submitted that even if Har Kaur was a limited owner at the date of execution of the deed, she became absolute owner by operation of Section 14 of the Hindu Succession Act, 1956 when it came into force on June 17, 1956, and that her subsequently acquired status should validate testamentary disposition (i.e., the document operating as a Will after that date).
Plaintiffs (Ajmer Singh, Nihal Kaur and Dhan Kaur)
- Pleaded they were entitled to succeed to Bir Singh's property as children of Smt. Kishno (Bir Singh's sister).
- Asserted the deed of adoption executed by Har Kaur in favour of Jangir Singh was fictitious/ineffective and should be avoided.
- Alleged that Har Kaur held the estate as a life (limited) estate and the plaintiffs could sue for possession after her death (she died in 1964), which led to the filing of the suit on February 3, 1965.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court's reasoning proceeds in discrete steps corresponding to the issues identified:
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On the relationship issue (Issue No. 1):
The courts below had found as a fact that Smt. Kishno was the real sister of Bir Singh and that the plaintiffs were her children. The appellant did not contest that finding; the judge observed that it is a factual finding and not liable to be re-agitated in this appeal.
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On limitation (Issue No. 2):
The court accepted the submission that Article 65 of the Limitation Act, 1963 applies to suits for possession of immovable property based on title (12 years from date when defendant's possession becomes adverse to plaintiff's interest). The plaintiffs' suit (filed February 3, 1965) was a suit for possession based on their title by succession as heirs of Bir Singh. The plaintiffs alleged Har Kaur held the estate as life tenant and that the suit was filed after her death in 1964. Even if the defendant's adverse possession were assumed to begin on January 27, 1956 (date of the adoption deed), the suit would still fall within the 12-year period; therefore the suit was not time-barred.
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On validity of the adoption deed (Issue No. 3):
The court analyzed the surrounding facts and found the purported adoption implausible. Key aspects of the analysis included:
- If Jangir Singh had been adopted by Bir Singh during Bir Singh's lifetime (before 1938), the property mutation and steps consistent with adoption would have occurred soon after—yet there was no such mutation and no evidence of possession by Jangir Singh following 1938.
- The deed of adoption was executed only in 1956, some 18 years after Bir Singh's death. The long delay and absence of steps taken earlier pointed to the inference that the adoption was contrived after Bir Singh's death as a device to enable Har Kaur (a limited owner) to transfer the property to her brother's son.
- Both lower courts had found on the evidence that Jangir Singh was never adopted by Bir Singh before his death and that Bir Singh did not leave any direction to Har Kaur to execute and register such a deed; these are findings of fact and not disturbed on appeal.
On that basis the court concluded the adoption was not proved and the adoption deed was invalid.
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On the alternative contention that the deed could operate as a Will (Issue No. 4):
The court rejected the contention that the adoption deed could be treated as a testamentary document for the following reasons drawn from the opinion:
- The alleged factual foundation for treating the deed as testamentary (that Bir Singh had earlier adopted defendant No. 1 or left a direction to his wife) was found to be false; the deed's genesis was held to be an attempt to deprive the plaintiffs of succession rights.
- Har Kaur was a limited owner at the time the deed was executed and therefore lacked the competency to make a testamentary disposition of the property she held as a limited owner. Competency to execute a will is a condition precedent; a person without such power at the time of execution cannot create an operative will.
- The court expressly held that competency for testamentary disposition is to be judged as at the date of execution of the document; a subsequent change in legal status (the coming into force of the Hindu Succession Act, 1956 and any vesting under Section 14) cannot retrospectively validate a document that was incompetent at the time it was executed.
- The language and structure of the document itself read as an adoption deed (not a will), relying on the (found to be false) premise of prior adoption and direction; thus it was not legitimately convertible into a will.
Accordingly, the court held that the deed could not operate as a will.
Holding and Implications
Holding: The appeal is DISALLOWED. The appellate court made no order as to costs.
Implications and direct effects:
- The findings of the courts below that (a) Smt. Kishno was the real sister of Bir Singh, (b) the suit was not barred by limitation, (c) the adoption of Jangir Singh was not proved, and (d) the adoption deed did not operate as a will, stand affirmed as not open to re-agitation in this appeal.
- As a direct practical consequence, the appellant (Jangir Singh) fails to acquire the property either by adoption or by treating the deed as a testamentary disposition, thereby leaving the plaintiffs' entitlement to possession intact as determined by the courts below.
- The opinion did not purport to lay down any broader legal precedent beyond the application of established principles (e.g., limitation under Article 65, competency to execute a will judged at date of execution, and standard of disturbing findings of fact on appeal). No new principle of law was announced in the opinion.
This summary is confined to the matters expressly set out in the provided opinion and does not add or infer information beyond the text.
Gopal Singh, J. - This is appeal by Jangir Singh defendant against Ajmer Singh, Nihal Kaur, Dhan Kaur and Jaggar Singh plaintiffs from the judgment and decree of Shri Muni Lal Verma, District Judge, Bhatinda dated May 31, 1967, modifying on appeal the judgment and decree of Shri Pawan Kumar Garg, Sub-Judge, Mansa decreeing the suit of the plaintiffs for possession of land. 2. Facts leading to the appeal could be better appreciated from the following pedigree table :- 3. Bir Singh died in 1938. His widow succeeded to his estate as limited owner. On January 27, 1956, Har Kaur executed deed of adoption in favour of Jangir Singh son of Bhagwan Singh, defendant by appointing him as adopted son on the basis of the direction received from her husband. The deed was registered on January 31, 1956. Suit for possession of agricultural land measuring 1?5 kanals 18 marlas was filed by Ajmer Singh, Nihal Kaur and Dhan Kaur plaintiffs against Jangir Singh defendant. Jagga Singh, another son of Smt. Kishno was impleaded as defendant No. 2. In that suit, it was pleaded that after the death of Bir Singh, Har Kaur succeeded to the land in suit, that the plaintiffs being the son and daughters of Smt. Kishno, sister of Bir Singh were entitled to succeed to the property, that the deed of adoption said to have been executed by Har Kaur in favour of Jangir Singh was a fictitious document and ineffective against the plaintiffs and that they were entitled to decree for possession of the land against Jangir Singh defendant. The suit was resisted by Jangir Singh defendant on the pleas that the plaintiffs were not nephews of Bir Singh and Har Kaur, that Jangir Singh had been duly adopted by Bir Singh long before his death, that the deed of adoption in favour of Jangir Singh had been executed by Har Kaur in deference to the wishes of her husband and that in any case the property devolved upon Jangir Singh by way of testamentary disposition. It was also pleaded that the suit was barred by time. 4. The above controversy between the parties gave rise to the following issues :- "(1) Whether Smt. Kishno, mother of the plaintiffs and defendant No. 2 was the real sister of Bir Singh deceased ? (2) Whether the suit is barred by the period of limitation ? (3) Whether adoption deed dated 27th January, 1956 is valid ? (4) If issue No. 3 is not proved, whether the deed dated 27th January, 1956 operates as a Will ? 5. Both the Courts below held on issue No. 1 that the plaintiffs and defendant No. 2 were sons and daughters of the real sister of Bir Singh, that the suit was not barred by time that adoption of defendant No. 1 had not been proved and that the deed did not operate as a Will . 6. Shri K.C. Puri appearing on behalf of the appellant did not contest the finding given on issue No. 1 by the two Courts below that Smt. Kishno, mother of the plaintiffs and defendant No. 2 was the real sister of Bir Singh. Even otherwise, the finding on that issue being finding of fact cannot be re-agitated in second appeal. As regards issue No. 2, he conceded that the finding given by the two Courts below that the suit was not barred by time is correct. The articles, which Will govern the present suit is article 65 of the Limitation Act, 1963 and not article 57. According to article 65, the period of limitation to institute a suit for possession of immovable property or any interest therein based on title is 12 years commencing from the date, when the possession of the defendant becomes adverse to the interest of the plaintiff. The present suit filed by the respondents-plaintiffs is a suit for possession of immovable property based on their being heirs of Bir Singh, the last male-holder. So, the suit for possession is based on their title on the ground of inheritance to the property left by Bir Singh. According to the plaintiffs the estate of Bir Singh was after his death held by his widow Har Kaur as life estate and they were entitled to file the present suit for possession of the property after she died in 1964. The suit was filed on February 3, 1965, Article 57 of the Limitation Act deals with a suit brought to obtain a declaration to the effect that an alleged adoption is invalid or never in fact took place. By the present suit, the principal relief is not the relief for obtaining declaratory decree as to the adoption of defendant No. 1 being invalid but it is suit for the principal relief to recover possession on the ground of title as heirs and it is only incidentally that the adoption deed is sought to be avoided by the plaintiffs because of the stand taken by defendant No. 1 Jangir Singh saying that he was the adopted son of Bir Singh. The suit for possession could be instituted within 12 years from the date, when the possession of the property in suit ceased to be the possession of Har Kaur and became the possession of Jangir Singh defendant adverse to the interest of the plaintiffs. Even if, it could be assumed that the land in suit came to be possessed by defendant No. 1 on January 27, 1956, when the deed of adoption, Exhibit D.1 is said to have been executed for which there is nothing on the record to show that soon after the execution of that document, the land as mutated in favour of defendant No. 1 and he came into possession of the property, the suit Will still be within time. 7. Issue No. 3 deals with the question as to whether the deed of adoption dated January 27, 1956 is valid. The attending circumstances of the case leave no doubt that Jangir Singh, defendant No. 1 could not have been adopted by Bir Singh, then soon after the death of Bir Singh in 1938, the land left by Bir Singh would have been mutated in the name of defendant No. 1. It is admittedly, the case of defendant No. 1 that no such mutation of the land in suit was effected in his favour. Although Bir Singh died in 1938, yet the deed of adoption was not executed till January 27, 1956. Had in fact defendant No. 1 been adopted by Bir Singh as his son during his life-time and had he issued the direction as is claimed to have been issued by him to his wife to execute a deed of adoption of that document and its registration would have followed soon after the death of Bir Singh. The very fact that no action was taken by Har Kaur for as long a period of time as 18 years to execute the deed of adoption and to get it registered goes a long way to point out to the inference that in fact defendant No. 1 had been given by him to his wife during his life time to executed and get registered deed of adoption after his death. 8. After the death of Bir Singh in 1938, Har Kaur came to possess the property of her husband as limited owner. It is after lapse of period of 18 Years that in order to overcome the difficulty of want of power on her part to alienate the property in favour of defendant No. 1 son of her brother Bhagwan Singh that device and camouflage of adoption was resorted to. It is on account of that reason that in the body of that deed, it had to be incorporated that defendant No. 1 had been adopted by Bir Singh in his life-time and that he before his death lift a direction for his wife to execute deed of adoption in favour of defendant No. 1 and to get it registered. If the defendant had in fact been adopted by Bir Singh as his son, there is no reason why he himself should not have executed and got registered deed of adoption in his life-time. Even if he had been adopted and he had left the above-said direction for his wife, there is no reason why that direction should not have been promptly carried into effect by the deed of adoption being executed by her in favour of defendant No. 1 soon after his death. This divisive way of bringing into existence the facts of defendant No. 1 having been adopted and the direction for execution and registration of adoption deed having been left by the deceased was resorted to overcome the difficulty of incompetency of Har Kaur on the ground of her being limited owner to transfer the property either by Will to defendant No. 1 or to independently appoint defendant No. 1 as her adopted son. 9. Both the Courts below have found that the stand of defendant No. 1 that he had been adopted by Bir Singh and that he left any direction prior to his death for his widow Har Kaur to get deed of adoption in favour of defendant No. 1 executed and registered is incorrect and untenable. On the basis of the evidence led in the case, they have unanimously come to the conclusion that Jangir Singh had in fact never been adopted by Bir Singh before his death and that he never gave any authority prior to his death to Har Kaur directing her to execute on his behalf a deed of adoption in favour of the defendant No. 1 and to get the same registered as during his life-time he had not been able to do so. These conclusions being findings of fact cannot be sought to be disturbed in this appeal. 10. After discussion of the above facts and circumstances relevant to issue No. 3, the counsel for the appellant conceded that the findings that defendant No. 1 had in fact not been adopted by Bir Singh and that he had not left any direction for execution and registration of adoption deed in favour of defendant No. 1 are findings of fact and could not be re-agitated in the second appeal. Having given the findings that defendant No. 1 had never been adopted by Bir Singh and that he had never left any direction as was sought to be made out on behalf of defendant No. 1 that deed of adoption was to be executed by Har Kaur and the same was to be got registered after his death, the Courts below considered the question whether Jangir Singh had been validly adopted and came to the obvious conclusion that the adoption of defendant No. 1 was not valid. Thus, the defendant failed to prove issue No. 3. 11. Finding that defendant No. 1 has failed to prove issue No. 3, Shri Puri seeking shelter under issue No. 4 argued that deed of adoption dated January 27, 1956 could operate as a Will . As claimed on behalf of defendant No. 1 and as is also mentioned in the body of the adoption deed itself, the necessity of deed of adoption arose because he had been adopted by Bir Singh prior to his death in 1938. The deed of adoption had not been executed by Bir Singh in his favour and the same could not be got registered by him. A direction is said to have been left by him with his wife during his life-time that the latter should execute deed of adoption in favour of defendant No. 1 and get t he same registered. In other words, it is the fact of adoption and also the fact of direction given by Bir Singh to his wife, which necessitated the execution of adoption deed in favour of defendant No. 1 on behalf of Bir Singh by his wife and its registration. As already discussed under issue No. 3, there was no adoption of defendant No. 1 by Bir Singh nor there had any direction been given by him to his wife for execution of deed of adoption and its registration. Having been found as a fact that defendant No. 1 had never been adopted by Bir Singh and no direction in connection with his adoption for execution of deed of adoption by his wife having been left by the former with the latter, the deed of adoption could not have come into existence. It came into existence because of the anxiety on the part of wife of Bir Singh to deprive the plaintiffs of the property, which would have been succeeded by them, had she not resorted to that devisive mode of depriving the daughters ad son of the sister of her husband and enabled her brother's son to succeed to the property. According to these facts and circumstances, it could not be held that Bir Singh ever intended that defendant No. 1 be adopted as a boy or any deed of adoption pertaining to his adoption be executed by his wife after his death. In the face of these facts and circumstances, it could not be legitimately contended that the deed of adoption can operate as a Will . Har Kaur being limited owner had not right to act as a testator and to alienate the property of her husband, which she held as limited owner. Being limited owner, she was incompetent to execute Will . A Will executed by a person, who has no power or authority to alienate property by Will, cannot become operative upon his or her death. Competency to execute a Will is a condition precedent for testamentary disposition of property. Apart from there being no justification for execution of the deed, Exhibit D.1 by Har Kaur on the ground of the alleged adoption and the direction having been found to be false, Har Kaur had no locus-standi to pass the property to her brother's son by way of Will . Moreover, the contents of the deed read as a whole admit of no doubt that the document was meant to be out and out a deed of adoption because of defendant No. 1 having been adopted by her husband and because of his having left direction for execution of that document with her. Under these circumstances, it is not open to defendant No. 1 to contend that if the adoption of defendant No. 1 is not established, the document may be treated as a Will and used as a conduit pipe for transfer of the property from Har Kaur to defendant No. 1 after her death. 12. In the light of the facts as discussed above, the alternative of the document being treated as a Will and defendant No. 1 being entitled to succeed to the property on the death of Har Kaur creates an anamolous position and the stand taken by him becomes inconsistent and untenable. 13. In order to overcome the difficulty of Har Kaur being a limited owner and unable to execute a Will, Shri Puri contended that even if initially at the time of execution of deed, Exhibit D. 1, Har Kaur being a limited owner was incompetent to operate as a Will, she became absolute owner of the property under Section 14 of the Hindu Succession Act, 1956, when it came into force on June 17, 1956 and that as she became absolute owner of the property on the date of enforcement of the Hindu Succession Act and had that status thereafter upto the date of her death, the property could pass to her legate independent of the consideration whether initially on the date of execution of the document, she had or she had no right to execute that document. Apart from the premises of facts claimed on behalf of defendant No. 1 leading to the execution and registration of the document having been found to be false and the document inoperative having been found to be false and the document inoperative and consequently his stand of the document being treated as a Will being untenable, the relevant date for the competency of the executant for the execution of the document to pass the property by way of testamentary disposition through that document is the date of its execution and not the subsequent change in that status. Being limited owner, she had no right to execute that document and consequently no right to alienate the property by way of Will . It is only her husband, which could do so. If no right inhered in her to execute that document by way of Will on the date, when it was executed subsequent change in her status cannot relate back to the date of execution of the document. Hindu Succession Act made her absolute owner after the execution of that document and conferred that right upon her thereafter. Under these circumstances, it would not be held that the deed of adoption dated January 27, 1956 could operate as a Will . 14. For the foregoing reason, I disallow the appeal and make no order as to costs. Appeal disallowed.
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