SEWA SINGH Vs. CHALTI

JUDGEMENT

(1.) In this appeal the short facts are these : Hari Ram had two wives namely Nihali and Munni and also two daughters namely Chalti and Anto. Anto was married to Man Singh and Sewa Singh is the son of Anto from the loins of Man Singh. Chalti was married to Mokh Ram. She is the daughter of Nihali. On the death of Hari Ram, Nihali succeeded to half of the share of the land of Hari Ram. Sewa Singh filed a suit for possession and declaration with respect to the half share of the land of Nihali contending that he is the adopted son of Nihali who had gifted her half share in the land in dispute to him. Thus he was the owner of the land in dispute. Nihali accepted the claim of Sewa Singh and resultantly a decree was passed on 1.7.1966 for possession in favour of Sewa Singh. Smt. Chalti filed a suit challenging the said decree being null and void and not binding on her rights and interest. She further challenged the adoption of Sewa Singh as well as the alleged gift and claimed that she was entitled to succeed to Nihali along with her other heirs. It was stated that no ceremonies of adoption were performed. No taking and giving took place. Sewa Singh was never transferred to the family of Nihali deceased. He was never treated as adopted son nor he could be adopted neither under the Hindu Law or Customary Law of Punjab as applicable in the State of Haryana. No gift of the land had taken place. The land in dispute could not be transferred by way of alienation through a decree inasmuch as it amounted to transfer of the interest in the immovable property of the value of more than Rs. 100/- without a registered instrument in writing duly stamped. No possession was ever delivered to Sewa Singh under the alleged gift. Nihali continued to be in possession of the land in dispute till her death in the year 1969. Nihali was a limited owner and could not make any valid gift of the land in dispute and on her death her heirs were entitled to succeed.

(2.) Sewa Singh defendant contested the suit. Objections with respect to locus standi of the plaintiff to file the suit as well as it being not within limitation were raised. The maintainability of the suit, valuation of the same for the purposes of Court-fee and jurisdiction and impleading of defendant Nos. 2 and 3 as necessary parties was challenged. It was further stated that Nihali was governed by custom. She was authorised to adopt Sewa Singh by her husband. No collateral objected to such adoption rather they consented. She came full owner with respect to the land in dispute. The relationship of Smt. Chalti with Hari Ram was denied. Numerous other objections were also taken. On the pleadings of the parties, the following issues were framed :-

(3.) The trial Court found Smt. Chalti Devi to be the daughter of Hari Ram as the same was conceded by the defendants. Decree dated 1.7.1966 was held to be null and void qua the plaintiff. Sewa Singh was held neither to have been in fact adopted by Smt. Nihali nor found to have been validly adopted according to the costim. No ceremonies with respect to adoption were found to have been performed. It was found that the daughter's son cold not be adopted by Nihali. There was no authority with her from her husband for adoption. The suit was held to be within limitation and not pre-mature. It was found to be properly valued for the purposes of Court-fee and jurisdiction. The plaintiff Chalti Devi was held to be competent to challenge the decree dated 1.7.1966. The parties were held to be governed by custom and it was found that daughter's son could not be adopted according to the custom. It was further found that there was in fact no gift made by Nihali in favour of Sewa Singh. Even if it was there, the same could be only of limited interest and on the death of Nihali the succession opened and the children of Nihali were found to be entitled to succeed. It was found that Nihali could make a gift. But at the time of the alleged gift, Nihali was a limited owner. On coming into force of Hindu Succession Act, 1956 , she had not become full owner. Resultantly, the suit of the plaintiff was decreed for joint possession as well as for declaration to the effect that the decree dated 1.7.1966 was null and void.