MANGAL SINGH Vs. KEHAR SINGH

JUDGEMENT

(1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for possession of land measuring 81 kanals 6 marlas and 397 kanals 8 marlas situated at village Manghali and Khuda Kalan, Tehsil and District Ambala, was dismissed. This appeal raises the following substantial questions of law :-

(2.) WHETHER the plaintiffs can claim the estate of the deceased on the basis of caste and sub-caste, as nearest heir of the deceased ?

(3.) THE learned trial Court found that the plaintiffs are not related to the deceased in any way and that from the documents Exhibits D-1 to D-3 i.e., gift deeds executed by Ami Singh and Maro in favour of Bhondu and Will executed by Kalahri in favour of Bhondu, a finding was returned that Bhondu was living with Ami Singh even before his adoption as son and, therefore, the custom could come into picture only when there had been no adoption and no appointment of any heir. In respect of Issue No. 2, it was held that prior to enforcement of Hindu Succession Act, 1956, the agriculturists were governed by custom in matters of succession and that the property of Rajputs will not escheat but it will revert to the other members of the same community to the extent of equal shares. Since Bhondu was found to be the adopted son, therefore, the plaintiffs have no right in the estate of deceased Ami Singh. The learned trial Court also found that since Bhondu is established to be adopted son of Ami Singh, therefore, adoption will relate back to the death of Ami Singh. Under issue No. 6, it was held that there is no evidence that gift deeds Exhibits D-1 to D-2 registered on 18.5.1890 fabricated documents but were found to be acted upon by the revenue authorities and were not challenged for a long time. Therefore, the gift deeds cannot be challenged after several decades. In respect of Will, it was found that Will Exhibit D-3 dated 9.6.1917 is a registered document and admissible in evidence being more than 30 years old. It was found that more than 60 years have lapsed since the Will was executed and it is a registered document and that the Will was acted upon as the property was mutated in the name of deceased Bhondu. Under Issue No. 9, it was held that the plaintiffs are not related to deceased Ami Singh or Kalahri and no right vest in them merely because they belong to the same Gotra. The question of limitation was also decided in favour of the defendants as it was found that the gift deeds and the Will executed more than 60 years earlier cannot be challenged in the present suit.