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Judgments of Supreme Court of India and High Courts

Swaroop Singh vs Subhash Singh on 2 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.

..

(1) S.B. Civil First Appeal No. 23 / 1993

(Arising out of Civil Original Suit No.104/1987)

Swaroop Singh son of Doongar Singhji Devra, resident of Mev,
District: Sirohi. —-Appellant

Versus

Subhash Singh son of Shri Khuman Singhji Ranawat, resident of
Kankarva, Tehsil Kapasan, District Chittorgarh. —-Respondent

(2) S.B. Civil First Appeal No.154 / 1992

(Arising out of Civil Original Suit No.47/1986)

Appellants :

Legal Representatives of Nathu Lal son of Modilal Mali:

1/1. Legal Representatives of Ganesh Lal son of Nathulal Mali:

1/1/1. Smt. Geeta Mali widow of Ganesh Mali

1/1/2. Chetan Mali son of Ganesh Mali

Both residents of New Mali Colony,

Jhada Aamla Tekri Road, Udaipur

1/1/3. Sunita Mali wife of Puneet Bamnoshia

1/1/4. Jaya Mali wife of Suresh Mali

1/1/5. Sashi Mali wife of Wardichand Mali

All daughters of Ganesh Mali

All residents of 16, New Ashok Vihar, Chandanwadi

Road, Gali No. 4, Udaipur
(2 of 35)
[ CFA-154/1992]

1/2. Smt. Shanta Devi wife of Shri Narainlal (d/O Nathulal Mali)

Resident of Bhopalpura, Udaipur

Through power of attorney holder

Narainlal son of Hari Ram Mali

resident of Sardarpura, Udaipur.

—-(defendant)

Versus

Respondent :

Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of
Kankarva, Tehsil Kapasan, District Chittorgarh.

—-(plaintiff)

Connected With

(3) S.B. Civil First Appeal No. 141 / 1992
(Arising out of Civil Original Suit No.48/1986)
Swaroop Singh son of Shri Doongar Singhji Devra, resident of
Mev, District Sirohi. —-Appellant

Versus

Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of
Kankarva, Tehsil Kapasan, District Chittorgarh. —Respondent

(4) S.B. Civil First Appeal No. 142 / 1992
(Arising out of Civil Original Suit No.50/1986)

Narayan Lal son of Shri Hari Ramji b/c Mali, resident of
Sardarpura, Udaipur. —-Appellant

Versus

Subhash Singh son of Shri Khuman Singhji Ranawat, Resident of
Kankarva, Tehsil Kapasan, District Chittorgarh. —-Respondent
(3 of 35)
[ CFA-154/1992]

(5) S.B. Civil First Appeal No. 22 / 1993

(Arising out of Civil Original Suit No.49/1986)

Swaroop Singh son of Shri Doongar Singhji Devra, resident of
Mev, District Sirohi. —-Appellant

Versus

Subhash Singh son of Shri Kuman Singhji Ranawat, resident of
Kankarva, Tehsil Kapasan, District Chittorgarh. —-Respondent

__
For Appellant(s) : Ms Rekha Borana
For Respondent(s) : Mr. Arpit Bhoot
__
JUSTICE DINESH MEHTA
Judgment
02.04.2018

The present group of appeals arise out of five separate

judgments dated 20.08.1992 passed by learned Addl. District

Judge No.2, Udaipur (hereinafter referred to as ‘the Trial Court’) in

five civil suits involving common question of facts and law,

questioning the identical sale deeds executed by defendant No.2 –

Smt. Anand Kumari.

All the five appeals are being decided conjointly vide this

common order. However, the facts relating to Civil First Appeal

No.23/1993 (Swaroop Singh Vs. Subhash Singh), emanating from

the judgment and decree passed in Civil Original Suit

No.104/1987 (Old No.103/1978) are being taken into

consideration, as a lead case.

(4 of 35)
[ CFA-154/1992]

The facts apropos this appeal are that one Khuman Singh

sold a part of open land ‘Badi’, vide registered sale deed dated

24.08.1996 to his wife – Smt. Anand Kumari. Said Khuman Singh

died on 02.01.1972, whereafter his wife Smt. Anand Kumari

adopted Subhash Singh, the plaintiff – respondent herein as per

Hindu customs and rituals. Anand Kumari – owner of the land in

question thereafter sold a part of the said land to defendant No.1

– Raj Kumari and executed a registered sale deed on 25.05.1976.

The plaintiff Subhash Singh – the adopted son, instituted a

suit for declaration and possession, inter alia, contending that his

natural father Narendra Singh Ranawat had given him in adoption

to Sh. Khuman Singh Ranawat, on whose behalf, the defendant

No.2 – Smt. Anand Kumari had observed the requisite ceremony

as per the customs prevalent. The plaintiff stated that apart from

observing customary formalities on 14.1.1972, the defendant No.2

– Smt. Anand Kumari executed an adoption deed, ratifying the

adoption, which was on behalf of herself and her husband Shri

Khuman Singh Ranawat. It has also been asserted in the plaint

that at the time of adoption, with a view to protect the plaintiff’s

interest, who was a minor at the relevant time, the defendant

No.2 had also executed an agreement (on the same date viz.

14.1.1972), in favour of his natural father Narendra Singh, inter

alia, assuring that all the properties belonging to her and her

husband would not be sold and that the plaintiff would be the sole

owner / successor for the same.

(5 of 35)
[ CFA-154/1992]

Laying challenge to the sale deed dated 25.05.1976, the

plaintiff contended that the contentious sale of plot No.225 carved

out of House No.26/560, situated in Sardarpura, Udaipur by the

defendant No.2 – Smt. Anand Kumari was illegal and unauthorized

in teeth of the agreement dated 14.1.1972; for which it was

sought to be declared illegal and without authority.

The plaintiff’s entire case was edificed on the agreement

dated 14.1.1972, purportedly executed by his adoptive mother

Smt. Anand Kumari, at the time of his adoption. The plaintiff

contended that the sale in question to defendant No.1 was illegal

and liable to be declared as such, because the plaintiff having

been adopted by defendant No.2 and her husband Khuman Singh,

was the sole owner of the properties, belonging to them. It was

thus prayed that the sale deed dated 26.5.1976 for the properties

described in para No.4 of the plaint be declared null and void and

ineffective against his rights.

In response to the suit so filed by the plaintiff, defendant

No.1 – Smt. Raj Kumari filed a written statement and while

disputing the factum of execution of the agreement dated

14.1.1972, pleaded her ignorance about the same. It was in the

alternative contended that as she was not given any intimation or

notice of such agreement, it was inoperative qua her. It was also

asserted that she was a bonafide purchaser, with whom the

defendant No.2 had entered into an agreement of sale way back

on 7.2.1968, even prior to the adoption of the plaintiff. The

defendant No.1 asserted that as the plaintiff had not issued any
(6 of 35)
[ CFA-154/1992]

public notice of the alleged agreement dated 14.1.1972, he cannot

take any advantage of the same against the interests of defendant

No.1 – a bonafide purchaser.

The defendant No.2 – Smt. Anand Kumari – mother of the

plaintiff filed a written statement and she also disputed the very

execution of the alleged agreement dated 14.1.1972. Smt. Anand

Kumari maintained that on 14.1.1972, only the adoption deed was

signed by her; and that the agreement dated 14.1.1972

mentioned in the plaint was a forged document. The defendant

No.2 asserted that the plot in question was her self-acquired

property, having purchased from her husband Shri Khuman Singh

vide a registered sale deed, for which she was legally competent

to deal with it. She also stated in her written statement that she

had entered into an agreement of sale for the contentious

property to the defendant No.1 on 7.2.1968, while handing over

the possession of the plot to her and it was only in furtherance of

such contract of sale, the sale deed dated 25.5.1976 came to be

executed.

At the time of admission and denial of the documents, the

defendant No.2 categorically refused to have signed and executed

the agreement (Exhibit-2) dated 14.1.1972, but accepted the

execution of the adoption deed dated 14.1.1972 (Ex.1) filed along

with the plaint.

On the basis of the pleading of the parties, the Trial Court

framed following issues :-

(7 of 35)
[ CFA-154/1992]

^^1- D;k izfroknh;k ua- 2 us fnukad 14@1@72 dks oknh
dh vksj ls mlds dqnrhZ firk Jh ujsUnzflag ds i{k
esa ,d vuqca/k Jh [kqekuflagth ,oa Lo;a dh tk;nkn
dks [kqnZcqnZ] jgu] csg ugha djus ckcr fy[kk
2- D;k csgukek fnukad 26@5@76 oknh ds eqdkcys esa
‘kwU; gksdj csvlj gS
3- D;k fooknxzLr laifr izfroknh ua- 2 dh Lh/ku gksus ls
mls bls LFkkukUrj.k djus dk vf/kdkj gS
4- izfrdkj D;k gS **

On behalf of the plaintiff, PW-1 Subhash Singh; his natural

father PW-2 Narendra Singh; PW-3 Chandanmal; PW-4 Sajjan

Singh; and PW-5 Pratap Singh appeared in the witness box;

whereas DW-1 Narayan Lal; DW-2 Anand Kunwar; DW-3 Jaswant

Singh; and DW-4 Hemchandra Trivedi appeared in the witness box

to give their evidence.

The Trial Court, after appreciation of the evidence both oral

and ocular, decided Issue No.1 in favor of the plaintiff and held

that the defendant No.2 – Smt. Anand Kumari had executed the

agreement dated 14.1.1972 (Ex.2) in favour of plaintiff’s natural

father – Narendra Singh and undertook not to sell, alienate or

transfer her properties and the properties belonging to her

husband.

The Trial Court decided Issue No.2 also in favour of the

plaintiff and held that the defendant No.2, having executed the

agreement dated 14.1.1972 was precluded from selling the
(8 of 35)
[ CFA-154/1992]

property, vide subject sale deed dated 25.5.1976 to the defendant

No.1.

Issue No.3, as to “whether the contentious property was

‘stridhan’ of defendant No.2, for which she was not authorised to

transfer the same”; has also been decided in favour of the plaintiff

and against the defendant. While relying upon the judgment of

Hon’ble Supreme Court, rendered in AIR 1991 p.1869, the Trial

Court held that despite the property in question being a ‘stridhan’,

the sale effected by the defendant No.2 is void in light of the

agreement she had entered into, whereby she had bound herself

that she would not sell or alienate the same.

Having recorded these findings and decided the issues in

favour of the plaintiff, the Trial Court decreed the suit and declared

the sale deed dated 26.5.1976 to be null and void. While doing

the same, the Trial Court had also directed the defendant No.1 to

hand over the vacant possession of the said property within a

period of two months vide operative portion of the judgment and

decree dated 20.08.1992, which reads thus :-

^^11- mi;qZDr leLr foospu ds QyLo:i oknh dk okn
fo:) izfroknh lO;; fMØh fd;s tkus ;ksX; gSA
ifj.kkeLo:i oknh dk okn bl izdkj fMØh fd;k tkrk gS fd
foØ;i fnukad 26@5@76 rknknh :i;k 20]000@ tks
okn ds isjk ua- 4 esa vafdr laifr ds fo”k; esa izfroknhx.k ua-
2 }kjk izfroknh ua- 1 ds gd esa fu”ikfnr fd;k x;k mls ‘kwU;

,oa izHkkoghu ?kksf”kr fd;k tkrk gS rFkk oknh ds okni ds
isjk ua- 4 esa vafdr IyksV ij oknh dks vkf/kiR; lqiqnZ djus
ckcr izfroknhx.k ds fo:) lO;; fMØh fd;k tkrk gSA
(9 of 35)
[ CFA-154/1992]

fookfnr ijhlj dks [kkyh djus gsrq izfroknhx.k dks nks ekg
dk le; fn;k tkrk gSA**

Calling in question the judgment and decree dated

20.08.1992 passed by the Court below, Ms. Rekha Borana

contended that the learned Trial Court has seriously erred in

decreeing the suit filed by the plaintiff – respondent herein. She

pointed out that during the pendency of the suit, defendant No.2 –

Smt. Anand Kumari had died and the plaintiff had taken no steps

for substitution of her legal representatives, as a result whereof,

the suit in question stood abated. It was further contended by

learned counsel for the appellant that defendant No.1 – Raj

Kumari had also died on 30.01.1990 and the plaintiff filed an

application seeking substitution of her husband only, without

bringing her other existing legal representatives on record. In

light of these facts, learned counsel for the appellant argued that

the suit in question had since abated and was liable to be

dismissed for non-joinder of necessary parties.

Ms. Borana vehemently argued that ignoring these

fundamental lacunae in the frame of suit, the Trial court had

seriously erred in passing the judgment and decree under

consideration, particularly when no legal representatives of

defendant No.2 – the seller of the property had been brought on

record.

Learned counsel for the appellant pointed out that the

defendant No.2 – the seller of the property, Smt. Anand Kumari
(10 of 35)
[ CFA-154/1992]

earlier having refused the execution of the agreement dated

14.1.1972, in her written statement had later admitted her

signatures on the document Ex.2, when she appeared in the

witness box, which admission has prevailed over the mind of the

Court below. Learned counsel for the appellant contended that

the testimony of Anand Kumari is worthless and meant only to be

discarded out-rightly in the facts peculiar to this case. Ms. Rekha

Borana further contended that learned Trial Court has failed to

consider a vital aspect of the matter that the property in question

was a self acquired property of defendant No.2 – Anand Kumari,

who was vested with all rights, including right to sell and alienate.

She contended that Anand Kumari had agreed to sell the plot in

question way back on 7.2.1968, even before adopting the plaintiff

(14.1.1972) and the said property was in continued possession of

defendant No.1 – Raj Kumari; and that the sale deed dated

25.5.1976 was only an act in furtherance of the earlier contract of

sale. She asserted that the agreement dated 14.1.1972 (Ex.2)

was a forged document and that is why, the same was not placed

along with the written statement. She submitted that the

defendant No.2 had also alleged the agreement dated 14.1.1972

to be a forged document and had taken a specific plea that no

such agreement was executed by her. Ms. Borana argued that the

defendant No.2 was bound by her stand and any deposition

contrary to it cannot be given any credence, in view of the settled

law that a party is bound by his/her pleadings and evidence or

statement contrary to such pleadings cannot be looked into.

(11 of 35)
[ CFA-154/1992]

In last, Ms Borana contended that without prejudice to her

earlier arguments, even if it is assumed that the agreement dated

14.1.1972 (Ex.2) was executed, the said document cannot be read

in evidence and no rights flowing therefrom can be asserted as the

same was an unregistered document. Extending her argument

further, she urged that purported agreement seeks to extinguish

or relinquish her rights in the immoveable property, in favour of

the plaintiff, for which it was compulsorily required to be

registered, as per the provisions contained under Section 17 (1)

(b) of the Registration Act, 1882. In absence of registration, the

same cannot be gone into as mandated by Section 49 of the

Registration Act, maintained learned counsel.

Learned counsel for the appellant argued that the document

Ex.2 on which the entire case of the plaintiff rested, could not be

read in evidence, while relying upon the judgment of Hon’ble

Supreme Court rendered in case of Dina Ji Ors., Vs. Daddi

Ors., reported in AIR 1990 SC 1153. Elaborating her

contentions in light of the judgment of Apex Court, she argued

that the document Ex.2, admittedly an unregistered document,

can neither be led in evidence nor the proprietary rights of the

appellant can be said to be extinguished or relinquished in favour

of the plaintiff, without a registered document. The relevant part

of the said judgment is being reproduced hereunder :-

“9. This Section enacts that when the parties intend to
limit the operation of proviso © to S.12, it is open to
them by an agreement and it appears that what she
included in the present deed of adoption was an
(12 of 35)
[ CFA-154/1992]

agreement to the contrary as contemplated in S.13 of
the Hindu Adoptions and Maintenance Act.

10. Section 17 (1) (b) of the Registration Act clearly
provides that such a document where any right in
immovable property is either assigned or extinguished
will required registration. It could not be disputed
that this part of the deed which refers to creation of
an immediate right in the adopted son and the
divesting of the right of the adoptive mother in the
property will squarely fall within the ambit of S.17 (1)

(b) and therefore under S.49 of the Registration At,
this could not be admitted if it is not a registered
document. Unfortunately, the Hon’ble Judge of the
High Court did not notice this aspect of the matter
and felt that what could not be done because of the
proviso (c) to S.12 has been specifically provided in
the document itself but this part of the document
could not be read in evidence as it could not be
admitted. In view of this, the appeal is allowed. The
judgments of the High Court and that of the lower
appellate Court are set aside and that of the Trial
court is restored. In view of these special
circumstances, there is no order as to costs.”

Learned counsel for the appellant cited another judgment of

Hon’ble Supreme Court in case of Chiranjilal Srilal Goenka Vs.

Jasjit Singh Ors., reported in AIR 2001 SC 266, wherein

the same principle has been elucidated. Relevant Para 21 of the

said judgment is reproduced hereinfra :-

“21. As against this, learned senior counsel for the
respondent Mr. Sanghi submitted that the aforesaid
letter si not to be construed as a deed, but is to be
(13 of 35)
[ CFA-154/1992]

taken as an offer letter and by conduct of adopting
Radheshyam as son, Chiranjilal could not dipose of
the property by will. In our view, this argument is
totally devoid of any substance because if reliance is
required to be placed on the letter for holding that it
restrains Chiranjilal to dispose of the property by will,
then it is required to be read as a document which
limits the rights of Chiranjilal to deal with his property
including the immovable property. Therefore, it would
require registration. In any case, the aforesaid
question is not required to be considered in detail
because we have already arrived at the conclusion
that there is no agreement between the parties before
adoption indicating any contrary intention as
contended.”

Navigating the Court through the statements of various

witnesses, particularly the statement of Jawan Singh Ranawant,

the natural grand-father of the plaintiff, learned counsel for the

appellant argued that their statements are most important and

looking to his relations with the plaintiff and his status in the

Society, they deserve due weightage. Learned counsel for the

appellant submitted that Shri Jawan Singh DW-3 had clearly

stated that on the fateful day of the plaintiff’s adoption,

Chandanmal the ‘Kaamdar’ was not available in the town, whereas

the crucial document Ex.2 had been drawn in the handwriting of

said Chandanmal, purportedly on the same date.

Ms. Borana in light of these facts contended that Shri Jawan

Singh had denied not only the presence of Chandanmal but also

the factum of execution of the agreement – Ex.2. She asserted
(14 of 35)
[ CFA-154/1992]

that these facts and circumstances clearly suggest that the

agreement dated 14.1.1972 (Ex.2) was a forged and fabricated

document.

While resting her arguments, Ms. Rekha Borana informed

that Shri Jawan Singh – natural grand-father of plaintiff was a

man of repute, having held esteemed position of a Judge of

Rajasthan High Court from 29.08.1949 to 10.10.1961. She

submitted that testimony of such revered person, who otherwise

was closely related to the plaintiff should not be disbelieved or

discarded, particularly when he was the person who had drafted

the adoption deed and at whose request, the defendant No.1 was

persuaded to adopt the plaintiff.

Learned counsel for the appellant cited the following

judgments in support of her submissions that variance in

pleadings and proof is not permissible :-

1. AIR 1974 SC 471 (Nagindas Ramdas Vs. Dalpatram Ichharam)

(para 27)

2. 2015 AIR (SCW) 6475 (Ram Niranjan Vs. Sheo Prakash)

(para 23 24)

3. 2011 AIR (SCW) 1061 (Kalyan Singh Chouhan Vs. C.P. Joshi)

(paras 17, 18, 22 and 24)

4. 2003 AIR (SCW) 6005 (Sushil Kumar Vs. Rakesh Kumar)

5. AIR 1974 Raj. 73; Kusum Chand Vs. Kanhaiyalal) (para 6 9)
(15 of 35)
[ CFA-154/1992]

Learned counsel cited judgment of Hon’ble Supreme Court,

reported in AIR 2004 SC 3974 (Ugre Gowda Vs. Nagegowda) in a

bid to contend that mere adoption does not deprive a widow of her

right to dispose of her self acquired property.

Mr. Arpit Bhoot, learned counsel for the respondents

supporting the judgment and decree under consideration

submitted that the appellant – defendant has taken a refuge of an

agreement to sell dated 7.2.1968, which agreement firstly has not

been proved and even if the same is proved, it does not help the

case of the appellant. The reason being, that by virtue of the

execution of the document dated 14.1.1972 (Ex.2), the appellant’s

power of transferring or alienating any of her properties was

captivated or ceased, notwithstanding the prior agreement.

Mr. Bhoot submitted that the appellant has not been able to

cite any judgment or provision of law, which requires a public

notice of the agreement Ex.2. He argued that the agreement Ex.2

has its own effect and the appellant-defendant, pleading or

proving ignorance of such document, cannot claim immunity from

the rigours of law. According to him, the appellant cannot claim

herself to be a bonafide purchaser to claim immunity from the

force of the binding agreement and avoid the decree under

consideration. Responding to the argument of the appellant that

as stated by Anand Kumari in her written statement, the consent

of Subhash Singh had been obtained; Mr. Bhoot argued that such

consent is inconsequential, particularly because Subhash Singh –

the plaintiff was minor at the time of execution of the sale deed
(16 of 35)
[ CFA-154/1992]

and secondly and more importantly, as the agreement (Ex.2)

stipulated the consent of his father Narendra Singh. Even if it is

presumed that the respondent – plaintiff had given consent for

alienation of the ‘Badi’ in question, being ignorant of his rights, the

contentious sale was void and contrary to the agreement dated

14.1.1972, assertively argued Mr. Bhoot.

He added that all the witnesses, may be the plaintiff’s

witnesses or the defendants’ witnesses, admitted the signatures of

Anand Kumari on the agreement dated 14.01.1972 (Ex.2), which

proves the execution of the document Ex.2. In such situation and

in face of the document Ex.2, any sale made by the defendant

No.2 was illegal and contrary to the agreement or the promise she

had made to the plaintiff’s father. Learned counsel for the

respondent cited judgment of Hon’ble Supreme Court in case of

B.T. Govindappa Vs. B. Narasimhaiah, reported in AIR 1991 SC

1969. Claiming parity from the facts and law enunciated therein,

he contended that in present case also, the defendant No.2 Anand

Kumari, having agreed to refrain from selling the property, could

not sell the same and the sale deed executed in favour of the

defendant No.1 (appellant) was clearly in contravention of the

restriction so imposed by Smt. Anand Kumari on herself, vide

Ex.2. Relevant para No.6 of the aforesaid judgment is being

reproduced hereinfra :-

“6. The High Court did not find favour with the
contentions raised on behalf of the appellant. The
High Court held that the sale deed in favour of the
appellant was clearly in contravention of the
(17 of 35)
[ CFA-154/1992]

restriction imposed on Smt. Thimmamma in exhibit D-

1 and as such the sale deed Exhibit P-1 was invalid in
law and conferred no title in the suit property on the
appellant. In our opinion the High Court was right in
taking the aforesaid view on account of the contents
of exhibit D-1. There can be no manner of doubt that
a Hindu woman is the full owner and entitled to deal
with her stridhan property as she likes. She can also
put any restriction or curtailment of her rights by her
own consent and free will in her stridhan property. In
the present case B. Narasamiah came by adoption in
the family of Chikkahanumaiah and as a consequence
of which he lost his right in the property of his natural
father. At the time of adopting B. Narasamaiah not
only Chikkahanumaiah but Smt. Thimmamma also
agreed to grant the right of co-ownership in all the
properties mentioned in the schedule which
admittedly included the stridhan property of Smt.
Thimmamma also. Smt. Thimmamma also put a
restriction on her rights in the immovable properties
detailed in the schedule and agreed that B.
Narasamiah will have complete title after their death
over all the immovable and movable properties and
they will not transfer any property mentioned in the
schedule in future and B. Narasamiah will also not
transfer any property during their lifetime. The above
recitals unmistakably go to show that Smt.
Thimmamma had agreed not to transfer the property
in question and as such the sale made in favour of the
appellant is invalid. Learned counsel for the appellant
was unable to show any infirmity in the Judgment of
the High Court. We are happy to note that on our
suggestion learned counsel for the respondent was
able to persuade the respondent to pay an amount of
(18 of 35)
[ CFA-154/1992]

Rs.15,000/- to the appellant as a gesture of goodwill
within two weeks from today.”

Mr. Arpit Bhoot contended that the appellant had never

questioned the admissibility of the agreement – Ex.2 before the

Trial Court and it is for the first time in the appeal, the question

regarding admissibility of the document has been raised by the

appellant. He contended that the admissibility of the document

cannot be raised at appellate stage, when no such objection was

raised by the concerned party at the time of accepting the

document or leading the same in evidence.

In support of his arguments, Mr. Bhoot cited the judgment

rendered by Hon’ble the Supreme Court in case of Javer Chand

Ors. Vs. Pukhraj Surana, reported in AIR 1961 SC 1655.

He submitted that the above judgment has been followed by

the Hon’ble Apex Court in Shyamal Kumar Roy Vs. Sushil Kumar

Agarwal (2006) 11 SCC 331 and by this Court in the case of

Jagdish Vs. Smt. Deepsikha Garg, reported in 2013 (3) RLW 2562

(Raj.). He added that the judgment passed by the Hon’ble

Supreme Court in Javer Chand Ors., Vs. Pukhraj Surana still

holds the field and the judgment relied upon by the appellant does

not cover this aspect and as such cannot lend any support to the

appellant.

Having argued the case, Mr. Bhoot has filed the written

submissions 2 days later and cited following two judgments to the
(19 of 35)
[ CFA-154/1992]

effect that a judgment passed without considering principle of law,

cannot be treated as precedent :-

(i) Satish Kumar Gupta Vs. State of Haryana, reported in (2017) 4

SCC 760

(ii) State of Uttranchal Vs. Sandeep Kumar Singh, reported in

(2010) 12 SCC 794.

As is evident from the written submissions, these judgments

have been cited by Mr. Bhoot in support of his contention that the

judgment rendered in case of Dina ji (supra), relied upon by

appellant, is of no help to them, as the question of admissibility of

the contentious agreement (Ex.2) had never been put in

question.

Ms. Rekha Borana, canvassing the cause of the appellant in

rejoinder, submitted that without prejudice to her argument that

the agreement Ex.2, was never executed by the defendant No.2 –

Anand Kumari, the agreement dated 14.1.1972 (Ex.2) has to be

read in its entirety. She submitted that if the disputed document

is read as a whole, it transpires that there was no absolute

embargo on her right to alienate the property. She pointed out

that there is a stipulation in the agreement that the defendant

No.2 – Smt. Anand Kumari would be entitled to sell the property,

in case, need so arises, albeit with prior permission. She added

that though there appears to be some confusion, as to whether

the permission of Shri Narendra Singh was required or the

permission of the plaintiff Subhash Singh was to be obtained; yet

as the defendant No.2 herself appeared in the witness box and
(20 of 35)
[ CFA-154/1992]

deposed that the sale deed in question was executed in

furtherance of the prior agreement and that Subhash Singh’s

consent had been obtained, the sale in question could not have

been set aside by the Trial Court dehors the interest of the

appellant, who had bonafidely purchased the land in question for

consideration.

I have heard learned counsels for the parties and perused

the material available on record. It would be apt to deal with the

argument advanced by Ms. Rekha Borana in relation to the

admissibility of the document at first as it goes to the root of the

matter.

There cannot be two opinions that the fulcrum of the

plaintiff’s purported right or the case is the agreement dated

14.01.1972 (Ex.2), said to have been executed by the defendant

No.2 – adoptive mother of the plaintiff, on the date of his

adoption. A look at the said document shows that the defendant

No.2 – adoptive mother of the plaintiff had surrendered,

relinquished or extinguished her rights, not only in her self-

acquired property but also in the property which had devolved on

her after the death of her husband. Such a document vide which

right of a person in an immovable property has been assigned,

extinguished, transferred or relinquished, is required to be

compulsorily registered as mandated vide provisions contained in

Section 17 (1) (b) of the Registration Act. It will not be out of

place to reproduce the provisions contained in Section 17 (1) (b)

of the Registration Act, which read thus :-

(21 of 35)
[ CFA-154/1992]

“17. Documents of which registration is
compulsory. – (1) The following documents shall be
registered, if the property to which they relate is
situate in a district in which, and if they have been
examined on or after the date on which, Act XVI of
1864, or the Indian Registration Act, 1866 (20 of
1866), or the Indian Registration Act, 1871 (8 of
1871), or the Indian Registration Act, 1877 (3 of
1877), or this Act came on comes into force, namely

(a) … … …

(b) other non-testamentary instruments which
purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in
immovable property;

(c) … … …

(d) … … …

(e) … … …”

The judgment of Hon’ble Supreme Court in case of Dina Ji

(supra), reported in AIR 1990 (SC) 1153 squarely governs this

issue and favours the appellant on all fours. In light of the said

judgment, this Court has no hesitation in holding that

notwithstanding the veracity of the document dated 14.01.1972

(Ex.2), such document having effect of assignment,

relinquishment or extinguishment of the plaintiff’s rights in her

immovable property in favour of the plaintiff is required to be

registered and sans such registration, the contentious document

can neither be held valid nor can it be let in evidence. The plaintiff
(22 of 35)
[ CFA-154/1992]

cannot rely upon such document to assert his rights in the

immovable property, as the same is inadmissible in evidence.

Though the appeal of the appellant deserves to succeed on

this count alone, yet this Court deems it appropriate to deal with

other arguments also, so vehemently and vociferously advanced

by the rival counsels.

Adverting to the first argument put forth by learned counsel

for the appellant that the suit in question was incompetent in

absence of substitution of legal representative(s) of Smt. Anand

Kumari, defendant No.2 – the vendor; and also on account of

failure of the plaintiff to bring on record all the legal

representatives of defendant No.1 – Raj Kumari; for which the suit

was liable to be rejected out-rightly; this Court, despite finding

some substance in it, is not inclined to accept the same and reject

the suit as such. The reasons for such view are not far to seek,

firstly because the legal representatives of defendant No.1 – Raj

Kumari – the purchaser have now joined the lis as appellants in

the present appeal and secondly because the defendant No.2 –

vendor – Smt. Anand Kumari has left behind her, only one legal

representative; none other than Subhash Singh, who is already

there as the plaintiff in the suit. In this view of the matter,

technically speaking the arguments advanced on behalf of the

appellant may have some substance, but it cannot be accepted

looking to the peculiar facts of the extant case. There is no

fundamental lacuna in the frame of the suit, for which it should

shatter to the ground.

(23 of 35)
[ CFA-154/1992]

The second argument of Ms Borana has been that the

testimony of the defendant No.2 – Smt. Anand Kumari is

untrustworthy and her admission about the execution of the

agreement dated 14.1.1972 deserves to be discarded. This Court

is of the opinion that the Court should give due weightage to the

deposition of the witnesses, in the witness box which are given in

presence of the Presiding Officer, over the averments made by a

party in his/her pleadings. It is true that Smt. Anand Kumari –

defendant No.2 had specifically denied the execution of the

contentious agreement dated 14.01.1972, however, instead of

maintaining such stance, she took a detour and improvised her

stand by saying that the document bears her signatures, while

maintaining that someone might have misused her blank signed

papers, for creation of the document. She, however, maintained

that the plaintiff was taken into confidence, when the sale deed

was executed on 25.5.1976. A comparative reading of the written

statement of defendant No. 2 and her statement reveals that

there is no significant contradiction between the same and what

turns out from her pleadings and the statement is that the

contentious agreement dated 14.01.1972 (Ex.2) bears her

signatures. Notwithstanding this, the doubt still persists as to

whether, the defendant No.2 had executed the subject agreement

in favour of Narendra Singh – plaintiff’s father, completely

divesting her rights in her self-acquired property as well as the

property belonging to her husband, who had since expired. This

Court has sufficient and valid reasons to infer and hold that the
(24 of 35)
[ CFA-154/1992]

subject agreement dated 14.01.1972 was not executed by

defendant No.2, which are set out herein below.

A perusal of the statement given by DW-3 – Shri Jawan

Singh Ranawat unravels the falsehood in the stand of the plaintiff.

This Court takes cognizance of the fact that Shri Jawan Singh

Ranawat, none other than grand-father of the plaintiff, had

adorned the prestigious seat of this Court from 29.08.1949 to

10.10.1961. In considered opinion of this Court, testimony of a

person having scaled such an esteemed and high position should

be given due weightage, more particularly in facts of the present

case, when he was the natural grand-father of the plaintiff and at

whose request Smt. Anand Kumari – defendant No. 2 had adopted

the plaintiff – Subhash Singh. Though name of said witness was

enumerated in the list of witnesses given by the defendant, yet he

did not come at his own and was summoned by the Court,

pursuant to request/prayer so made by the defendants.

According to the deposition of said witness, he had prepared

the draft of the adoption deed, which came to be written on a

stamp paper brought by Chandanmal – ‘Kamdaar’ and written in

the hands of Vaidhya Hemchand Trivedi. DW-3 deposed that said

‘Kamdaar’ Chandanmal was not present on 14.1.1972, when the

adoption ceremony took place and he had reportedly gone out of

Station. DW-3 had also asserted that neither such agreement was

executed by Anand Kumari nor any information of such agreement

was ever given to him. Shri Jawan Singh maintained that had any

intention or understanding of relinquishing the proprietary right of
(25 of 35)
[ CFA-154/1992]

Anand Kumari made known to him, he would have definitely

incorporated such covenant in the adoption deed itself. It will not

be out of context to reproduce excerpts from his statement, as

they have necessary bearing on the case at hand:-

“c;ku xokg Mh- MCY;w 3 tokuflag jk.kkor

———– eSsa gYQ ls (lkSxU/k) ls dgrk gWwa fd esjk uke toku flag
jk.kkor firk dk uke dqoa j j.k/khj flag dkSe jk.kkor mez 82 o”kZ

————– Bkdqj [kqeku falg dh e`R;q ds 12 fnu ckn
mÙkjkf/kdkjh ds ixMh cka/kus dk nLrwj fd;k tkrk gSA Bkdqj
[kqekuflag ds e`R;q ds X;kjos fnu czsxsfM;j tloarflag us dgk
fd ixM+h cka/kus dk nLrwj fjokt ds vuqlkj fd;k tkuk
pkfg;s eqs dgkA eSaus mudks dgk fd viu fey dj vkuan
dqoj th ds ikl pys vkSj izkFkZuk djs] bl ij eSa] Bkdqj egsUnz
flag o czsxsfM;j lkgc vkSj Hkh ikap lkr fj’rsnkj fey dj
tukus esa vkuandq¡oj ds ikl lqcg 9 cts ukS cts igq¡ps eSaus
bl fo”k; es ckrphr djus ds fy;s czsxsfM;j lkgc dks dg
fn;k Fkk] eSa dqN ugha cksywaxk esus dqN ugha dgk] czsxsfM;j
lkgc us vkuan dqaoj th dks dgk fd fdlh yM+ds dks xksn ys
yks] mls ixM+h ca/kk nks igys rks vkuan dqaoj us dgk fd D;k
t:jr gS A bUdkj dj fn;k ij czsxsfM;j lkgc ds vkxzg
djus ij mUgksua s dgk fd eSa lqHkk”k dks xksn ys ywaxhA

——————

—————- ujsUnz flag us panuey tks ml le; dkenkj dk
dke Hkh djrk Fkk mldksa diklu Hkstk vkSj LVke isij mlh
jkst eaxk fy;k] nwljs jkst lqcg eSaus ujsUnz flag ls iwNk rks
mlus crk;k fd xksnukek fy[kkus ds fy;s LVke panuey ys
(26 of 35)
[ CFA-154/1992]

vk;k gSA fQj eSaus xksnukes dk Mªk¶V fy[k dj ujsUnz flag dks
fn;k vkSj ml dks dgk fd LVkEi ij bl elwns ds eqrkfcd
panuey ls xksnukek fy[kokyksa bl ij ujsUnzflag us eqs
crk;k fd panuey rks ‘kke dks LVkEi isij ysdj Hkksiky
lkxj pyk x;k gSA vkSj ;g dg x;k gS fd oks vkt Hkksiky
lkxj ls ugha vk;sxk ml ds ?kj ij dqN dke gSA eSus dgk
oS|jkt gsepan fosnh th ls fy[kokyksa fQj ujsUnz flag us oS|
jkt gsepan th ls xksnukek fy[kok fy;k tks Ex1 gSA

——————-

———————- ;g crkrk gwa fd ;g xksnukek 14@1@72 dks
fy[kk x;k ml jkst djhc 10 cts czsxsfM;j tloarflag th]
tksjkoj flag luokM+] MkW- fojsUnz flag vkSj Bkdqj egsUnz flag
th vkSj Hkh nl ikap fj’rsnkj fey dj vkuan dqekjh ds ikl
x;s vkSj mudks xksnukes ij nLr[kr djus dks dgk bl ij
mUgksaus xksnukes ij nLr[kr fd;s tks Ex1 ij A to B gSA

———————-

——————- eSusa Ex2 ns[kk ;s dkxt panuey ds gkFk dk
fy[kk gqvk gS D;ksafd ml ij dkfrc ds nLr[kr panuey ds
gS rkjh[k 14-1-72 gSA vkSj xksnukesa dh rkjh[k Hkh 14-1-72 gSA
ml rkjh[k dks panuey dkadjok esa ekStnw ugh Fkk blls Kkr
gksrk gS fd ;s Ex2 ckn esa fy[kk x;k gSA Ex-2 ij Hkh A
to B vkuan dqekjh th ds nLr[kr gSA ————————

———————– Ex-2 ds ckjs esa vkuan dqekjh th us fnukad 14-
1-72 dks eqs dqN Hkh ugha crk;k ;fn eqs crk;k tkrk rks
xksnukes esa ;g Ex2 ds rF; Hkh fy[k nsrk A ————————-

(27 of 35)
[ CFA-154/1992]

ftjg Jh odhy xksjokM+k }kjk

ujsUnz flag vkuan dqekjh ls ckyk ckyk fey dj Ex2
fy[kok;k gks ;g lEHko ugha gks ldrk D;ksa fd ;fn vkuUn
dqoaj th dks fy[kokuk gksrk rks eq ls t:j dgrhA esjh
xokgh xksnukek Ex1 ij ugha gSA panuey dh fy[kkoV eSa
ugha igpkurk gWaw ij Ex2 ij vkuan dqaoj th ds nLr[kr gS
ftUgs eSa igpkurk gw¡A ———————

————————– ujsUnzflag esjk yM+dk gS mlus cVokjs dk nkok
fMLVªhDV tth fprksMx+ es dj j[kk gS esus dksbZ nkok ugha
fd;k gSA ftl esa eSa Hkh ,d izfroknh gwWA lqHkk”k] ujsUnzflag dk
tk;ank yM+dk gS ftl dks Bkdqj [kqeku flag ds uke ij xksn
fy;k x;k gSA —————–^^

Upon carefully scanning the record, the suit as well as the

other connected cases, this Court could not lay hands on the

original agreement dated 14.01.1972, which is the basic bone of

contention, however a photocopy thereof is available and the

same had been exhibited. Be that as it may, since objection to

this effect had not been raised by any of the parties, while

tendering the same in evidence, this Court does not deem it

appropriate to take exception to this.

Be that as it may, in wake of the pleadings of the parties,

testimony of Anand Kumari – the purported executor of such

document and statement of DW-3 – Jawan Singh, this Court is of
(28 of 35)
[ CFA-154/1992]

the opinion that the execution of the document dated 14.1.1972

itself is in realm of doubt or suspicion.

Now, I proceed to deal with the Judgments cited by the rival

counsels at Bar. The first Judgment of Hon’ble the Supreme Court

cited by Ms. Borana in case of Ugre Gowda, AIR 2004 SC 3974,

that mere adoption does not deprive a widow of her right to

dispose of her self-acquired property, is of little avail to the

appellants in the present facts. It is to be noticed that the

plaintiff’s case is not premised on the factum of adoption alone,

but the same had been projected on the document of even date,

i.e. 14.1.1972, vide which, the defendant No.2 – Anand Kumari

had seemingly restrained herself from alienating or transferring

her own properties, besides the properties of her husband duly

vested in her. It has not been the case of the plaintiff that as a

result of the adoption simpliciter, the defendant No.2 was stifled

of her right and authority to alienate the property; the plaintiff’s

case has hinged on the agreement (Ex.2). As such, this judgment

of Hon’ble the Supreme Court is hardly of any help to the

appellant.

Mr. Arpit Bhoot zealously supporting the judgment and

decree oppugned by the appellant contended that the appellant’s

reliance on the agreement to sell dated 7.2.1968 is a sham.

Having considered the pleadings of the parties, statements

and arguments advanced by the appellant, this Court finds that

the appellants have not based their right upon the agreement to

sell dated 7.2.1968 but have disclosed the same as an event,
(29 of 35)
[ CFA-154/1992]

leading to the execution of sale deed. The agreement of 1968 has

been referred to, with a view to canvass that the sale deed dated

25.5.1976 was a culmination of a prior agreement entered into

between the parties, even before the adoption took place. Be that

as it may, since the impugned registered sale deed conveying the

property to the defendant No.1 has been executed, the agreement

to sell dated 7.2.1968 is insignificant or inconsequential and the

same is relevant only for the purpose of complete recital of facts

of the case.

In response to the argument of the appellant that as the

plaintiff had not given any public notice of the subject agreement

dated 14.1.1972 (Ex.2), the purchaser’s right cannot be effected;

Mr. Bhoot learned counsel for the respondent argued that there is

neither any such requirement of law, nor the appellants have cited

any provision of law or judgment in support of such contention.

With reference to the contention regarding public notice, this

Court is of the view that though there appears to be no statutory

requirement, contemplating issuance of public notice of such

agreement, yet the defendant No.1 – appellant herein has proved

that they had no information about the execution of the

agreement dated 14.01.1972 (Ex.2). The appellant – defendant

No.1 was, therefore, a bonafide purchaser, having purchased the

property relying upon title document and the assertion made by

the defendant No.2 – Anand Kumari.

The following provisions of the Transfer of Property Act, 1882

protects the interest of the purchaser in the case like this:-

(30 of 35)
[ CFA-154/1992]

“Section 55. Rights and liabilities of buyer and
seller. – In the absence of a contract to the contrary,
the buyer and the seller of immovable property
respectively are subject to the liabilities, and have the
rights, mentioned in the rules next following, or such
of them as are applicable to the property sold:

(1) The seller is bound –

(a) to disclose to the buyer any material
defect in the property or in the seller’s
title thereto of which the seller is, and
the buyer is not, aware, and which the
buyer could not with ordinary care
discover;

…………… …………. …………….

(c) to answer to the best of his information all
relevant questions put to him by the buyer
in respect to the property or the title
thereto;

(2) The seller shall be deemed to contract with
the buyer that the interest which the seller
professes to transfer to the buyer subsists and
that he has power to transfer the same:

Provided that, where the sale is made by a
person in a fiduciary character, he shall be deemed to
contract with the buyer that the seller has done no
act whereby the property is incumbered or whereby
he is hindered from transferring it.”

If the plaintiff wanted to assert that the defendant No.1 had

the information or intimation about the execution of the

agreement (Ex.2), the burden to prove such fact lies upon the

plaintiff. The plaintiff, having failed to discharge his burden and
(31 of 35)
[ CFA-154/1992]

bring on record the fact that the defendant No.1 had information

or knowledge about the agreement dated 14.01.1972, the

defendant No.1 remains a bonafide purchaser and her rights

cannot be given a go-by in the guise of a purported agreement,

the veracity, authenticity and admissibility whereof in evidence is

seriously questionable.

Hence, even if it is presumed that Anand Kumari had

executed the agreement (Ex.2), it was her duty to disclose this

fact to the buyer, defendant No.1 and on her failure, rights of

defendant No.1 or the appellant cannot be put to peril.

Mr. Bhoot’s argument that all the witnesses, including Anand

Kumari had admitted the signatures on the contentious agreement

dated 14.1.1972, is untenable in the eye of law. The Court is

required to weigh the evidence of the parties, keeping in view the

other antecedent circumstances, such as pleadings and testimony

of other witnesses. The fact that the signatures on the

contentious document have been proved to be of Anand Kumari, is

by itself not sufficient to prove that such document was at all

executed, on the date of adoption of the plaintiff Subhash Singh.

It is pertinent that the Defendant No.2, Anand Kumari herself had

not admitted to have executed the document in question and she

had only admitted that it bears her signatures. The fact that two

documents of same date were prepared and written by different

persons, in presence of different witnesses, and there being

absolutely no reference of the other document, in these two
(32 of 35)
[ CFA-154/1992]

documents is enough to infer that the other agreement (Ex.2) had

been concocted subsequently.

The sheet-anchor of the argument of Mr. Bhoot has been;

the judgment of Hon’ble Supreme Court in the case of B.T.

Govindappa, AIR 1991 (SC) 1969. A perusal of the said judgment,

more particularly the facts of this case reveals that the adoption

deed itself in the said case, contained a clause, contemplating that

the adoptive mother would not sell, transfer or alienate the

property belonging to her and her husband and more particularly

the adoption deed in question was a registered document.

Whereas in the present case, neither the adoption deed was

registered nor the same contained such a clause; as against this,

another document of the even date was brought to fore to assert

that the adoptive mother had volunteered to surrender or

relinquish her right of dealing with the properties. These two

crucial facts completely turn the table in favour of the appellant.

Though the adoption deed had been executed on 14.1.1972,

which has been admitted by all the parties, no stipulation

regarding restraint on mother’s right to dispose of the property

was contained in it; and such stipulation had been introduced vide

another agreement dated 14.01.1972 (Ex.2). Even if, the

existence of Exhibit 2 is accepted, admitted or proved, the same

could not have been done, except by way of a registered

document, as this kind of covenant amounts to cessation or

relinquishment of rights to transfer an immoveable property.

(33 of 35)
[ CFA-154/1992]

Much was argued by Mr. Bhoot regarding the question of

admissibility of the document Ex.2 by contending that no such

question regarding the admissibility of the document had been

raised by the appellant. A perusal of the record reveals that the

appellant – defendant No.1 had raised an objection albeit

regarding non-payment of requisite stamp duty, when the

disputed document (Ex.2) was tendered in the evidence; at such

point, the plaintiff had undertaken to pay the stamp duty, if

payable and on such assurance, the document was admitted in

evidence. Though the objection of the defendant No.2 was only in

relation to payment of stamp duty and not about registration, yet

it is pertinent that requirement of raising objection at the time of

tendering the document in evidence, and not after-wards; is

confined only about the objection of stamp duty and such principle

is not applicable, when it comes to opposing the admissibility of

the document, for want of registration.

Before dealing with this question, it is to be noticed that the

appellant has taken this ground, specifically in their memo of

appeal and the same has been the principal argument from

appellants’ side, during the course of hearing. Otherwise also,

the question of registration of document is a fundamental

question, which goes to the root of the matter and hence, the

same can be permitted to be raised at any stage. There is no

provision in the Registration Act, which restrict the power of the

opposite party to raise such plea of requirement of registration at

a subsequent stage, in juxtaposition to Section 36 of the Indian
(34 of 35)
[ CFA-154/1992]

Stamp Act, 1899 or Section 40 of the Rajasthan Stamp Act,

1998.

All the judgments cited by Mr. Bhoot in relation to his plea

that the objection of admissibility cannot be raised at a later stage

are cases where an objection of admissibility of document at a

later stage was raised regarding non-payment or deficit payment

of stamp duty. Hence, these judgments are not applicable in the

present case.

The act of conveying an immoveable property by any mode –

sale, gift or relinquishment, can be done only by way of a

registered document. The absence of registration hits at the very

root of the document and the same can neither be led in evidence,

nor any rights flowing therefrom can be claimed or asserted.

The proviso to Section 49 of Registration Act also does not

come to the rescue of the plaintiff, as the purpose for which the

contentious covenant has been relied or placed on record cannot

be said to be a collateral purpose, by any stretch of imagination.

Needless to reiterate that the agreement dated 14.01.1972 has

been the foundational fact or sole premise for asserting the

plaintiff’s title or property right in the disputed property.

Catena of other decisions, cited by Mr. Bhoot on the

principles of precedents, are not applicable in the facts of the

present case and the same have been cited only with an anxiety

to contend that judgment of Hon’ble Supreme Court rendered in

case of Dina ji (supra) is per-incuriam, as the question regarding

the stage at which such question can be raised, had not been
(35 of 35)
[ CFA-154/1992]

considered. In wake of the finding and settled principle that the

question of registration being a basic question, can be raised at

any stage, the judgments cited by Mr. Bhoot are of no aid to him.

As a result of the discussions foregoing, this Court is of the

considered opinion that the appeal of the appellant deserves to be

and is hereby allowed. The judgment and decree dated

20.08.1992 passed in Civil Original Suit No.104/1997 in the

matter of Subhash Singh Vs. Raj Kumari Ors., is quashed and

set aside. The suit filed by plaintiff is dismissed.

Following the judgment aforesaid, all the appeals between

the common parties involving identical facts; pleadings;

statement; and questions of law are allowed and corresponding

judgment and decree impugned therein are quashed and set

aside. The suit in each case is dismissed.

Parties are left to bear their own costs.

(DINESH MEHTA), J.

Arun, PS

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