IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2901 of 2007(O&M) Date of Decision : February 09, 2010 Ajit Kumar and others ....Appellants Versus Rakesh Rani and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. G.S.Gandhi, Advocate for the appellants. Mr. Puneet Jindal, Advocate for respondents No.1 and 2. T.P.S. MANN, J. Suit for declaration to the effect that the adoption deed dated 26.11.1991 executed by Sudesh Kumari Sehgal-sister of the plaintiff and defendants No.1 to 8 in respect of adoption by her of Tarun Kumar-defendant No.9 was null and void, wrong, illegal and invalid, and, as such not binding upon the plaintiff, who was entitled to inherit the property of Sudesh Kumari Sehgal-since deceased, to the extent of 1/9th share alongwith defendants No. 1 to 8, and for permanent injunction so as to restrain defendant No.9 from taking benefits of the estate of Sudesh Kumari Sehgal as her adopted son, was dismissed by Civil Judge (Junior Division), Jalandhar, on 30.8.2006. Aggrieved of the same, defendants No.1 to 7 filed the first appeal and, similarly, legal RSA No. 2901 of 2007(O&M) -2- representatives of the plaintiff also filed an appeal. Both the appeals were, however, dismissed by Additional District Judge (Adhoc), Jalandhar on 25.7.2007. Still not satisfied, defendants No.1 to 7 are before this Court in the second appeal filed under Section 100 C.P.C. According to the plaintiff, Sudesh Kumari Sehgal, his sister as also of defendants No.1 to 8, died on 21.1.1996 as a spinster. During her lifetime, she preferred an application under Section 18 of the Land Acquisition Act alongwith other co-sharers, i.e. the plaintiff and defendants No.1 to 8. After her death, Tarun Kumar-defendant No.9 moved an application through his natural father Jiwan Pal for being brought on record as her legal representative asserting that he had been adopted by Sudesh Kumari Sehgal as her son. Infact, no adoption of Tarun Kumar took place, as alleged. The adoption deed was false, fabricated and fake document, having been prepared in order to grab the property left by Sudesh Kumari Sehgal. The said deed was not a legal document, and, therefore not binding upon the plaintiff. The share of Sudesh Kumari Sehgal, who died unmarried, fell to the plaintiff and defendants No.1 to 8 by way of natural succession, each having 1/9th share in her entire property. Hence, the suit. Defendants No.1 to 7 filed a joint written statement and supported the claim of the plaintiff. Defendants No.8 and 9 filed a written statement wherein, besides taking various preliminary objections, they pleaded that defendant No.9 was adopted by Sudesh RSA No. 2901 of 2007(O&M) -3- Kumari Sehgal by a registered adoption deed dated 26.11.1991 and this fact was well within the knowledge of the brothers and sisters of Sudesh Kumari Sehgal and they never objected to the same during her lifetime. Only after her death, they had challenged the adoption in order to grab her property. Defendant No.9, being the adopted son of deceased Sudesh Kumari Sehgal, was entitled to the share of her property as absolute owner thereof and none else had any connection with the same. Learned Courts below held that the plaintiff failed to prove that the adoption deed dated 26.11.1991 was illegal, null or void, and, hence not entitled to the declaration prayed for. On the other hand, defendant No.9, being the adopted son of deceased Sudesh Kumari Sehgal, was entitled to the benefits of the estate of Sudesh Kumari Sehgal. Upon notice in the present appeal, respondents No.1 and 2, who are the only contesting respondents and who were arrayed as defendants No.8 and 9, respectively, in the suit, stand served and represented. Alongwith the second appeal, the appellants filed C.M. No. 8064-C of 2007 under Order XLI Rule 27 read with Section 151 CPC for producing on record certificate dated 20.9.1996 issued by Central Board of Secondary Education, by way of additional evidence. Similarly, the appellants also filed C.M. No. 617-C of 2009 under Order RSA No. 2901 of 2007(O&M) -4- XLI Rule 27 read with Section 151 CPC for placing on record the following documents as additional evidence, as according to them, these documents had come in the knowledge and possession of the appellants after the filing of the appeal but were very much relevant for the adjudication of the same:- i) Application form for enrollment in the Navy; ii)Migration certificate; iii)Certificate dated 20.9.1996 issued by Central Board of Secondary Education; iv)Letter dated 1.6.2006 issued by Additional Deputy Commissioner granting approval to the Service Contract; and v) The Service Contract. Short reply has been filed by respondent No.1 to both the aforesaid applications, opposing the prayer made by the appellants therein and for their dismissal with heavy and punitive costs. The main challenge of the appellants to the adoption deed is that Tarun Kumar could be given in adoption either by his father Jiwan Pal or by mother Raksha Rani but both of them together could not have given their son in adoption. In this regard, learned counsel for the appellants has referred to the provisions of Section 9(1) of the Hindu Adoptions and Maintenance Act, 1956 which read as under:- “9. Persons capable of giving in adoption: No person except the father or mother or the guardian of a child shall have the capacity to give the child in RSA No. 2901 of 2007(O&M) -5- adoption.” The Court does not agree with the proposition of law as enunciated by learned counsel for the appellants. Both the father and mother of a child have been given the capacity to give their child in adoption. There is no restriction on them not to jointly exercise the said capacity. At the same time, anyone of them can independently give the child in adoption. In support of their plea that no valid adoption of Tarun Kumar by deceased Sudesh Kumari Sehgal took place, the plaintiff and defendants No.1 to 7 relied upon application for issuance of ration card filed by Jiwan Pal Ex.P1 and voter’s list Ex.P3, wherein Tarun Kumar was shown as son of Jiwan Pal. Reliance was also placed upon application for issuance of ration card filed by Sudesh Kumari Sehgal Ex.P2 wherein though Tarun Kumar was mentioned as one of the family members of Sudesh Kumari Sehgal yet he was described there as her nephew and not as her adopted son. In order to prove the application for issuance of ration cards Exs.P1 and P2, the plaintiff had examined PW2 Bhagwant Singh, Inspector, Foods and Supplies, who deposed that the ration cards were issued in the year 1992 and the forms were not filed in his presence. Even no dates were mentioned when those forms were submitted. Voter list Ex.P3 was prepared in the year 1996. It has come in evidence that after the death of Sudesh Kumari Sehgal on 21.1.1996, Tarun Kumar started residing with his natural parents. In the RSA No. 2901 of 2007(O&M) -6- year 1996, the plaintiff and defendants No.1 to 7 had entered the room where Sudesh Kumari Sehgal and Tarun Kumar used to reside, destroyed the documents kept there and gave beatings to Tarun Kumar as a result of which he had no other option but to leave that house and started living with his natural parents. That explains as to why his name figured in the voter’s list being one of the family members of Jiwan Lal. On the other hand, there is evidence of adoption by way of adoption deed Ex.DW5/1. Raksha Rani, natural mother of Tarun Kumar, was a signatory to the said deed. Ram Murti Chadha was one of the attesting witnesses and after his death, his son Naveen Chadha, Advocate, appeared as DW5 and identified the signatures of his father on the adoption deed. Mahesh Kumar, Deed Writer was also produced by defendants No. 8 and 9 in support of their case, who identified the signatures of his brother Rajesh Kumar, who had actually scribed the adoption deed. The plaintiff and defendants No.1 to 7 pleaded that the adoption deed was the result of fraud and, therefore, illegal, null and void. However, they brought no evidence on record to substantiate their plea. On the other hand, the adoption deed Ex.DW5/1 was a registered document and, therefore, the Court can draw the presumption that the adoption had been made in compliance of the provisions of the Hindu Adoption and Maintenance Act. RSA No. 2901 of 2007(O&M) -7- Apart from adoption deed Ex.DW5/1, defendants No. 8 and 9 relied upon letter Ex.D1 written by the Deputy Commissioner, Jalandhar to the Head Master, Government High School, Alawalpur in which school Sudesh Kumari Sehgal used to teach. It was stated therein that Tarun Kumar was the only heir of deceased Sudesh Kumari Sehgal as per record. In the school record Ex.D2 of Montgomery Guru Nanak Public School, Jalandhar City, where Tarun Kumar was a student, necessary changes had been made so as to show Sudesh Kumari Sehgal as his adoptive mother. Similarly, in school leaving certificate Ex.D3 Tarun Kumar was again described as adopted son of Sudesh Kumari Sehgal. Again in Ex.D5 and D7 to D17, Tarun Kumar was recognized as adopted son of Sudesh Kumari Sehgal. Said Tarun Kumar was the nominee of Sudesh Kumari Sehgal in her insurance policy. Even mutation had been sanctioned in his name regarding the estate of Sudesh Kumari Sehgal. The certificate dated 20.9.1996 as well as other documents sought to be produced by the appellants by way of additional evidence are of no help to the plaintiff and defendants No. 1 to 7 to establish that Tarun Kumar had never been adopted by Sudesh Kumari Sehgal during her life time. It is the admitted case of the parties that Sudesh Kumari Sehgal had died on 21.1.1996. It has also come in evidence, as mentioned above, that after the death of Sudesh Kumari Sehgal, the plaintiff and defendants No. 1 to 7 had entered the room where Sudesh RSA No. 2901 of 2007(O&M) -8- Kumari Sehgal and Tarun Kumar had been residing. Said Tarun Kumar was given beatings as a result of which he had no other option but to leave the said house and start living with his natural parents. Therefore, all these documents, even if taken on record by way of additional evidence would not help the plaintiff and defendants No. 1 to 7 to succeed in the present second appeal. The concurrent findings of facts arrived at by the Courts below are based upon proper appreciation of the evidence available on the record. Therefore, it cannot be said that there is any illegality or perversity in the judgments passed by the Courts below. None of the substantial questions of law, as framed by the appellants, arises for determination. Accordingly, the appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) February 09, 2010 JUDGE ajay-1