R. S. A. No. 1038 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1038 of 2009 Date of Decision : August 24, 2010 Meer Singh .... Appellant Vs. Suresh Kumar @ Jagdish and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Anil Ghangas, Advocate for the petitioners. Mr. Ajay Kumar Gupta, Advocate for respondents no.1, 2 and 4. Respondents no.3, 5 and 6 ex-parte. * * * L. N. MITTAL, J. (Oral) : Plaintiff Meer Singh, having failed in both the courts below, has filed the instant second appeal. The dispute relates to inheritance of suit land from Dharam Chand, who died on 04.08.1990. Plaintiff and defendants no.3 to 6 are real brothers of Dharam Chand who allegedly died issueless. Plaintiff's case is that he and defendants no.3 to 6 inherited the suit land, being brothers of R. S. A. No. 1038 of 2009 2 Dharam Chand. The plaintiff challenged registered adoption deed dated 08.06.1990 being null and void. The said adoption deed relates to alleged adoption of defendant-respondent no.1 Suresh Kumar @ Jagdish by Dharam Chand. The plaintiff alleged that no ceremony of adoption had taken place and the adoption deed is invalid. Mutation sanctioned on its basis on 21.08.1990 has also been challenged. Defendant no.1 alleged that he had been validly adopted by Dharam Chand and in this regard, adoption deed dated 08.06.1990 was executed and therefore, defendant no.1 alone inherited the suit land being adopted son of Dharam Chand and is owner in possession of the suit land. Other allegations of the plaintiff were controverted. Learned Additional Civil Judge (Senior Division), Charkhi Dadri, vide judgment and decree dated 02.03.2005, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge (Fast Track Court), Bhiwani, vide judgment and decree dated 28.11.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that defendant no.1 was the only son of his natural parents (defendants no.2 and 4) and therefore, he could not be given in adoption. The contention is untenable R. S. A. No. 1038 of 2009 3 because defendants no.2 and 4 also had another son Naresh Kumar, who died subsequently. Birth certificate of said Naresh Kumar has also been produced in evidence. The contention raised, thus, is factually incorrect and untenable. Learned counsel for the appellant vehemently contended that no ceremony of giving and taking in adoption was held and therefore, there was no valid adoption. By raising the same contention at the time of motion hearing, notice of motion was got issued. Learned counsel for the appellant relied on judgment of Hon'ble Supreme Court in the case of M. Gurudas and others vs. Rasaranjan and others reported as AIR 2006 Supreme Court 3275, wherein it was held that performance of `datta homam' was imperative, subject to just exceptions. Case related to Karnataka. Reliance has also been placed on a judgment of Madras High Court in the case of M. Srinivasan vs. John Bentic (died) and others reported as AIR 1989 Madras 334, wherein it was held that in the absence of evidence of giving and taking in adoption, adoption cannot be held proved. In judgment of this Court namely Dhanno wd/o Balbir Singh vs. Tuhi Ram (died) reptd. by his LRs reported as 1996 (2) P. L. R. 276, it was held that presumption attaching to registered adoption deed under Section 16 of the Hindu Adoption and Maintenance Act, 1956 (in short – the Act) is rebuttable. Learned counsel for the appellant, referring to statements of various witnesses, contended that there are many contradictions in their R. S. A. No. 1038 of 2009 4 statements and Mahabir (DW-4) and Hari Singh (DW-3) have stated that no adoption ceremony took place in their presence. On the other hand, learned counsel for the respondents contended that registered adoption deed has been proved and in view of Section 16 of the Act, it has to be presumed that adoption was made in compliance with the provisions of the Act. It was contended that said presumption has not been rebutted. Learned counsel for the respondents also contended that defendants' witnesses have stated that ceremony of giving and taking in adoption had taken place. Learned counsel for the respondents cited judgment of this Court in Jagjit Singh vs. Pritam Singh and others reported as 1994 (1) HLR 265, wherein it was held that if adoption had taken place several years ago, non-production of account of `shagun' cannot be considered as a ground to discard the testimony of witnesses regarding adoption. Reliance has also been placed on judgment of Karnataka High Court in Veerabhadrayya R. Hiremath (D) by LRs vs. Irayya A. F. Basayya Hiremath reported as 2006 (2) Latest Judicial Reports 238, wherein it was held that a stranger cannot challenge adoption by filing suit. Reference was also made to another judgment of this Court namely Lakhmi Chand (Dead) through LRs vs. Tara Chand reported as 2003 (2) L. J. R. 624, wherein it was held that a collateral without any reversionary right in the property of adopter has no locus standi to challenge the adoption. It was also held that registered adoption deed raises R. S. A. No. 1038 of 2009 5 presumption of complying with conditions of Section 11 of the Act. I have carefully considered the rival contentions. In so far as the contention that there is no evidence of ceremony of giving and taking defendant no.1 in adoption is concerned, the contention is factually incorrect. Both parents of defendant no.1 stepped into witness box and deposed that necessary ceremony had taken place before the execution of adoption deed. As regards contradictions in the statements of defendants' witnesses, the same cannot be made a ground for setting aside the concurrent finding of fact recorded by the courts below. Moreover, it was pointed out that Narain Pardhan (DW-1) stated that he had scribed the adoption deed at Charkhi Dadri, whereas other witnesses have stated that adoption deed had been scribed at Badhra. However, it is not a contradiction, much less a material one because Narain Pardhan was examined on 06.08.2004 i.e. more than 14 years after the adoption deed had been scribed by him on 03.06.1990. In addition to it, Narain Pardhan was aged 86 years at the time of appearing in the witness box. Consequently, he could not be expected to remember the aforesaid detail after such a long period at such old age. Moreover, he was even unable to read the copy of adoption deed. He also could not tell where he had scribed the adoption deed. So, his testimony that he had scribed it at Charkhi Dadri cannot be said to be sufficient to contradict the other witnesses that the deed was scribed at Badhra. R. S. A. No. 1038 of 2009 6 Learned counsel for the appellant contended that according to Piyare Lal, adoption ceremony had taken place on the date of scribing adoption deed i. e. 03.06.1990, although the adoption deed was got registered on 08.06.1990. It was pointed out that stamp paper for the adoption deed had been purchased on 02.06.1990 and therefore, the testimony of Piyare Lal that adoption ceremony took place on 03.06.1990 cannot be accepted. The contention is devoid of merit. All preparations for adoption must have been made after Dharam Chand agreed to adopt defendant no.1. Consequently, stamp paper was also purchased on 02.06.1990. The actual adoption ceremony took place on 03.06.1990 and thereafter, adoption deed was got scribed. The adoption deed was later on got registered during the lifetime of Dharam Chand. Section 16 of the Act raises presumption in the case of registered adoption deed that the adoption was made in compliance with all conditions prescribed in the Act. The said presumption has not been rebutted by the plaintiff by leading any cogent evidence. It was not for the defendants to lead evidence of the adoption in the event of presumption arising under Section 16 of the Act. However, in spite thereof, defendants have led evidence of adoption ceremony as well. Learned counsel for the appellant contended that in school leaving certificate Ex.PW-1/F, defendant no.1 was depicted to be son of his natural father Piyare Lal and not adopted son of his adoptive father Dharam Chand (since deceased). This contention is although attractive, but is not R. S. A. No. 1038 of 2009 7 sufficient to allow the appeal. The said school leaving certificate has not been proved by examining any witness from the school. Moreover, Dharam Chand – adoptive father had died on 04.08.1990 i.e. just two months after the adoption. Consequently, if thereafter, Piyare Lal natural father, who might be looking after defendant no.1, mentioned his own name as father of defendant no.1 at the time of school admission, it would not undo the adoption of defendant no.1 by Dharam Chand. Learned counsel for the appellant also referred to Ration Card (Mark-B) depicting defendant no.1 to be son of his natural father Piyare Lal. However, this document has also not been proved and cannot be taken into consideration. Reference was also made to document Mark-C, stated to be affidavit of defendant no.2 – natural mother of defendant no.1, wherein she mentioned defendant no.1 to be her own son. However, this document has also not been proved and therefore, cannot be taken into consideration. Moreover, defendant no.2, while appearing in the witness box, was not even confronted with this document, as stated by learned counsel for the appellant and for this added reason as well, this document cannot be looked into. There is concurrent finding of fact by both the courts below that defendant no.1 had been adopted by Dharam Chand. The said finding is based on appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. Evidence is not R. S. A. No. 1038 of 2009 8 required to be appreciated again in second appeal. However, even after appreciating the evidence again, on the basis of contentions raised by counsel for the appellant, a different finding cannot be arrived at. The finding recorded by the courts below is fully justified by evidence and supported by cogent reasons. Lower appellate court is the final court of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be devoid of any merit and is accordingly dismissed. August 24, 2010 ( L. N. MITTAL ) monika JUDGE