F.A.O. No. 2076 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O. No. 2076 of 2011 Date of Decision: April 18, 2011 Dr. Jaswinder Singh Bains …..Appellant. Vs. General Public and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Aman Bahri, Advocate for the appellant. Mr.Jatinder Kumar, Advocate for respondents No.2 and 3. -.- M.M.S. BEDI, J. Vide impugned order dated January 27, 2011, Civil Judge exercising the powers of Guardian Judge has returned the petition filed by the petitioner under Section 7 of the Guardian and Wards Act, (for short ‘the Act’), for declaring the petitioner as guardian of minor child Baby Simran adopted by the appellant vide registered adoption deed dated October 30, 2009 on the ground that the Court at Patiala lacks territorial jurisdiction to F.A.O. No. 2076 of 2011 [2] entertain the petition, disbelieving that the minor child is residing at Patiala. As per the pleadings of petition under Section 7 of the Act, appellant and his wife have adopted a two months’ old child, namely, Simran from her natural parents, respondents No.2 and 3 pursuant to a ceremony of giving and taking vide registered adoption deed dated October 30, 2009. The appellant has pleaded that he had to go to Canada as such he had left the adopted child in the house of his real sister Amarjit Kaur Heer, resident of Patiala Cantt. till the completion of the legal formalities. It is specifically pleaded in para 9 that the girl child is in the care of said Amarjit Kaur and is staying with her at Patiala. The biological parents, respondents No.2 and 3, are residents of Ropar. In para 22 it is pleaded that the minor child Simran being residing in Patiala, the Court at Patiala has got territorial jurisdiction. Neither respondents No.2 and 3, the natural parents have raised any objection nor any other member from the general public has objected to the declaration sought for by the appellant. The statement of Amarjit Kaur in the shape of affidavit PW2/A has been recorded regarding the necessary formalities of adoption and regarding the adopted child staying with Amarjit Kaur at Patiala. Ashok Kumar, natural father has admitted the adoption as well as the registered adoption deed. Harmesh Devi, the natural mother, has also appeared as a witness and produced affidavit RW2/A. The adopted mother has produced her affidavit PW3/A to prove the adoption. There is no dispute that the adopted parents are residents of Canada and Amarjit Kaur, sister of petitioner is resident of Patiala. Section 9 of the Act reads as follows:- F.A.O. No. 2076 of 2011 [3] “Section 9:- Court having jurisdiction to entertain application:- (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect to the guardianship of the minor it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) if an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.” This Court in Parshant Chanana Vs. Mrs.Seema alias Priya, 2010 (1) RCR (Civil) 400 has, in context to the language of Section 9 of the Act held that any application filed under the Guardian Act in respect of a person of a minor is to be filed at a Court under whose territorial jurisdiction, the minor “ordinarily resides”. If the application relates to the property of the minor there are two forums and the applicant may choose any of them, namely, the Court under whose territorial jurisdiction, the F.A.O. No. 2076 of 2011 [4] minor ordinarily resides or under whose territorial jurisdiction minor has property. The territorial jurisdiction of a Court is determined on the basis of the averments made in the plaint. As observed hereinbefore, in the present case it stands established from the statement of Amarjit Kaur, who appears as a witness, that the minor is residing in Patiala. So far as the natural parents are concerned, they have ceased to be the guardians after the execution of the registered adoption deed. According to Section 16 of the Hindu Adoptions and Maintenance Act, 1956, whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. A registered document pertaining to the adoption of Simran has been produced before the Court to which the presumption of authenticity is attached. The Guardian Judge seems to have gave a presumptive observation that it is not believable that the minor child is not staying at Patiala with the sister of appellant. The said presumption is contrary to the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 which deals with the effects of adoption. According to Section 12 of the Act, an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. Relevant portion of F.A.O. No. 2076 of 2011 [5] Section 12 is reproduced as under:- “Section 12. Effects of Adoption:- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.” In view of Section 16 and Section 12 of the Hindu Adoptions and Maintenance Act, there is no reasons for the learned Guardian Judge to disbelieve that the minor Child Simran who has now ceased to have any ties with the natural parents is supposed to be connected with the adoptive family after the date of adoption which is prima facie established in view of the presumption under Section 16 attached to the registered adoption deed. The judgment of the Guardian Judge returning the petition is thus not sustainable being unreasonable as such the same is set aside. The parties are directed to appear before the Guardian Judge, Patiala, exercising powers under High Court notification No. 106/492/X.VA 13 dated April 1, 1975 on May 7, 2011 for adjudication of the petition in accordance with law on merits. As the entire evidence has already been produced by the parties the said Court is directed to dispose of the petition within a period of one month after May 7, 2011 to reduce the sufferance of the minor child whose relationship with the natural parents stand severed but has not been able to join the natural parents on account of the delay having been caused in the F.A.O. No. 2076 of 2011 [6] declaration of the petitioner and respondent No.4 being the adopted parents of the minor child. Disposed of. April 18, 2011 (M.M.S.BEDI) sanjay JUDGE