RSA No.1329 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.1329 of 2010 (O&M) DATE OF DECISION: 20 th APRIL, 2011 Hukam Chand & another .... Appellants Versus Aruna Devi & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. J. P. Sharma, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Plaintiffs No.1 and 2 have filed the instant second appeal after remaining unsuccessful in both the Courts below. Bhagwana had three sons i.e. Hukam Chand-plaintiff No.1, Devender-Plaintiff No.2 and Tirlok Chand since deceased (predecessor of defendants i.e. respondents No.1 to 3) and three daughters namely Parkash Bai, Ompati Bai and Nirmal Bai plaintiffs No.3 to 5. Bhagwana died on 31.12.1982. His wife Surasti Devi was also alive at that time. His inheritance mutation No.1936 dated 31.05.1983 was sanctioned in favour of his aforesaid three sons, three daughters and wife in equal shares i.e. 1/7th share each. Tirlok Chand also died in the year 1990. His inheritance mutation No.2159 dated 30.10.1991 regarding his 1/7th share in the suit land was sanctioned in favour of defendants. Bhagwana was original owner of the entire suit land. In the instant suit, plaintiffs have alleged that Tirlok Chand was adopted on 04.03.1970 by Prabhu Dayal and, therefore, inheritance mutation of RSA No.1329 of 2010 (O&M) -2- Bhagwana to the extent of 1/7th share in favour of Tirlok Chand is illegal and null and void and subsequent inheritance mutation of Tirlok Chand in favour of defendants regarding the same is also illegal and null and void. Plaintiffs alleged that they alone are owners in possession of the entire suit land. Defendants contested the suit and denied the alleged adoption of Tirlok Chand by Prabhu Dayal. The defendants pleaded that Tirlok Chand inherited the property of Prabhu Dayal vide registered Will dated 27.03.1970. Tirlok Chand was never adopted by Prabhu Dayal. Inheritance mutation of Bhagwana was rightly sanctioned in favour of Tirlok Chand to the extent of 1/7th share along with other legal heirs. Defendants have also inherited share from Surasti and now defendants are owners in possession to the extent of 1/6th share in the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Mahendergarh vide judgment and decree dated 20.02.2007 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs No.1 and 2 has also been dismissed by learned Additional District Judge, Narnaul vide judgment and decree dated 24.12.2009. Feeling aggrieved, plaintiffs No.1 and 2 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The central dispute in the lis is regarding alleged adoption of Tirlok Chand by Prabhu Dayal. The plaintiffs have, however, miserably failed to prove the same. According to the plaintiffs, Tirlok Chand was adopted by Prabhu Dayal on 04.03.1970. However, thereafter Prabhu Dayal executed registered Will dated 27.03.1970 in favour of Tirlok Chand and in the said Will, Tirlok Chand was described as son of Bhagwana and not as adopted son RSA No.1329 of 2010 (O&M) -3- of Prabhu Dayal. If Tirlok Chand has been adopted by Prabhu Dayal on 04.03.1970, then this fact would have been certainly mentioned by Prabhu Dayal in his Will dated 27.03.1970, executed just 23 days after the alleged adoption. However, no such fact has been mentioned in the Will and rather Tirlok Chand was described as son of Bhagwana. This documentary evidence completely rules out the alleged adoption of Tirlok Chand by Prabhu Dayal. In addition to the aforesaid, mandatory provisions of Sections 7 and 9 of the Hindu Adoptions and Maintenance Act, 1956 (in short, the Act) have also not been complied with regarding alleged adoption. According to Section 7 of the Act, if the person taking a son or a daughter in adoption has a wife living, he shall not adopt except with the consent of his wife. Similarly according to Section 9 of the Act, if the person giving a child in adoption has wife living, the child can be given in adoption only with the consent of the mother of the child. In the instant case, however, even the alleged Bahi writing does not depict that wife of Bhagwana and wife of Prabhu Dayal, who were both alive, consented to the alleged adoption. In view of non-compliance with aforesaid mandatory provisions, the alleged adoption cannot be said to be legally valid. Plaintiffs relied on Bahi entry as their megna carta to prove the alleged adoption. However, no Bahi was produced in evidence and only a single paper of Bahi containing said writing has been produced. However, defendants have denied execution of the said writing. Both parties have examined handwriting experts as witnesses, but it cannot be said that plaintiffs have successfully proved the said writing. Plaintiffs also relied on provisional certificate of middle RSA No.1329 of 2010 (O&M) -4- examination of Tirlok Chand, wherein his father's name was mentioned as Prabhu Dayal. However, the said certificate was obtained on 24.05.2002 i.e. after four years of filing of the instant suit. Om Parkash-PW-4 who proved the said certificate admitted in cross-examination that ink of words 'Tirlok Chand, Prabhu Dayal, Krishan, Hindu, Brahman, Nangal Sirohi' is darker as compared to ink of the remaining writing in the certificate. Consequently, the aforesaid certificate is very suspicious. Moreover, this witness did not bring any record of the aforesaid character certificate. This witness had not issued the said certificate. Moreover, at the time of admission of Tirlok Chand in school, his father's name was mentioned as Bhagwan Dass in the admission form dated 03.05.1980 Exhibit D-1. This admission form which was submitted more than 10 years after the alleged adoption again negatives the alleged adoption. In first appeal, plaintiffs led some additional evidence in the form of middle examination certificate of School Education Board wherein father's name of Tirlok Chand has been mentioned as Prabhu Dayal. However, in view of the reasons noticed hereinbefore, the said certificate is not sufficient to depict that Tirlok Chand had been adopted by Prabhu Dayal. Moreover, even in the said certificate, Tirlok Chand was not mentioned to be adopted son of Prabhu Dayal but was mentioned to be son of Prabhu Dayal. The said certificate also becomes suspicious. Moreover, the said certificate related to examination held in February, 1980, but in admission form dated 03.05.1980, father's name of Tirlok Chand was mentioned to be Bhagwan Dass and not Prabhu Dayal. Consequently, the aforesaid evidence does not help the appellants to prove the alleged adoption of Tirlok Chand by Prabhu Dayal. One witness from Garh Mukteshwar was also examined regarding RSA No.1329 of 2010 (O&M) -5- entry of immersion of ashes of Nikki Bai defendant No.2. This entry dated 31.08.2008 made during the pendency of the first appeal would not help the plaintiffs in any manner, because apparently the same has been got entered to create evidence for this case. On the contrary, in view of pending litigation, plaintiff No.1 would not have gone for immersion of ashes of defendant No.2. The suit is also barred by limitation. Mutation of Bhagwana was sanctioned on 31.05.1983, whereas the instant suit was filed on 18.07.1998. For the reasons aforesaid, I have no hesitation in affirming the concurrent finding recorded by the courts below that Tirlok Chand was not adopted by Prabhu Dayal. The said finding is based on proper appreciation of evidence and is supported by detailed reasons recorded by both the lower courts. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or mis-appreciation of evidence so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely frivolous and meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 20th April, 2011 'raj'