RSA No.2327 of 1987 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2327 of 1987 (O&M) Date of decision: 26.3.2010 Chameli ............Appellant Versus Ude Singh and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. M. L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the appellant. Mr. C. B. Goel, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. The plaintiff/appellant has filed the present second appeal challenging the judgment and decree dated 7.10.1986 passed by the learned trial Court and judgment and decree dated 9.4.1987 passed by the learned first Appellate Court/Addl. District Judge (II), Rohtak. By the impugned judgments and decrees, both the Courts have dismissed the suit seeking declaration that the adoption of Krishan, defendant No.3, is illegal, void and ineffective. RSA No.2327 of 1987 (O&M) 2 2. The brief facts of the present case are that plaintiff has filed this suit for issuance of a declaratory decree, challenging the adoption of Krishan by defendant No.1, Ude Singh and decree and judgment dated 14.10.1981 passed in favour of Krishan defendant No.3 and Khazani, defendant No.2. Plaintiff has averred that Ude Singh, defendant No.1, has no male issue; plaintiff and defendants No.2 and 4 are his daughters; the land mentioned in para No.1-A of the plaint is owned and possessed by defendant No.1, situated in Village Mehrana; defendants No.1 to 3, in order to defeat the rights of plaintiff who could have inherited ¼ share of the total estate of Ude Singh after his death, fraudulently by way of collusive civil suit filed by defendants No.2 and 3 against defendant No.1, got the land in suit decreed in their favour vide judgment and decree dated 14.10.1981; in a collusive civil suit, defendant No.3 Krishan was declared owner in possession to the extent of 2/5 share and defendant No.2 Khazani to the extent of 1/6 share of the total land in dispute; the said judgment and decree was obtained fraudulently and are illegal, void and not binding upon the rights of the plaintiff; no family settlement ever took place between them nor defendant No.3. Krishan was adopted by defendant No.1; that suit was collusive and was also bad for non-joinder of necessary party and the then plaintiffs (now defendants No.2 and 3) were declared to be owners in possession of more shares than the defendant No.1 had; in fact, defendant No.1 Ude Singh never appeared in the Court nor any ‘Vakalatnama’ was signed by him and nor any statement was made by him in the Court; the plea of adoption was also fake one; the subsequent adoption deed dated 15.12.1981 is also illegal, void and a fictitious document and was executed just to create relationship between defendant RSA No.2327 of 1987 (O&M) 3 No.1-Ude Singh and defendant No.3 – Krishan; thus, defendant No.3 – Krishan was totally a stranger to the family of plaintiff; a number of times plaintiff asked defendants to admit her claim to the extent of ¼ share in the property in dispute but to no effect. Hence, the suit. 3. Defendants contested the suit by refuting all the allegations made in the plaint. Defendant No.3 alleged that he is adopted son of defendant No.1 and both are in relationship of son and father; they are Jat and do agriculture and are governed by jamindar reewaj and plaintiff being a female, cannot challenge an alienation and thus, she has no right and locus standi to file the suit. 4. Learned trial Court framed following issues:- “1. Whether the adoption deed dated15.12.1981 is illegal, forged, null and void and not binding on the rights of the plaintiff?OPP. 2. Whether the judgment and decree dated 14.10.1981 in Suit No.718 titled as Krishan Singh vs. Ude Singh are illegal, void and inoperative against the rights of the plaintiff?OPP. 3. Whether plaintiff has got no locus standi to file the suit as alleged in P.O. No.1 of the W.S.?OPD. 4. Whether the suit of the plaintiff is infructuous as it does not give all details as alleged in para No.2 of additional objection in W.S.?OPD. 5. Whether the plaintiff is debarred from filing the present suit by her own act and conduct?OPD. 6. Whether the suit is not maintainable in the present form, if so, to what effect?OPD. RSA No.2327 of 1987 (O&M) 4 7. Whether the suit has been filed by plaintiff in connivance with son of her uncle to harm the interest of defendant, if so, to what effect?OPD. 8. Relief.” 5. Learned trial Court has held that Krishan, defendant No.3, was adopted by Ude Singh, defendant No.1, on 1.9.1975 and adoption deed dated 15.12.1981 was executed after the period of six years. No illegality has been committed in the adoption deed and it is valid one and bind upon the rights of the plaintiff. Suit of the plaintiff was dismissed. Learned first Appellate Court also dismissed the appeal. Hence, the present second appeal. 6. I have heard learned Counsel for the parties and perused the record. 7. In my view, following substantial questions of law are required to be formulated for the just and fair decision of the present appeal:- 1) As to whether Section 16 of the Hindu Adoptions and Maintenance Act requires adoption deed to be a bilateral document? If yes, as to whether any acknowledgement by the alleged adoptive father would attract the presumption under Section 16 of the Act? 2) As to whether alleged adoption is proved as per the provisions of Hindu Adoptions and Maintenance Act? 3) As to whether decree passed by the Civil Court in earlier suit in which present appellant/plaintiff was not the party has got any binding affect over the plaintiff? 8. Answer to substantial questions No.1 and 2:- Section RSA No.2327 of 1987 (O&M) 5 16 of the Hindu Adoptions and Maintenance Act reads as under:- “16. Presumption as to registered documents relating to adoption – 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.” 9. From the perusal of Section 16 of the Act, it can safely be said that for drawing the presumption under Section 16, adoption deed must be made and signed by both the parties. It should be bilateral document. Deed in question is in the form of acknowledgement made by Ude Singh. Mere signature by natural guardians as witness thereon does not make the deed executed by both the parents. 10. In the case of Raghunath Beheri v. Balram Behera reported in AIR 1996 Orissa 38, Hon’ble Mr. Justice Arijit Pasayat, as Lordship then was, has held in para No.9 thereof as under:- “9. Neither any deed of gift and acceptance executed and registered nor deed of acknowledgement acknowledging adoption is sufficient by itself to constitute legal adoption in the absence of actual giving and taking. It is not a substitute for actual giving or taking. Omission of day or date of adoption in a deed of acknowledgement is very vital. Such a deed loses all its significance.” 11. In Raghunath Beheri (supra) in para No.10 following RSA No.2327 of 1987 (O&M) 6 observations were made:- “Statements made to the effect that a person is the adopted son cannot be regarded as determinative of the question of adoption by any rule or prudence. The description as an adoptive son may be merely description and not necessarily as a motivation. Validity of an adoption often becomes material while deciding such a question.” 12. On the contrary, judgment of learned Single Judge of this Court in the case of Basdeo Bhardwaj v. Ram Sarup reported in 1968 PLR 535 is pressed in service and contended that factum of adoption as contended in the deed can only be disproved by cogent evidence by the party challenging the adoption and there is no requirement to prove the factum of adoption even if adoption is surrounded by suspicious circumstances. Learned Single Judge in Basdeo Bhardwaj (supra) in para No.10 has made following observations. “10. A distinction between the factum probandum and the factum probans has to be borne in mind. The factum probandum or the fact to be proved in this case is that there was a registered document produced before the trial Court purporting to record the adoption made and was signed by the person giving and the person taking the child in adoption. No doubt can be entertained on these facti probandi. The deed of registration records an adoption by Kishan Devi of Mukesh Kumar. Her thumb mark as the person taking the child in adoption, and the signatures of Basdev as the person giving in adoption (god RSA No.2327 of 1987 (O&M) 7 dehinaa) are borne on the deed. The attesting witnesses have deposed to the execution of the deed. After such a document is produced, section 16 requires that the Court shall presume that the adoption has been made in compliance with the provision of the Act unless and until it is disproved. All that has been said is that Basdev signed the document as an attesting witness and not as an executants, but that is not so. Apart from indicating that he was the god dehinda, he has signed his name under ‘Alaba’ (signature or prescription and not under ‘gawa shudh’ (witnessed). In my view, the requirements of section 16 have been satisfied. There is no option left to the Court and it is bound to take the fact as proved, until evidence is given to disprove it and the party interested in disproving it must produce such evidence if he can. The factum probandum was that the adoption had been made in accordance with the provisions of this Act. The presumptive proof is sought to be disproved by casting aspersions on the credibility of the oral evidence. Supposing that was successfully done, that will only prove that the witnesses are not to be relied upon but that would not suffice to disprove the presumption. It is true that the presumption is a presumptio juris and it is competent to a party to show that the inference was fallacious. It must be conceded that section 16 does not raise a presumption juris et de jure when no evidence to displace presumption is allowed to be given. In decreeing the suit, the trial Court has placed its reliance upon certain RSA No.2327 of 1987 (O&M) 8 circumstances.” 13. I have carefully examined both the judgments (supra). I am of the opinion that if adoption deed is made and signed by both the parents and contains date and place of adoption, and same is registered then no other evidence is required to prove factum of adoption. If some one challenges factum of adoption then he has to produce cogent evidence to disprove the factum of adoption. However, if deed is surrounded by suspicious circumstances, date or day of adoption is missing or adoption seems to be, on the face of it, in violation of the Act, then cogent evidence is required to prove the adoption. 14. Section 10 of the Hindu Adoptions and Maintenance Act reads as under:- “10. Persons who may be adopted – No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” 15. From the perusal of the alleged adoption deed, alleged adoption took place on 1.9.1975. Adoption deed was executed on RSA No.2327 of 1987 (O&M) 9 15.12.1981. In the adoption deed, age of Krishan, defendant No.3, is mentioned as 22 years. If Krishan Singh was of 22 years on 15.12.1981, then his age on 1.9.1975 would be above 15 years. Neither alleged adoption deed nor pleading of the defendants or any evidence on record suggest that there was any custom or usage prevailing in the caste of the parties permitting to take a person in adoption who was above 15 years of age. 16. In view of the above, defendants failed to prove any adoption. Substantial questions No.1 and 2 are answered accordingly. 17. Answer to substantial question No.3:- Undisputedly, plaintiff is one of the daughter of Ude Singh. She was not a party in the Suit No.718 decided on 14.10.1981. To attract the principle of res-judicata or principle of estoppel or to make observation in the previous litigation binding, it must be proved that either decree is passed in the presence of a person or person concerned accept the observation and judgment by his conduct subsequent to the decree. There is no evidence on record to show that the plaintiff has accepted the defendant No.3 as adopted son. In my view, judgment passed in Suit No.718 does not bind the plaintiff. In view of findings recorded in substantial question Nos.1 and 2, judgment and decree dated 14.10.1981 in Suit No.718 does not bind the plaintiff and is inoperative and illegal qua the rights of the plaintiff. Substantial question No.3 is answered accordingly. 18. For the reasons recorded hereinabove, impugned judgments of both the Courts below can not be sustained. The appeal is allowed. Judgments and decrees of both the Courts below are set aside. Suit of the plaintiff is decreed with costs through out. RSA No.2327 of 1987 (O&M) 10 (ALOK SINGH) 26.3.2010 JUDGE ashish