RSA No.1621 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1621 of 2007 (O&M) Date of Decision: December 03, 2009 Amar Singh ...........Appellant Versus State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Munish Singal, Advocate for the appellant. Mr.J.S.Sidhu,Advocate for the respondent ** Sabina, J. Plaintiff-Amar Singh filed a suit for declaration. Vide judgment and decree dated 17.11.2004, the suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division), Fazilka. Aggrieved against the same, the plaintiff filed an appeal and the same was dismissed by the Additional District Judge Ferozepur vide judgment and decree dated 9.2.2006. Hence, the present appeal by the plaintiff. The facts of the case in brief, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment, are reproduced herein below:- “2.The facts pleaded by the appellant before the learned trial court were that Kulwant Singh son of Hardit Singh was serving as Assistant Line Man with respondent No.2 Punjab State Electricity Board (hereinafter referred as the Board). When the appellant was two years old Kulwant Singh adopted him as his son from his RSA No.1621 of 2007(O&M) 2 natural parents, who were residents of village Rukanpur because Kulwant Singh was issueless. An adoption deed to this effect was executed and got attested from Notary Public Fazilka. Kulwant Singh died on 25.7.2000. The appellant performed all the last rites and ceremonies of Kulwant Singh as his son. During his life time, the appellant had been looking after Kulwant Singh as his father. Kulwant Singh was having love and affection for him. On 5.4.2000 Kulwant Singh executed Will in favour of the appellant bequeathing his movable or immovable properties in his favour, including his service/pensionary benefits lying with the Board. After the death of Kulwant Singh, appellant approached the respondent No.2 to admit him as adopted son of Kulwant Singh and to release bill the amounts belonging to Kulwant Singh but they refused. The appellant served legal notice towards respondent No.2 but with no effect. Hence, he filed suit for declaration to the effect that he was adopted son of Kulwant Singh and was entitled to receive all the service/pensionary benefits of Kulwant Singh lying with the respondent No.2 on the basis of adoption deed dated 5.8.1998 and also on the basis of Will dated 5.4.2000 duly executed by deceased Kulwant Singh 3. Notice of the suit was given to the respondents. None appeared on behalf of the respondents no.1 and 2 and thus they were proceeded against ex-parte. Respondent No.2 appeared and filed written statement contesting the suit of the appellant. In its preliminary objections maintainability of the suit was challenged. According to the contesting respondent, the appellant was having RSA No.1621 of 2007(O&M) 3 no locus standi to file the suit. He did not come to the court with clean hands. Suit was based on frivolous grounds and on the basis of fabricated and forged documents. On merits it was averred that the appellant was never adopted by deceased Kulwant Singh. It was averred that he was not entitled to receive any of the service/pensionary benefits of Kulwant Singh lying with respondent No.2. The documents were alleged to be forged and fabricated. It was prayed that the suit of the appellant be dismissed.” On the pleadings of the parties, the trial Court framed the following issues:- “1.Whether the plaintiff is adopted son of Kulwant Singh, vide adoption deed dated 5.8.1998?OPP 2.Whether Kulwant Singh executed a valid Will dated 5.4.2000 in favour of the plaintiff?OPP 3.Whether the plaintiff is entitled to the declaration prayed for?OPP 4.Whether suit of the plaintiff is not maintainable in the present form ?OPD 5.Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 6.Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had filed the suit that he was adopted son of Kulwant Singh. An adoption deed had been executed on 5.8.1998 (Exhibit RSA No.1621 of 2007(O&M) 4 P1). After the death of Kulwant Singh, plaintiff being adopted son was entitled to the pensionary benefits. The case of the plaintiff further was that he had been adopted by Kulwant Singh when he was aged about 2 years. However, a perusal of the adoption deed reveals that the plaintiff had been adopted by Kulwant Singh on 10.11.93. Thus, the plaintiff has taken a contrary pleading with regard to the time of his adoption. As per Section 10 of the Hindu Adoption and Maintenance Act, 1956, the following are the persons who may be adopted:- 1. he or she is a Hindu. 2. he or she has not already been adopted. 3.he or she has not been married, unless there is a custom or usuage applicable to the parties which permits persons who are married being taken in adoption; 4. 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. Admittedly, the date of birth of the plaintiff is 25.2.1978. Thus, the plaintiff was more than 15 years old when he was allegedly adopted by Kulwant Singh on 10.11.1993. However, plaintiff had failed to prove that there was any custom in their community which allowed adoption of a boy of more than 15 years. Exhibit D1 is the result of the plaintiff qua middle standard examination wherein he is described as son of Banta Singh and not as son of Kulwant Singh. Thus, the plaintiff had not been adopted by Kulwant Singh till the year 1995. There is also no explanation as to why, the adoption deed RSA No.1621 of 2007(O&M) 5 was executed in the year 1998 and not immediately at the time of adoption of Kulwant Singh. The Courts below had, thus, rightly dismissed the suit of the plaintiff. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 03, 2009 arya