RSA No. 1393 of 1981(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1393 of 1981 (O&M) Date of Decision: August 18, 2009 Ajay Kumar ...... Appellant Versus Tikku Ram and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Dr. Parveen Hans, Advocate for the appellant. Mr.G.R.Vashisth, Advocate with Mr.Sanjay Vashisth, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Bhiwani allowing the appeal of the respondents and thereby dismissing the suit of the plaintiff for permanent injunction restraining the respondents from withdrawing any amount in two bank accounts mentioned in the plaint. The following questions have been proposed:- a) Whether in view of Section 16, whenever any registered adoption deed is produced before any Court, the Court shall presume that the adoption had been made in compliance with the provisions of the Hindu Adoption RSA No. 1393 of 1981(O&M) 2 and Maintenance Act, 1956? b) Whether the presumption under Section 16 of the Hindu Adoption and Maintenance Act, 1956 has to be disproved by the other party by leading cogent evidence in rebuttal and where no such evidence is led, the legal presumption remains unaffected not having been disproved? c) Whether for taking a son in adoption, the consent of the wife as required under Section 7 of the Hindu Adoption and Maintenance Act, 1956 need not to be express and could be implied from the circumstances? d) Whether the adoption deed is required to be signed by the adoptive mother? e) Whether if no objection is taken regarding mode of proof of the deed of adoption produced before the Trial Court, the party is precluded from raising the objection for the first time in appeal? f) Whether the registration of the adoption deed itself is a big circumstance proving its genuineness? g) Whether a public document is per se admissible under Section 35 of the Indian Evidence Act? h) Whether the documentary evidence can be ignored unless the contrary is proved? i) Whether the findings in the suit for declaration operate as res judicata upon the proceedings in the injunction suit in respect of the same subject matter involved between the same parties? Learned counsel has argued that the trial Court had accepted the adoption deed in favour of the appellant since the attesting witness had appeared and testified to its correctness and that independent of that the appellant had also proved the necessary ceremonies of adoption. He further argued that the learned Lower Appellate Court wrongly allowed the RSA No. 1393 of 1981(O&M) 3 appeal only because the original adoption deed was not placed on record. It would be seen that questions No. (a) to (h) are all questions relating to the factum of adoption. I find that the argument of learned counsel that the adoption was disbelieved only on account of non production of the original adoption deed is not correct. The learned Lower Appellate Court has considered the entire evidence relating to this allegation and has come to a conclusion that in fact the adoption was not proved. Questions No. (a), (e), (f) and (g) have to be answered against the appellant for the reason that in the absence of the original document the presumption sought to be raised in questions No.(a), (f) and (g) cannot be raised. As regards questions No. (e), in my opinion, the learned Lower Appellate Court has rightly held that mere exhibition of a document would not render it admissible since there is a specific provision for secondary evidence and no evidence can be led unless the said conditions are fulfilled. Question No.(c) which relates to the implied consent of the alleged adoptive mother is a pure question of fact. Learned counsel has not been able to persuade me that the findings recorded thereon are either based on no evidence or based on such a misreading of evidence so as to be liable for interference under Section 100 C.P.C. Question No. (d) does not arise in view of question No. (c ). As regards question No.(i) learned counsel for the appellant is not in a position to deny that the judgment in the other suit is presently under appeal. Thus findings recorded therein cannot be res judicata in this suit. Consequently holding the proposed questions against the RSA No. 1393 of 1981(O&M) 4 appellant, this appeal is dismissed. No costs. Since the main case has been decided, the pending civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE August 18, 2009 sunita