Regular Second Appeal No. 877 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 877 of 2010 Date of decision : February 24, 2010 Samey Singh ....Appellant versus Santra and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sudhanshu Makkar, Advocate, for the appellant L.N. Mittal, J. (Oral) This is second appeal by defendant no. 1 Samey Singh who has been unsuccessful in both the courts below. Respondent nos. 1 and 2 filed suit against the appellant and proforma respondent no. 3. Admittedly, respondent nos. 1 to 3 are daughters of Surta from his wife Sarti. Defendant no. 1 appellant is son of proforma respondent no. 3 Shanti. Plaintiffs' case is that the plaintiffs and defendant no. 2 i.e. proforma respondent no. 3 have inherited suit property left by their parents Surta and Sarti, in equal shares. However, the defendants in collusion with Patwari succeeded in obtaining a mutation in favour of defendant no. 1 on the basis of gift deed dated 15.2.1972 and Will dated 19.3.1974 allegedly executed by Sarti. However, the plaintiffs have Regular Second Appeal No. 877 of 2010 -2- challenged the said gift deed and Will in the plaint on various grounds including the ground that the same were never executed by Sarti. Defendant no. 1 pleaded that Sarti had no male or female child. It was also pleaded that defendant no. 1 was adopted by Sarti while defendant no. 1 was aged one year only. However, later on adoption deed dated 15.2.1972 was also executed by Sarti. It was pleaded that Sarti adopted defendant no. 1 with the consent of her husband as well as consent of natural parents of defendant no. 1. It was also pleaded that Sarti also executed Will on 19.3.1974 in favour of defendant no. 1. Accordingly, defendant no. 1 claimed to have inherited the suit property on the basis of Will and adoption. Defendant no. 2 in her written statement also supported the stand taken by defendant no. 1. Learned Additional Civil Judge (Senior Division), Bhiwani vide judgment and decree dated 23.5.2005 decreed the suit of the plaintiffs holding that defendant no. 1 was never taken in adoption by Sarti and adoption deed dated 15.2.1972 registered on 16.2.1972 is null and void. It was also declared that Sarti Devi had not executed any valid Will dated 19.3.1974 and the alleged Will is also null and void. Consequently, mutation no. 737 sanctioned on 20.12.1996 was also held to be illegal. It was declared that plaintiffs and defendant no. 2 have inherited the suit property in equal shares. Defendant no. 1 has been restrained from alienating the suit property in any manner. First appeal filed by defendant no. 1 has been dismissed by learned Additional District Judge (Fast Track Court), Bhiwani vide judgment and decree dated 28.11.2009. Feeling aggrieved, defendant no. 1 Regular Second Appeal No. 877 of 2010 -3- has preferred the instant second appeal. First question relates to alleged adoption of defendant no. 1 by Sarti Devi. According to the pleadings of defendant no. 1-appellant, he was adopted by Sarti Devi with the consent of her husband while defendant no. 1 was aged one year only. Learned counsel for the appellant states that the said adoption took place in the year 1955 although formal adoption deed was executed on 15.2.1972 by Sarti Devi. Admittedly, Surta husband of Sarti was alive when the alleged adoption took place in the year 1955. However, in view of section 8 of the Hindu Adoptions and Maintenance Act, 1956, (in short, the Act), Sarti Devi during the life time of her husband and during subsistence of her marriage with Surta was not competent to adopt defendant no. 1. On the other hand, as per section 7 of the Act, husband of Sarti Devi was competent to adopt anybody, although with the consent of Sarti Devi. Sections 7 and 8 of the Act are very plain and clear on this aspect. It is, thus, manifest that the alleged adoption as pleaded by defendant no. 1 was not legal and valid adoption even if version of defendant no. 1 is taken at its face value. It may be added that defendant no. 1 is biological son of defendant no. 2 Shanti Devi who is daughter of Sarti. Learned counsel for the appellant concedes that plaintiffs and defendant no. 2 are daughters of Sarti Devi. However, inspite thereof, defendant no. 1 pleaded in his written statement that Sarti Devi had no male or female child. Thus, a patently false plea was taken by defendant no. 1 that Sarti Devi had no female child although Sarti admittedly had three daughters. Learned counsel for the appellant emphatically pressed the Regular Second Appeal No. 877 of 2010 -4- claim of the appellant on the basis of Will dated 19.3.1974. However, the said Will has not been proved. Defendant no. 1 examined Chatter Singh DW3-one of the two marginal witnesses of the Will. However, Chatter Singh could not prove the Will as his vision was poor. He could not recognise the Will which was allegedly executed by Sarti Devi. The other attesting witness of the Will has not been examined. Learned counsel for the appellant contended that the other witness of the Will had since died. However, on pointed query, learned counsel for the appellant expressed ignorance if there is any such evidence on record that the other witness of the Will has since died. It thus becomes manifest that no attesting witness of the Will has proved the execution of the Will and therefore, the Will has been rightly discarded by the Courts below. In view of section 68 of the Indian Evidence Act, it was imperative to examine at least one attesting witness of the Will to prove its execution as the Will is required by law (section 63 of the Indian Succession Act, 1955) to be attested. However, no attesting witness of the Will has proved execution of the Will. Learned counsel for the appellant referred to section 90 of the Evidence Act and contended that under the said provision, the Will being 30 years old is per-se admissible in evidence. The contention cannot be accepted for two reasons. Section 90 of the Evidence Act is general provision and it will not over-ride specific provision of section 68 of the Evidence Act. Secondly, the suit was instituted on 22.2.1996 and at that time, the alleged Will was not 30 years old. Both the courts below have also recorded sound reasons for discarding the Will. Regular Second Appeal No. 877 of 2010 -5- In view of the aforesaid discussion, I find that the alleged Will dated 19.3.1974, on which the whole claim of the appellant is based, is not proved. There is no infirmity or illegality in the concurrent finding of the Courts below. The said finding based on proper appreciation of evidence is not shown to be perverse or illegal. No substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. ( L.N. Mittal ) February 24, 2010 Judge 'tiwana'