IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA Nos. 146 and 157 of 1995 Date of Decision:- __2.12.2008 __________________________________________________________ RSA No. 146 of 1995 Roshni Devi & others ….Appellants. Versus Mansha Devi & others ….Respondents. RSA No. 157 of 1995 Banka Ram & others. …..Appellants. Versus Karam Chand …..Respondent __________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ RSA No. 146 of 1995 For the Appellants: Shri K.D. Sood and Shri Sanjeev Sood, Advocates. For the Respondents 1 to 7: Shri Ramakant Sharma, Advocate For Respondent No.9 : Shri Suneet Goel, Advocate. RSA No. 157 of 1995 For the Appellants: Shri Ramakant Sharma, Advocate. For the Respondent: None. ___________________________________________________________ Dev Darshan Sud, J. Both these appeal are being taken up for decision together as they involve a common questions of law and fact. Firstly, RSA No. 157 of 1995 is being taken for decision. Kangru Ram who is the brother of defendant No.3 Jagat 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Ram in Civil Suit No. 111 of 1984 instituted two suites namely Civil Suit No. 111 of 1984 and 84 of 1985. Civil Suit No. 111 of 1984 was filed by the plaintiff Kangru Ram on the allegations that the gift deed Ext.D1 executed on 19.8.1980 by Jagat Ram (brother of Kangru Ram) in favour of defendants No.1 and 2 Barfi Ram and Prem Chand of the land is illegal, null and void and does not bind the reversionary rights of the plaintiff in the suit. Civil Suit No. 84 of 1985 challenges the deed of adoption dated 19.4.1984 Ext.DW6/A of Karam Chand executed by Jagat Ram. Both these suits were consolidated by an order dated 7.1.1987 and disposed of by a common judgment. In Civil Suit No. 111 of 1984, six issues were settled holdings that the suit was barred by limitation. In Civil suit No. 84 of 1985 a crucial issue is as to whether there was a valid adoption of Karam Chand by Jagat Ram. This issue was held in favour of the respondents and the suit dismissed. Both the parties being aggrieved, two appeals were preferred before the learned District Judge. The learned Appellate Court held the adoption to be valid. However, the learned District Judge decreed the suit of the plaintiff setting aside the gift deed holding that the property could not be alienated. Both these appeals are now being taken up together for consideration as facts are common to both these appeals. RSA No. 146 of 1995 was admitted on 4.5.1995 on the following substantial questions of law:- 1. Whether the suit of the plaintiff was within limitation ? 2. Whether the property in the hands of Jagat Ram was ancestral and Jagat Ram could not gift the property to the defendants in lieu of the services rendered ? 4. Whether the plaintiff has a right to challenge the gift in the presence of Karam Chand who was stated to have been adopted by Jagat Ram ? 5. Whether the adoption of Karam Chand by Jagat Ram was legal and valid ? 3 RSA No. 157 of 1995 was admitted on 12.5.1995 on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of mis-reading of the provisions of Sections 6, 7, 9, 10 and 11 as also presumption under Section 16 of the Hindu Adoption Act stood duly rebutted ? 2. Whether the impugned judgment is the result of mis- consturction and mis-reading of evidence particularly that of PW3 Savitri Devi, PW5 Kangru Ram and that of DW Shri Prem Chand ? Question No.1 in RSA No. 157 of 1995 and question No.5 in RSA No. 146 of 1995 are crucial to the decision of the appeals. If it is held that adoption was valid, the entire controversy between the parties would be put to rest. On the question of adoption, the learned Court holds that original adoption deed Ext.DW6/A dated 19.4.1984, (which is a registered adoption deed in Civil Suit No. 84 of 1985), was signed by the father and mother of Karam Chand and by Jagat Ram. Ext.DW6/A the learned Court considered the evidence of PW1 Uttam Chand who states that date of birth of Karam Chand is 18.4.1973. When considered with the statement of PW5 Kangru Ram, the learned Court holds that this satisfies the mandate of Section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act) that as on the date when the adoption was made Karam Chand was below 15 years of age. Adverting to the other provisions of the Act namely Section 11, the learned Court holds that these conditions are satisfied. On arriving at this conclusion, the Court appreciates the evidence on record and holds that it is sufficient to establish that the child was taken away from his natural family and given in adoption to Jagat Ram. The consent of all three parties namely the adoptive father and natural parents of Karam Chand and his wife is also established on the record. Registration of Ext.DW6/A was considered to be sufficient in terms of Section 16 of the Act to 4 prove valid adoption. DW6 Kishan Chand is the scribe of this deed, who stated in his evidence that the deed was scribed at the instance of Jagat Ram who admitted the contents of deed to be correct and thereafter put his thumb impression in the presence of witnesses. DW5 Dhani Ram was a witness to the adoption, was categorical in his statement that Karam Chand was given to Jagat Ram, the adoptive father by his natural parents. All these persons have also put their thumb impressions on Ext.DW6/A before the Registrar. The learned Courts hold that the only reason putforth by the plaintiff Kangru Ram to challenge the adoption that it was to legitimize the gift deed Ext.D1 in Civil Suit No. 111 of 1984 and there was no adoption is not proved on the record. The learned District Judge in appeal also holds that the factum of registration of the deed of adoption has been proved as the evidence on record clearly established this fact. Learned counsel appearing for the appellant places reliance on a decision of the Karnataka High Court in Ramanna Gowda & others Vs. Shankarappa and others AIR 1988 Karnataka 248, Devgonda Raygonda Patil Vs. Shamgonda Raygonda Patil and another AIR 1992 Bombay 189 and Modan Singh Vs. Sham Kaur & others AIR 1973 Punjab and Haryana 122 holding that once registration of the deed of the adoption has been established/proved, it is for the plaintiff to prove by clear and cogent evidence that no such adoption has taken place. The learned Court finds that evidence on record clearly establishes the validity of adoption and the presumption as contemplated under Section 16 of the Act has not been rebutted. I cannot persuade myself to come to another conclusion. In view of this, I hold that both the Courts below have correctly held that the adoption of Karam Chand is valid. In view of this, all that need be stated is that once it is held that the adoption of Karam Chand is valid and such presumption under Section 16 of the Act has not been rebutted, the entire case of the plaintiff Kangru Ram would fail. 5 Obviously, after adoption Karam Chand, being the natural heir, it was for him to challenge the alienation. In his presence, as being the sole heir of the property, it was not open to the plaintiff to claim any reversionary rights. Accordingly, RSA No.157 of 1995 is dismissed and RSA No. 146 of 1995 is allowed. Parties to bear their own cost. All other questions are disposed of accordingly. December 2, 2008 (Dev Darshan Sud) (ms) Judge