RSA No.446 of 1987 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.446 of 1987 (O&M) Date of decision: 26.3.2010 Smt. Sukho alias Phool Wati (died) through LRs ............Appellant Versus Bijender and another .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the appellant. Mr. M. L. Sarin, Sr. Advocate with Ms. Alka Sarin, 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 30.8.1985 passed by the learned trial Court and judgment and decree dated 14.10.1986 passed by the learned first Appellate Court/Addl. District Judge (IV), Faridabad. By the impugned judgments and decrees, both the Courts have dismissed the suit for declaration and possession filed RSA No.446 of 1987 (O&M) 2 by the plaintiff/appellant. 2. The brief facts of the present case are that one Nanuwa (deceased) son of Devi Sahai was the owner in possession of the land measuring 81 kanals 8 marlas and other properties situated in the revenue estate of Village Badoli. Plaintiff claiming herself to be a daughter of Nanuwa (deceased) has filed suit against the defendants for declaration and possession alleging that adoption deed dated 7.6.1977 in favour of Bijender, and decree passed by the Civil Court in Civil Suit No.257 of 18.7.1977 are illegal, null and void and outcome of the fraud and conspiracy and are not binding upon the plaintiff. It was contended by the plaintiff that Nanuwa (deceased), father of the plaintiff, was suffering from paralysis from last six years in life and was unable to move from his bed; defendant No.2, Lakhmi Chand, who is the son of brother of late Nanuwa (cousin of the plaintiff) was having an eye over the property of Nanuwa (deceased) and with an ulterior motive to deprive the plaintiff to inherit the suit properties, obtained frivolous decree by playing misrepresentation and fraud, from the Court of Sub-Judge, Ist Class, Palwal on 26.7.1977; alleged adoption deed dated 7.6.1977 is also the outcome of fraud and misrepresentation. 3. Defendants contested the suit by refuting all the allegations made in the plaint. Both the defendants contend that defendant No.1 was taken in adoption by Nanuwa (deceased) and thereafter adoption deed dated 7.6.1977 was executed and got registered by Nanuwa (deceased) and decree passed in Suit No.257 dated 26.7.1977 is a valid decree. 4. Learned trial Court framed following issues:- “1. Whether defendant No.1 is the validly RSA No.446 of 1987 (O&M) 3 adopted son of deceased Nanuwa?OPD. 2. Whether judgment and decree dated 26.7.1977 is illegal, null and void and in effective on the rights of the plaintiff and is liable to be set aside?OPP. 3. Whether Smt. Sukho, plaintiff is the daughter of late Nanuwa son of Devi Sahai?OPP. 4. Whether the plaintiff has no locus-standi to bring the present suit?OPD. 5. Whether the suit is time barred?OPD. 6. Relief.” 5. Learned trial Court found plaintiff to be a daughter of Nanuwa (deceased) while recording the finding on issue No.3. However, suit of the plaintiff, present appellant, was dismissed by the learned trial Court saying defendant No.1 had earlier filed Civil Suit No.440 against the Mohan and others in which also adoption deed in question came up for consideration and Civil Court therein has held that adoption deed was valid, hence, there is no need to take contrary view to the judgment passed by the Civil Court in the Suit No.440 titled as Bijender Vs. Mohan and others. 6. On appeal filed by the plaintiff, first Appellate Court confirmed the findings recorded by the learned trial Court. Both the Courts below have further held that registration of the alleged adoption deed dated 7.6.1977 is proved, hence, presumption under Section 16 of the Hindu Adoptions and Maintenance Act is in favour of the defendants. 7. I have heard learned Counsel for the parties and perused the record. RSA No.446 of 1987 (O&M) 4 8. 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? 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? 9. Answer to substantial questions No.1 and 2:- Undisputedly, plaintiff is the daughter of Nanuwa (deceased). A perusal of the alleged adoption deed reveals that it has been executed by Nanuwa alone while natural father of the defendant No.1 i.e. defendant No.2 and natural mother of defendant No.1 had allegedly signed the alleged deed as witness. Natural parents are not the executants of deed. 10. Section 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 RSA No.446 of 1987 (O&M) 5 the provisions of this Act unless and until it is disproved.” 11. 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 Nanuwa (deceased). Mere signature by the natural guardians as witness thereon does not make the deed executed by both the parents. Moreover in the deed, it has not been mentioned, as to when adoption took place. In the deed, it has been mentioned that Nanuwa is the issueless while in fact Nanuwa was not issueless and plaintiff/appellant is the daughter of Nanuwa. Alleged adoption deed is dated 7.6.1977 while decree in question was obtained in Civil Suit No.257 on 26.7.1977 titled as Bijender Singh Vs. Manwa within 20 days from the date of adoption deed. These are the most suspicious circumstance for not attracting the presumption under Section 16 of the Act. 12. 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.” 13. In Raghunath Beheri (supra) in para No.10 following RSA No.446 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.” 14. 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.446 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.446 of 1987 (O&M) 8 circumstances.” 15. 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. 16. As observed above, alleged deed does not mention date or day of alleged adoption. Rituals or custom for adoption is also not proved. Deed is surrounded by suspicious circumstances, hence, there can not be any presumption in favour of the factum of adoption. Hence, cogent evidence is required to prove factum of adoption despite of fact alleged deed is registered. 17. I have perused entire material available on record. In the Courts below defendants tried to deny that plaintiff was daughter of Nanuwa. In fact plaintiff was found to be a daughter of Nanuwa by both the Courts below. This conduct of the defendants is sufficient to draw the inference that alleged deed is the outcome of fraud and misrepresentation. No other evidence has been produced to prove adoption as per the rituals, customs and procedure provided for the adoption. Defendants failed to prove factum of adoption and also failed to wash suspicious circumstances. In view of the above, both the questions are answered in favour of the plaintiff/appellant. 18. Answer to substantial question No.3:- Alleged RSA No.446 of 1987 (O&M) 9 adoption deed is dated 7.6.1977 while decree in question was obtained in Civil Suit No.257 on 26.7.1977 titled as Bijender Singh Vs. Manwa within 20 days from the date of adoption deed. It also shows that decree is a fictitious decree just to deprive the plaintiff from the property. However, plaintiff was daughter of the Nanuwa (deceased) and she was not a party either in the Suit No.257 (supra) and in the Suit No.440, then any observation made therein by any Court about the validity of the adoption in question does not bind the plaintiff. To attract the principle of res judicata or principle of estoppel or to make the observation in previous litigation binding, it is must that either decree is passed in the presence of the person concerned or person concerned accept the observation and judgment by his conduct subsequent to decree. There is no evidence on record to show that present appellant/plaintiff has accepted the defendant No.1 as adopted son. In my view, judgments passed in Suit Nos.257 and 440 do not bind the plaintiff. In view of the findings recorded in substantial questions No.1 and 2, if defendant No.1 is not the adopted son of Nanuwa (deceased), decree obtained by Bijender, defendant No.1, showing himself as adopted son of Nanuwa (deceased) is liable to be ignored and set aside. Substantial question No.3 is answered in favour of the plaintiff/appellant. 19. In view of the above, appeal is allowed. Impugned judgments and decrees of both the Courts below are set aside. Suit filed by the plaintiff is decreed with costs through out. Plaintiff/appellant is also entitled for the special cost, under Section 35-A C.P.C. which is quantified at Rs.50,000/-. RSA No.446 of 1987 (O&M) 10 (ALOK SINGH) 26.3.2010 JUDGE ashish