IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 03 of 2011. Decided on: 07.01.2011. _____________________________________________________ Shyam Lal. …Appellant. -Versus- Manbharu. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. Naresh Kumar Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Regular Second Appeal is directed against the judgment and decree dated 25.10.2010, passed by the learned District Judge, Bilaspur, H.P. in Civil Appeal No. 25 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit for declaration to the effect that he is owner in possession of the land comprised in Khata/Khatoni No. 66/79, Khasra Nos. 29, 150, 186, 355, Kittas-4, measuring 6-6 bighas, situated at village Sayar, Pargana Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. (hereinafter referred to as the “suit land” for convenience sake) by way of adverse possession. According to the plaintiff he was adopted son of respondent –defendant (hereinafter referred to as “the defendant” for convenience sake), who is his real Aunt. The 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. adoption ceremonies took place on 13.04.1963 in accordance with law, custom and usage prevailing amongst the community. He was given in adoption by his natural parents to the defendants who had no son, except two daughters, namely, Smt. Shakuntala Devi and Kanta Devi. He resided with the defendant before his marriage and even thereafter. The plaintiff had lost his right, title and interest in the property of his family by virtue of the alleged adoption. He had been looking after the suit land since 13.01.1974. His marriage was solemnized on 01.03.1979 and till 25.04.1985, he had been cultivating the suit land peacefully. The defendant tried to take forcible possession of the suit land for the purpose of cultivation, but she could not succeed. According to him, he was in continuous, uninterrupted and hostile possession of the suit land since 25.04.1985 and thereby he has perfected his title by way of adverse possession. 3. The suit was contested by the defendant. The defendant has admitted that the plaintiff is the son of her real sister and he was brought up by her. She had also performed the marriage of the plaintiff. She has specifically denied that the plaintiff had been looking after the defendant and managing the suit land. She also pleaded that she had executed a ‘Will’ in favour of the plaintiff, but on account of his non-cooperative behaviour, she revoked the same, which prompted the plaintiff to file the present suit. The learned trial Court framed the issues on 08.03.2003. The learned trial Court dismissed the suit on 18.04.2009. Plaintiff preferred an appeal before the learned District Judge, Bilaspur, H.P. He dismissed the same on 25.10.2010. Hence, this Regular Second Appeal. 4. Mr. Naresh Kumar Thakur, learned counsel for the appellant has vehemently argued that the judgments and decrees passed by both the Courts below are not in accordance with the settled principles of law. He then argued that his client has proved by leading tangible evidence on record that he was adopted by the defendant. He also pleaded that his client has proved the ingredients of adverse possession qua the suit land. 5. I have heard Mr. Naresh Thakur, learned counsel for the appellant at length and gone through the judgments carefully. 6. Plaintiff has appeared as PW-1. He was born on 05.02.1960. According to him, he was adopted by his Aunt on 13.04.1963. He had been cultivating the suit land since 1974. He did not know when his father has died. He has also shown his ignorance to the effect that whether estate of his father has been devolved upon him or not. According to him, the ritual of adoption were performed at village Bhater which is 14-15 Kms. away from village Sayar. He has also deposed that his status has been severed from his original family after his adoption. 7. PW-2, Smt. Kasu Devi, PW-3, Smt. Kamla Devi and PW-4, Shri Mahantu had deposed that the plaintiff was adopted by the defendant 40-41 years back. PW-5 Dhanu Ram has deposed that he had seen the plaintiff in possession of the suit land for the last 15 years. He was brought up by the defendant. According to him, the plaintiff was now owner in possession of the suit land. PW-6, Shri Lalit Kumar, Kanungo has proved the voter lists Ex. PW6/A, Ex. PW-6/B and Ex. PW-6/C. PW-7 is Shri Sant Ram. According to him, he had seen the plaintiff residing with the defendant for the last 38 years. According to him, he was adopted by the defendant, when he was hardly two years’ old. PW-8, Shri Hari Ram has brought the family register to prove the entry regarding the family of Smt. Manbharu and has proved on record the extract of family register Ex. PW-8/A. PW-9 has also deposed that the plaintiff is adopted son of the defendant. 8. Defendant has appeared as DW-1. She has deposed that she had incurred all the expenses regarding plaintiff’s education and on his marriage. According to her, the plaintiff was residing separately for the last 6-7 years. He never remained in possession of the suit land. She had executed a Will in favour of the plaintiff, but subsequently due to behaviour of the plaintiff, the same was revoked. She has admitted that Smt. Kasu is her real sister. She has denied that the plaintiff was ever adopted by her on 13.04.1963. She has also denied that the plaintiff was cultivating her land since 13.01.1974. Defendant has also proved on record Ex.D-1, copy of pedigree table and Ex. D-2, copy mutation regarding the inheritance of estate of Munshi Ram. In voters list, father’s name of the plaintiff has been recorded as Munshi Ram. In school leaving certificate also, the father’s name of the plaintiff has been recorded as Munshi Ram. The name of the plaintiffs’ father, i.e., Shri Munshi Ram was never substituted by adopted father, Narainu or adopted mother Smt. Manbharu. According to Ex. D-1, Munshi Ram had three sons Shyam Lal, Jai Kishan and Prem Lal. In Ex. D-2, plaintiff has also figured in the list of beneficiaries, when he was not excluded from the estate of Munshi Ram. It has not come on the record that the husband of defendant has died. Plaintiff has not proved the ceremony of giving and taking over. The ceremony of actual giving and taking over is necessary with intent to transfer the child from the family of its birth to the family of its adoption. Though there is no particular mode of manner of giving and taking over, however, there have to be some act of giving and taking over. There is no adoption deed proved on record. There is nothing on record to prove whether the husband of defendant was alive or dead at the time of alleged adoption of the plaintiff. 9. Their Lordships of the Hon’ble Supreme Court in Lakshman Singh Kothari Versus Smt. Rup Kanwar, AIR 1961 Supreme Court 1378 (V 48 C 258), 1378 have held that transfer of adoptive boy by ceremony of giving and taking is essential, though no particular form is prescribed. Their Lordships have held as under: “10. The law may briefly stated thus: Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.” 10. Their Lordships of the Hon’ble Supreme Court in Madhusudan Das Versus Smt. Narayanibai (deceased) by L.Rs. and others (1983) 1 Supreme Court Cases 35 have held that for a valid adoption, the ceremony of giving and taking is an essential requisite in all adoptions, whatever the caste. Their Lordships have further held that this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Their Lordships have held as under: “20. For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder, (1880) 7 Ind App 250. In Lakshman Singh v. Smt. Rupkanwar, (1962) 1 SCR 477, 490 : (AIR 1961 SC 1378 at p. 1381), this Court briefly stated the law thus : "Under the Hindu law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have formal ceremony. No particular form is prescribed for the ceremony, but the law requires that, the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it." In some cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. Bal Gangadhar Tilak v. Shrinivas Pandit, (1915) 42 Ind App 135 : (AIR 1915 PC 7). In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a Valid adoption, and nothing has been shown to us to indicate that the further ceremony of "datta homam" was necessary. 11. Their lordships of the Hon’ble Supreme Court in Rahasa Pandiani (Dead) by Lrs. and Others Versus Gokulananda Panda and Others (1987) 2 Supreme Court Cases 338 have held that the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property and if there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. Their Lordships have held as under: “4. Before we advert to the relevant circumstances we consider it appropriate to advert to note of caution sounded by this Court as early as in 1958 in Kishori Lal v. Mst. Chaltibai, 1959 Suppl (1) SCR 698 : (AIR 1959 SC 504). We can do no better than to quote the relevant passage from the judgment of Kapur, J. (at p. 508 of AIR) :- "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra. (1834 (2) Knapp 287); in Diwakar Rao v. Chandanlal Rao, (AIR 1916 PC 81); in Kishorilal v. Chunilal, (1908 (36) Ind App, 9): in Musammat Lal Kunwar v. Chiranji Lal, (1909 (37) Ind App 1) and in Padmalal v. Fakira Debya, (AIR 1931 PC 84)." When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place. the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach. 12. The same principles have been reiterated by their Lordships of the Hon’ble Supreme Court in Jai Singh Versus Shakuntala (2002) 3 Supreme Court Cases 634. Their Lordships have held that actual or physical giving and taking of the child concerned is an essential feature of a valid adoption. Their Lordships have held as under: “ 13. The deed records that the parents of Jai Singh have given him in adoption to Sunda Ram in the month of March and he had taken him on his lap. No specific ceremonies have been noted neither any evidence has been tendered pertaining to the adoption in March. 1973 It is on this deed that Mr. Ramchandran, the learned senior advocate appearing for the respondent contended that the document even on the face of it does not justify any consideration by reason of the recording that 'the adopted son shall have the same rights as a natural son has' - this insertion of preservation of his right as a natural son is rather significant and ought to be read along with the Will dated 14/02/1974 wherein it has been recorded that 'entire property will be inherited by the adopted son, Jai Singh and no one else shall have any share in it' : whereas the recording of the Will that the testator being not desirous of giving any share to the daughter cannot but be termed to be otherwise in accordance with the normal human conduct under certain circumstances but recording to the effect "in case after my death, my daughter Shakuntala claims any property that should be rejected" together with the recording that "this Will has been written in favour of my adopted son Jai Singh so that it may be used at the time of need" depict the true nature of the claim of the appellant which it has been argued for the respondent tantamounts to be utterly false. Mr. Ramchandran also placed reliance on section 11 (vi) of the Act, which records that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned with, intent to transfer the child from the family of its birth to the family of its adoption. The give and take in adoption is a requirement, which stands as a sine qua non for a valid adoption and it is in this context that Mr. Ramchandran contended that the rebuttable presumption has thus been duly rebutted by the evidence put forth by the respondent and stands reinforced by the appellant's own evidence.” 13. The Hon’ble Punjab and Haryana High Court in Bakhshish Singh Versus Kewal Singh and Others, Punjab Law Reporter Vol. 77 1975, 321 has held that Under clause (vi) of Section 11, both the conditions are necessary, namely, that the child must be given and taken in adoption and that such giving and taking should be with intent to transfer the child from the family of its birth to the family of its adoption. The learned Single Judge has held as under: “6. The next argument raised appellants in support of the contention that the adoption was invalid was that it not having been established that Kewal Wingh respondent was given away in adoption by his mother the ceremony of adoption and the adoption deed were of no consequence. In order to appreciate this argument reference will have to be made to sections 6,9 and 11 of the Act. Section 6 among other things provides that no adoption shall be valid unless the person giving in adoption has the capacity to do so. Section 9(1) then states that no person except the father or mother or the guardian of the child shall have the capacity to give the child in adoption. Under Section 11, in every adoption the conditions mentioned therein must be complied with. The only implication of this section is that if any of the conditions is not complied with, the adoption is not valid. One of the conditions mentioned is that the child to be adopted must be given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family or its birth to the family of its adoption. A proviso is added to clause (vi) of Section 11 that the performance of the ceremony of data homam shall not be essential to the validity of an adoption. 9. The second part of the argument is equally without merit. It was urged that as long as the mother had consented to the transfer of the child from the family of his birth to the family of his adoption it should be implied that she had given the child in adoption. Under Clause (vi) of Section 11, both the conditions are necessary, namely, that the child must be given and taken in adoption and that such giving and taking should be with intent to transfer the child from the family of its birth to the family of its adoption. It is not sufficient to establish that taking by the adoptive father was with intent to transfer the child from the family of its birth, but it must further be shown that the fhild was given in adoption. 14. In the instant case, the plaintiff has failed to prove that he was validly adopted. There is nothing on record to prove that giving and taking ceremony has ever taken place. The learned trial Court has, however, erred in law by holding that ceremonies of “Datta Homam” was essential. A bare perusal of proviso to Clause 6 of Section 11 of the Hindu Adoption and Maintenance Act, 1956, makes it abundantly clear that ceremony of “Datta Homam” is now no more an essential ingredient to prove the adoption. 15. Plaintiff has failed to prove the ingredients of adverse possession, as his initial case was that he was the adopted son and, at the same time, he has claimed his title to the land by way of adverse possession. 16. The learned Courts below have correctly come to the conclusion that the plaintiff has failed to prove the ingredients of adverse possession over the suit land. 17. Accordingly, in view of the observations/discussions made hereinabove, there is no substantial question of law involved in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge January 07, 2011. (bhupender)