RSA No.3670 of 2008 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3670 of 2008 Date of Decision: 14.11.2008 Sarabjeet Kaur ..Appellant. Vs. Gurmel Kaur ..Respondent. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.P.S.Jammu, Advocate for the appellant. * * * Rakesh Kumar Jain, J. The defendant is in second appeal. The plaintiff filed present suit for seeking declaration that she is the legally wedded wife of Jai Singh @ Hardam Singh who had expired on 15.4.99 at village Singhpura, Tehsil and District Sirsa. Jai Singh @ Hardam Singh married two ladies namely Smt.Gurmel Kaur (present respondent) and Smt.Amarjit Kaur. The respondent is the daughter of brother-in-law of Jai Singh (brother's daughter of Amarjit Kaur). Plaintiff's case is that Jai Singh died issueless as he was neither blessed with a natural born child nor had taken anyone in adoption. She pleaded that Labh Singh, father of the respondent is a clever and cunning person who in order to grab the property of Hardam Singh prepared a bogus and forged Will in favour of the respondent in collusion with his sister Amarjeet Kaur (second wife of Jai Singh @ Hardam Singh). The said Will was forged when she had gone to her parents by taking undue RSA No.3670 of 2008 -2 - advantage of her absence. The said Will was got registered in the office of Sub Registrar, Kalanwali on 28.10.1997 at Sr.No.101 in favour of the respondent after framing her as an adopted daughter of said Jai Singh @ Hardam Singh. It was further pleaded that Jai Singh expired on 15.4.1999 whereas mutation of his property was sanctioned in favour of the respondent on 24.4.1999 just after 9 days of his death. It was further averred in the plaint that said Jai Singh @ Hardam Singh was also having land measuring 8 kanals 0 Marlas comprised in Sq.No.46 Killa No.1(8-0) at village Raipur which was mutated in favour of the plaintiff and the second wife Amarjeet Kaur in equal share. The plaintiff's allegation is that had there been any Will, the said land would have also been bequeathed by Jai Singh. Thus, the plaintiff has prayed that she be declared as owner in possession of 1/2 share in the land measuring 92 Kanal 9 Marlas being legally wedded wife of Jai Singh @ Hardam Singh and mutation bearing No.3684 sanctioned on 24.4.1999 of land measuring 92 Kanals 9 Marlas in favour of defendant is wrong and not binding upon the rights of the plaintiffs are liable to be ignored and further the Will alleged to have been executed by Jai Singh in favour of the defendant on 28.10.1997 is the result of fraud, misrepresentation, concealment is also not binding upon the rights of the plaintiff in respect of the suit land and prayed for consequential relief of permanent injunction restraining the defendant from illegally and forcibly interfering into her peaceful cultivating possession over the suit land and further for restraining the defendant from alienating the whole of the suit land, including the share of the plaintiff, by way of sale, transfer, exchange, mortgage or creating any encumbrance on the said land. RSA No.3670 of 2008 -3 - The defendant filed written statement on 27.1.2000. Besides raising various preliminary objections, it was alleged on merits that she was taken into adoption by Jai Singh of his own free will and consent and her adoption was acted upon and implemented in all respects. It was pleaded that the Will dated 28.10.1997 was executed by Jai Singh of his own free will and consent and, is, thus valid. It was also averred that Amarjit Kaur is the first wife of Jai Singh @ Hardam Singh who could not bear a child for a period of 35 years, the plaintiff was taken by Jai Singh as his second wife and at that time he deposited Rs.20,000/- in her name in the Bank at Kalanwali on the demand of the plaintiff and her mother Tej Kaur which was later on withdrawn by Tej Kaur. It was further pleaded that plaintiff was given 2 acres of land being 320/1563 share in village Singhpura, Tehsil and District Sirsa and was also given land measuring 4 kanals in that very village in addition to the said 2 acres of land but under the cover of the suit, she wanted to grab the bequeathed property of Jai Singh from the respondent. The plaintiff filed replication to the written statement controverting the stand taken by the defendants. On the basis of the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiffs owner and in possession of ½ share of land measuring 92 Kanals 9 marlas ? OPP. 2. Whether the mutation No.3684 sanctioned on 24.4.99 in favour of the defendant is wrong, incorrect, against law and facts and the same is liable to be ignored and to be corrected in favour of the plaintiff? OPP. 3. Whether the Will executed by Jai Singh alias Hardam Singh in favour of the defendant registered at Serial No.101 on RSA No.3670 of 2008 -4 - 28.10.97 is wrong, incorrect, as a result of fraud and the same is not binding on the rights of the plaintiff ? OPP. 4. Whether the plaintiff is estopped to file the present suit by her own act and conduct? OPD. 5. Whether the suit of the plaintiff is time barred? OPD. 6. Whether the plaintiff has no cause of action against the defendant, hence, the suit is liable to be dismissed? OPD. 7. Relief. 6-A: Whether Sarvjit Kaur was validly adopted by Jai Singh alias Hardam Singh on 2.9.1997? OPD. The trial Court decided issues No.1 to 3 and 6-A in favour of the defendant, issues No.4, 5 and 6 in favour of the plaintiff but dismissed the suit. The plaintiff's first appeal has been allowed. It has been decreed that the adoption deed Ex.D1 is invalid and Will Ex.D2 dated 28.10.97 is not a genuine document. The plaintiff was thus, declared to be the owner in joint possession of half share of the land measuring 92 Kanals 9 marlas. Consequently, mutation No.3684 dated 24.4.99 was held to be wrong and not binding upon the rights of the plaintiff qua ½ share of the suit land. It was made clear that since the plaintiff is held to be in joint possession of the suit land in equal share, she shall be at liberty to get the suit land partitioned through appropriate proceedings. Sh.P.S.Jammu, learned counsel for the defendant-appellant has assailed the finding of the lower Appellate Court on three counts and has raised the following substantial questions of law: 1. Whether consent of second wife is necessary at the time of adoption and also adoption should be termed to be illegal in the absence of the consent of the second wife? 2. Whether registered Will can be ignored even if none of the RSA No.3670 of 2008 -5 - attesting witnesses of the Will in question is examined? 3. Whether suit for declaration is maintainable without seeking relief of possession in view of Section 34 of the Specific Relief Act? Learned counsel for the appellant has vehemently contended that adoption deed Ex.D1 is a registered document vide which the respondent has been taken into adoption with the consent of the adoptive father and one of the adoptive mothers. Learned counsel has further submitted that if the second mother has not consented to the adoption, the adoption cannot be termed to be illegal. This contention of the learned counsel for the appellant runs contrary to the statutory provisions of the Hindu Adoption and Maintenance Act, 1956 (for short the `Act'). It is an admitted fact that on the date of execution of the adoption deed and at the time of adoption of the respondent by Jai Singh, the plaintiff was having the status of his legally wedded wife. It is also an admitted fact on record that at the time of execution of Ex.D1 as well as at the time of adoption, the plaintiff was not present and had not consented to the adoption of the respondent by Jai Singh. In this regard, Section 7 of the Act needs to be mentioned and is reproduced as under : Section 7:- “Capacity of a male Hindu to take in adoption – Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally RSA No.3670 of 2008 -6 - renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.” As per the above provision and explanation thereto, if a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso in which it is provided that the consent of the second wife is not necessary if she has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. In the present case, none of the four disqualifications are attached to the plaintiff. Admittedly she is the legally wedded wife alive at the time of adoption whose consent was not taken at the time of execution of the registered adoption deed Ex.D1 or even at the time of adoption. In this regard, the Supreme Court in the case of Kashibai W/o Lachiram & Another Vs.Parwatibai W/o Lachiram & Others JT 1995 (7) SC 48 has held as under: “It is no doubt true that after analysing the parties evidence minutely the trial Court took a definite view that the defendants had failed to establish that the plaintiff no.1, defendant No.1 and deceased Lachiram had taken the defendant No.3, Purshottam in adoption. The trial Court also recorded the finding that the plaintiff RSA No.3670 of 2008 -7 - No.1 was not a party to the Deed of Adoption as the plaintiff No.1 in her evidence has specifically stated that she did not sign the Deed of Adoption nor she consented for such adoption of Purshottam and for that reason she did not participate in any adoption proceedings. On these findings the trial court took the view that the alleged adoption being against the consent of Kashi Bai the plaintiff No.1, it was not valid by virtue of the provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956. Section 7 of the Act provides that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. It provides that if he has a wife living, he shall not adopt except with the consent of his wife. In the present case as seen from the evidence discussed by the trial Court it is abundantly clear that plaintiff No.1 Kashi Bai the first wife of deceased Lachiram had not only declined to participate in the alleged adoption proceedings but also declined to give consent for the said adoption and, therefore, the plea of alleged adoption advanced by the defendant was clearly hit by the provisions of Section 7 and the adoption can not said to be a valid adoption.” Thus, in view of the aforesaid position, adoption deed Ex.D1 is proved to be illegal and it is held that the defendant has not been legally adopted by Jai Singh vide Ex.D1. The second point is with regard to the genuineness of Will (Ex.D2). Although the said document is a registered document but on a careful perusal of the document of Will (Ex.D2) it is found that witnesses to the said Will were Jeet Singh Harizan Numberdar, resident of village RSA No.3670 of 2008 -8 - Singhpura and Labh Singh s/o Ajmer Singh r/o Singhpura. It was no-where mentioned that Labh Singh s/o Mani Singh r/o Raipur (Sardulgarh) to be the witness of the Will but while appearing as DW3 said Labh Singh s/o Mani Singh deposed that he had witnessed the Will in question. In fact, no attesting witness of the Will in question was examined by the defendant in her evidence, therefore, said Will remained unproved on the record. It is provided in Section 68 of the Indian Evidence Act, 1872 that a document required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 68 of the Indian Evidence Act, 1872 is reproduced as under: “Proof of execution of document required by law to be attested – If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” Similarly Section 63 of the Indian Succession Act, 1925 Clause-C provides that the Will shall be attested by two or more witnesses, RSA No.3670 of 2008 -9 - each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 63 of the Indian Succession Act, 1925 is reproduced as under: “The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” Section 3 of the Transfer and Property Act, 1882 provides that “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in RSA No.3670 of 2008 -10 - the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” In the present case as no attesting witness of the Will has been examined and witness Labh Singh s/o Mani Singh is not the person who has signed the Will as an attesting witness. Thus, the defendant has miserably failed to prove that the Will has been duly executed in accordance with law and is rightly declared to be not valid in law by the first Appellate Court. The last argument raised by the learned counsel for the appellant is that the present suit has been filed by the plaintiff simply for declaration without seeking possession and is not maintainable in view of Section 34 of the Specific Relief Act, 1963. Section 34 of the Specific Relief Act, 1963 is reproduced as under : “Discretion of court as to declaration of status or right – Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in RSA No.3670 of 2008 -11 - existence, and whom if in existence, he would be a trustee.” According to the Proviso to the aforesaid Section, no Court shall make any such declaration where the plaintiff being able to seek further relief then a mere declaration of title, omits to do so. It is no-where provided that when a suit for declaration is filed possession is necessarily to be asked for, however, on a perusal of the plaint, it is very much clear that the plaintiff has sought relief of declaration and consequent permanent injunction as well as any other relief as the Court may deem fit. The prayer clause of the plaint is reproduced as under: “Hence, it is prayed that a decree for declaration to the effect that the plaintiff is owner and in possession of ½ share of the land measuring 92 Kanals 9 Marlas, as fully detailed and described in the heading of the plaint, situated at village Singhpura Tehsil and District Sirsa, as being the legally wedded wife of the deceased Shri Jai Singh alias Hardam Singh son of Ram Ditta Singh, and that the entries of the revenue records such as Mutation No.3684 sanctioned on 24.4.1999 by A.C. Ist Grade, in favour of the present defendant Sarbjeet Kaur for the above said total land measuring 92 kanals 9 marlas relating to Jai Singh alias Hardam Singh (since deceased) is wrong, incorrect, against law and facts, null and void, inoperative ineffective on the rights of the plaintiff and as such the same is liable to be ignored and liable to be corrected in favour of the plaintiff to the extent of her ½ share of the total land, and further the alleged Will alleged to have been executed by Shri Jai Singh alias Hardam Singh in favor of the defendant Sarbjeet Kaur, registered in the office of Sub RSA No.3670 of 2008 -12 - Registrar, Kalanwali at Sr.No.101 on dated 28.10.1997 is also wrong, incorrect, as a result of fraud, misrepresentation, concealment of the facts and as such the same are also liable to be ignored and set aside and as a consequential relief of permanent injunction restraining the defendant from illegally and forcibly interfering into the peaceful cultivating possession of the plaintiff over the suit land, and further from alienating the whole of the total suit land, including the share of the plaintiff, by way of sale, transfer, exchange, mortgage or by creating any bar on the suit land, be passed in favour of the plaintiff and against the defendant with costs of this suit. Any other relief which this Hon'ble court may deem fit and proper in favour of the plaintiff, in addition to it or in the alternative of it may also be granted.” In view of the above discussion, I do not find any question of law much less substantial involved in this appeal for adjudication, therefore, the same is hereby dismissed without any order as to costs. Refer to reporter - Yes (Rakesh Kumar Jain) 14.11.2008 Judge Meenu