RSA No.3743 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3743 of 2009 (O&M) Date of decision: 7.12.2010 Satnarian ......Appellant(s) Versus Smt. Khazani and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Kansal, Advocate for the appellant. Mr. Arihant Jain, Advocate for the respondents. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration, permanent injunction and possession was dismissed, holding that the appellant was not the adopted son of Smt. Khazani and judgment and decree dated 30.7.1984 suffered by her in favour of other respondents was legal. As per the averments, the defendants were recorded as owners in possession of the 1/3rd share each in agricultural land bearing khasra No.161 Khatoni No.211 measuring 171 kanals 10 marlas situated in the revenue estate of village Kurar, Tehsil Safidon District Jind as per jamabandi for the year 1997-98. Krishan Devi-defendant No.2 alleged herself daughter of Ganga Bishan but in fact she was not daughter of Ganga Bishan and was born, out of illicit relations of defendant No.1 and one Rameshwar Dass son of Mansa Ram, on 9.10.1951, whereas Sh. Ganga Bishan died on 4.6.1949. After the death of Ganga Bishan, Om Parkash son of Ganga Bishan became owner in possession of the suit land as he was only son of Ganga Bishan. Om Parkash also died and RSA No.3743 of 2009 (O&M) 2 Rameshwar Dass son of Mansa Ram inherited the estate of Om Parkash vide mutation No.329 sanctioned on 27.8.1966 on the basis of a Will dated 9.8.1966 in favour of Rameshwar Dass. Rameshwar Dass sold some property to Risal Singh etc. vide sale deed dated 4.10.1968 and also gifted some land on 10.11.1966 and mortgaged a part of land on 7.7.1967 and 17.1.1968. Defendant No.1 filed a Civil Suit for possession bearing No.394 dated 31.8.1968 in the Court of Senior Sub Judge, Jind titled as Smt. Khazani versus Rameshwar Dass, which was decided in her favour on 28.10.1970. It is the further case of the appellant that Khazani adopted plaintiff No.1 on 1.6.1969 as per custom of brotherhood after performing the ceremony. Thereafter, adoption deed was executed and registered by defendant No.1 in favour of the plaintiff on 7.6.1969 in the office of Sub Registrar, Safidon. After the adoption of the plaintiff by Smt. Khazani, he remained with her as her son. The plaintiff had come to know that defendant No.1 had transferred 2/3rd share of the above said land in favour of defendants No.2 and 3 on the basis of collusive decree passed in Civil Suit No.404 instituted on 23.7.1984 decided on 30.7.1984. Defendant No.1 was not competent to transfer 2/3rd share of suit land in favour of defendants as per condition of adoption deed dated 7.6.1969 according to which she had agreed not to alienate ½ share of suit property in earlier litigation with Rameshwar Dass. The defendants were requested to transfer the suit land in favour of the plaintiff but to no avail, hence, necessity to file the suit arose. In the written statement, defendant No.1 had submitted that defendants were owners in possession of suit land. Sat Narian had been wrongly shown as son of Khajani whereas he was son of Rameshwar Dass, resident of Gohana. He was never adopted by defendant No.1. RSA No.3743 of 2009 (O&M) 3 The adoption deed dated 7.6.1969 was forged and fake document. Various legal objections were also raised and dismissal of the suit was prayed. Defendants No.2 and 3 also filed written statement on the similar lines. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is adopted son of Smt. Khajani as alleged in the plaint? OPP 2. Whether the judgment and decree dated 30.7.1984 in civil suit No.404 titled as Krishna Devi etc. versus Khajani is illegal, null and void and not binding on the rights of the parties? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the suit is time barred? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 8. Relief.” Both the parties led their respective evidence. The trial Court vide judgment and decree dated 10.10.2007 decided issues No.1 and 2 against the plaintiff and issues No.3 to 5 in favour of the defendants. Issues No.6 and 7 were not pressed. Resultantly, the suit was dismissed. RSA No.3743 of 2009 (O&M) 4 Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court which was also dismissed. While dismissing the appeal, the Lower Appellate Court observed as under: “From a perusal of the records of the case it reveals that the adoption deed dated 7.6.1969 Ex.P1 is not duly proved. The law is well settled that to constitute an adoption, there should be some overt act i.e there should be actual handing over of the child with intention to transfer the child from the family of his birth to family of his adoption. It is generally seen that religious ceremonies are usually performed although same is not legally required. However, giving and taking of the child is a requirement and is an absolute condition for valid adoption. In the case in hand the plaintiff/appellant had not examined any witness, who could explain that Sat Narian was given by his father to Khazani and that Khazani had taken Sat Narian in adoption and that such ceremonies were performed. Even Sat Narian, who has appeared in the witness box as PW3 has deposed that he was 10 years old at the time of adoption and he deposed that Khazani had performed karewa marriage with Rameshwar Dass, who is the father of plaintiff Sat Narian. He also admitted the fact that there is no earlier voter card or ration card in which his father's name is shown as Ganga Bishan. He also stated that he does not know as to how he had signed the adoption deed RSA No.3743 of 2009 (O&M) 5 and he also admitted the fact that when they had purchased the stamp papers then his name was mentioned to be son of Rameshwar Dass. Thus, learned lower court has rightly not placed reliance on the adoption deed Ex.P1. It is not proved on record that the plaintiff was present at the time of any ceremony or that villager or relative were present during the ceremony of adoption. It is also not proved as to who had singed the adoption deed. No independent witness has been examined to prove that the ceremony of giving and taking Sat Narian in adoption was taken place. As per the Hindu Adoption Maintenance Act, 1956, the adopted child shall not divest any person of any estate which vested in him or her before the adoption subject to any agreement to the contrary took place between them. Thus, Ex.P1 i.e. the adoption deed being an agreement should have been proved by examining the attesting witnesses but in the case in hand no attesting witness of the adoption deed Ex.P1 had been examined. Even the names of the attesting witnesses have not been disclosed. Furthermore, the adoption deed Ex.P1 is surrounded with suspicious circumstances as the defendant Khazani had filed a civil suit No.394 dated 31.8.1968, which was decided on 28.10.1970 against Rameshwar i.e. the natural father of the plaintiff. In the aforesaid suit it was held that plaintiff had never performed any karewa with Rameshwar after the death of Ganga Bishan. Consequently, the plaintiff had RSA No.3743 of 2009 (O&M) 6 inherited the property of Om Parkash after the death of Om Parkash. Thus, the testimony of the plaintiff is doubtful as in this case he had stated that Khazani had performed Karewa with Rameshwar and that the court has already held that no karewa was performed by Khazani with Rameshwar. It is evident that during the pendency of the aforesaid civil suit that Ex.P1 i.e. adoption deed was executed which was not possible in such circumstances as a dispute with regard to the land was already going on between the father of the plaintiff and the defendant, then how it was possible that khazani would have liked to adopt the child of Rameshwar Dass. Therefore, the execution of Ex.P1 i.e. the adoption deed is doubtful. Moreover, as has been rightly held by the learned lower court that it is admitted fact that Khazani had suffered a decree in favour of Krishna in the year 1984, therefore, the suit of the plaintiff was hopelessly time barred as mutation Ex.P5was executed in 1994 and there is no explanation on behalf of the plaintiff as to why these facts were not in his knowledge. Thus, the learned lower court has rightly held that suit was not maintainable. However, evidence which has been led on record on behalf of the plaintiff/appellant is also not of any help because PW1 is a Record Keeper, who had brought the copy of judgment dated 30.7.1984 in the suit titled as Krishna Devi vs. Khazani. Sh. B.R. Saini, Adv. PW2 had proved written statement (Ex.PW2/A), copy of statement (Ex.PW2/B) RSA No.3743 of 2009 (O&M) 7 and copy of plaint (Ex.PW2/C) in the aforesaid civil suit No.404 of 23.7.1984 titled as Krishna Devi vs. Khazani. PW4 Hari Shankar had proved the certified copy Ex.PW3/A and Ex.P1 and thus he was a formal witness. Sh. K.K. Mittal, Advocate who had appeared as PW5 has simply deposed that his father Sh. Amar Singh Document Writer, who had since died had typed the adoption deed 7.6.1969 and he proved its copy as Ex.PW3/A and he deposed that he identified the hand writing of his father. Sh. R.K. Jain Adv. has proved the written statement Ex.PW6/A and Ex.PW6/B and thus, his testimony is also of not much importance. Therefore, in view of the evidence on record, learned lower court has rightly decided issues No.1 and 2 against the plaintiff and issues No.3,4 and 5 against the defendants. Although, issues no.6 and 7 were not pressed.” Still not satisfied, the plaintiff has approached this Court by way of instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) How a registered adoption deed is to be proved, particularly in view of conclusive presumption under section 16 of Hindu Adoptions and Maintenance Act, 1956? (ii) Whether a registered adoption deed is required to be proved as if it is a will, particularly in view of clear legislative intention which segregates the two and attaches different presumptions to each of them? RSA No.3743 of 2009 (O&M) 8 (iii) Whether the appellant is legally adopted son of Smt.Khazani, if yes, to what effect? (iv) Whether the respondent No.1 is entitled to alienate her property, in violation of the terms of registered adoption deed? (v) Whether the appellant is entitled to the relief claimed for?” At the motion hearing, counsel for the appellant contended that the adoption deed dated 7.6.1969 which is a registered document had been ignored by the Courts below solely on the ground that the presumption of necessary ceremonies as required under the law does not stand established. Learned counsel by placing reliance upon Section 16 of the Hindu Adoption and Maintenance Act, contended that presumption of law was attached regarding existence of the said registered document and thus, on the basis of the aforesaid argument, notice of motion was issued. During subsequent hearing, it was pointed out by the counsel for the respondent that the adoption deed was not proved in accordance with law as the appellant was not given any permission by the Court to prove the same by way of secondary evidence. The aforesaid objection was controverted by the learned counsel for the appellant citing the judgment dated 19.9.2003 passed in Civil Revision No.998 of 2002 whereby the appellant was allowed to prove the aforesaid adoption deed by way of secondary evidence without prejudice to the rights of the respondents to raise all contentions available to them about the proof and existence of the adoption. In view of the aforesaid facts, there is no dispute that the adoption deed Ex.P1 was proved in accordance with law. However, it may be noticed that it is not in dispute that respondent-Khazani was absolute RSA No.3743 of 2009 (O&M) 9 owner of the suit property and therefore, even assuming for the sake of arguments that the appellant was adopted son of defendant No.1, still there was no bar upon her to dispose of her property which belongs to her absolutely. However, learned counsel for the appellant has further argued that in view of the specific condition mentioned in the adoption deed according to which half share of the land which Khazani got in civil Suit titled as Khazani versus Rameshwar Dass will not be alienated and the appellant, who is beneficiary of this condition, was entitled to the decree, as prayed. The argument raised by the learned counsel for the appellant is without any merit as Khazani being the absolute owner of the suit property was free to dispose of her property in any manner she liked. If any right flows from the specific condition of the adoption deed putting an embargo on her rights restraining her not to alienate the half share of the suit land, the same cannot be enforced by the appellant in the present suit as neither any such pleadings were made nor any argument was raised in this regard before the Courts below. In view of the aforesaid finding, I find no merit in this appeal. Thus, no substantial question of law arises. Dismissed. December 7, 2010 (RAKESH KUMAR GARG) ps JUDGE