Delhi District Court
Sh. Bhupender Kumar S/O Late Sh. Murari ... vs Smt. Radha Rani on 27 February, 2015
IN THE COURT OF SH. RAJEEV BANSAL,
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL,
KARKARDOOMA COURTS, DELHI
MCA. No 66/06
Unique ID No. 02402C0745122006
Sh. Bhupender Kumar s/o Late Sh. Murari Lal,
r/o H. No.18-A, Ram Nagar,
Gali No.4, Krishna Nagar, Delhi 110051. ..... Appellant
Vs.
1. Smt. Radha Rani
w/o Sh. Virender Kumar
2. Smt. Usha Rani w/o Sh. Kishan Swaroop
d/o Sh. Virender Kumar
3. Smt. Sobha Rani w/o Sh. Pradeep Shukla
d/o Sh. Virender Kumar
r/o H-3, Mukh Ram Garden, Tilak Nagar, Delhi. ..... Respondents
Date of institution 08.12.2006
Date of reserving judgment 18.02.2015
Date of judgment 27.02.2015
JUDGMENT
1. This appeal arises against the judgment and decree dated 3.11.06 passed by the court of Ld. Civil Judge whereby suit of the appellant was dismissed. Hence aggrieved, present appeal has been preferred by the MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 1 of 13 appellant/plaintiff.
2. Grievance of the appellant is that the Ld. Trial Court fell into an error in dismissing the suit filed by the appellant inasmuch as it was found by the Ld. Trial Court that appellant was not the adopted son of Sh. Murari Lal Chaubey and Smt. Shanti Devi. It has been stated that the appellant was adopted by Sh. Murari Lal Chaubey and Smt. Shanti Devi vide adoption deed dated 15.6.1975 fulfilling all the conditions as prescribed by the Hindu Adoption and Maintenance Act and execution of the said adoption deed was proved by PW 4 as Ex. PW1/2. The findings written by the Ld. Trial Court contrary to it is perverse and are liable to be set aside.
3. Ld. Counsel for appellant has taken this court through various provisions of Hindu Adoption and Maintenance Act to argue that a valid adoption cannot be cancelled by anybody and reliance placed by the Ld. Trial Court on certain documents wherein name of the natural father of the appellant was shown as father of the appellant will not have the effect of cancellation of the valid adoption. It has been stated that the appellant was adopted by Sh. Murari Lal Choubey and Smt. Shanti Devi from his natural parents Sh. Ram Narain Dixit and Smt. Saroj and handing over and taking over of the appellant had taken place before the Village Panchayat MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 2 of 13 on 15.6.1975 and, therefore, the said adoption was valid in terms of Hindu Adoption and Maintenance Act. It has been stated that by virtue of the adoption, the appellant was entitled to a share in the property of his parents which was denied to him and as such the judgment passed by Ld. Trial Court dismissing the suit suffered from infirmity and illegality.
4. There was no assistance on behalf of defendants/respondents as there was no appearance on their behalf at the time final arguments were heard.
5. I have heard Ld. Counsel for appellant at length and have perused the records alongwith trial court record which was summoned.
6. Before dealing with the appeal, I deem it appropriate to bring on record chronology of events which took place after the impugned judgment was rendered by Ld. Trial Court on 3.11.06. The present appeal was earlier decided vide judgement dated 4.1.08 by the court of Sh. I.S. Mehta (as his lordship then was) whereby impugned judgment was set aside and the matter was remanded to Ld. Trial Court with directions to take evidence afresh on the issues reframed by the court. The respondents challenged that order dated 4.1.08 before the Hon'ble High Court and Hon'ble High Court remanded the matter back to this court with directions that the respondents shall not press their defence based upon a Will MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 3 of 13 alleged to have been executed by Sh. Murari Lal Choubey. It was further observed in the said order that the Appellate Court shall decide the question of leading additional evidence by the present appellant.
7. In pursuance to such observations, an order dated 25.9.12 came to be passed by Ld. Predecessor of this court, whereby prayer of the appellant for leading additional evidence was rejected. This order was challenged by the appellant before Hon'ble High Court and vide order dated 11.9.14, the challenge was dismissed as not pressed. This is how the matter now stands.
8. The appellant had filed the suit in question with the prayer for a decree of partition, possession and permanent injunction on 31.3.05 before the court of Ld. Sr. Civil Judge. The appellant had stated that he was adopted by Sh. Murari Lal and his second wife Smt. Shanti Devi before a Village Panchayat on 15.6.75 and thereafter he lived with Sh. Murari Lal Choubey at the suit property bearing no.F-1/4, Krishna Nagar, Delhi 110051. He stated that after the death of Sh. Murari Lal Choubey and his wife Smt. Shanti Devi, the appellant and Sh.Virender Kumar (son of Sh. Murari Lal Choubey from his first wife) became joint owners of the property in question. He stated that whereabouts of Sh. Virender Kumar were not known since 40 years and he was presumed to be not alive. It is MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 4 of 13 further stated in the suit that in the month of January 1990, two daughters of Sh. Virender Kumar i.e. Smt. Usha Rani and Smt. Shobha Rani quarreled with the appellant, and he left the suit property and started to live in a rented house. He stated that daughters of Sh.Virender Kumar refused to partition the suit property on 15.3.05 and thus, he filed the present suit. In order to prove his case, he himself entered into witness box and proved the adoption deed as Ex. PW1/2. One witness namely Sh. Ram Rattan was examined by the appellant as PW 4 who stated that his signatures appear on the adoption deed as Ex. PW1/2.
9. On the other hand, Smt. Radha Rani examined herself as DW 1 and deposed that her father went missing on 20.7.69 and she proved copy of the complaint given in this regard to police as Ex. DW1/1. She further stated that adoption deed dated 15.6.1975 is false and fabricated document and Sh. Murari Lal Choubey and his wife never adopted any child or the appellant during their lifetime. She stated that Sh. Murari Lal Choubey had executed a Will dated 29.10.1987 which she proved as Ex. DW1/6 in her favour. She further stated that Sh. Murari Lal Choubey expired on 10.7.1997 and after his death the property was mutated in her name by MCD. She further stated that appellant had shown his parentage as of Sh. Ram Narain Dutt (his natural father) in his Electoral List and in the Ration MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 5 of 13 Card and extracts of these documents were proved as Ex. DW1/18 and 1/19.
10. Ld. Trial Court by the impugned judgment observed that except adoption deed Ex. PW1/2, the appellant did not place on record any document to show that he was adopted son of Sh. Murari Lal Choubey. Ld. Trial Court also placed reliance on Ex. DW1/8 and DW1/18, wherein name of father of the appellant was shown as Sh. Ram Narain Dutt (his natural father) and not Sh. Murari Lal Choubey (his adoptive father). Ld. Trial Court thus concluded that there was no valid adoption deed in favour of the appellant and finding was returned that appellant was not an adopted son of Sh. Murari Lal Choubey. Consequently, the appellant was found to have no right, title or interest in the suit property. His suit was thereby dismissed.
11. A perusal of the relevant provisions regarding adoption in Hindu Adoption and Maintenance Act are required to be noted. Chapter II of Hindu Adoption and Maintenance Act deals with the topic of adoption. Section 5 provides that any adoption made in contravention of the provisions of Chapter II shall be void and adoption which is void shall not create any right in favour of any person in the adopting family. As such any person claiming to have been adopted is required to show that his MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 6 of 13 adoption was in consonance with the provisions contained in Chapter II of Hindu Adoption and Maintenance Act and if he fails to satisfy, the adoption shall be void.
12. Section 6 of the Act provided that in order to be a valid adoption, the person adopting should have the capacity and right to take adoption and the said adoption should be in compliance with other conditions mentioned in Chapter II of the Act. Section 7 of the Act provides that any male Hindu of sound mind can adopt a son, with the consent of his wife. Section 8 as it stood before amendment (it was amended w.e.f. 2010) provided that female Hindu who is not married or if married, whose marriage has been dissolved or whose husband has died had the capacity to adopt. After amendment of 2010, it was provided that female hind whose husband is alive, shall adopt a son only with the consent of her husband. In order words, before 2010 amendment, a married female hindu whose husband was alive had no right in her individual capacity to adopt a child and by virtue of Section 7 only a male Hindu could have adopted a child with the consent of his wife.
13. Then Section 11 of the Act provides that for a valid adoption of a son, the adoptive father must not have a hindu son or grand son or great grand son living at the time of adoption. Section 11 sub clause 5 also MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 7 of 13 provides that the same child may not be adopted simultaneously by two or more persons.
14. A careful reading of the aforesaid provisions make it clear that in order to be a valid adoption, the same has to be strictly in accordance with the provisions contained in chapter II of Hindu Adoption and Maintenance Act and in case the said provisions are not complied with, the adoption shall be void.
15. According to the appellant, he was adopted by Sh. Murari Lal Choubey vide adoption deed dated 15.6.1975 Ex. PW1/2 and the said deed was proved by the appellant himself as PW 1 and Sh. Ram Rattan as PW 4 and since handing over and taking over of child had taken place on 15.6.75 itself, the said adoption is valid.
16. The question which arises for consideration is whether the adoption as claimed by the appellant was a valid adoption, complying with the provisions contained in Chapter II of Hindu Adoption and Maintenance Act or not. One of the pre condition for a valid adoption as per section 6 of the Act is capacity and right of the person to take adoption. Section 7 and 11 provides that any male Hindu with the consent of his wife can adopt a son provided that he does not have a living son. In other words, in case adopting father has a living son, he cannot MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 8 of 13 validly adopt any other son.
17. According to the appellant, the adoption took place on 15.6.75. According to DW 1, Ms. Radha Rani, her father Sh. Virender Kumar went missing on 20.7.1969 i.e. about 05 years and 10 months before the alleged deed of adoption.
18. Section 107 and 108 of Evidence Act reads as under:-
107. Burden of proving death of person known to have been alive within thirty years - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
19. Thus a combined reading of these sections show that before expiry of atleast 07 years, a person cannot be presumed to have been dead. Since Sh. Virender Kumar who is admittedly son of Sh. Murari Lal Choubey went missing only on 20.7.1969 and the alleged adoption according to the appellant had taken place on 15.6.1975, it cannot be presumed that Sh. Virender Kumar had expired by that time. There is no judicial declaration or death certificate on record as on 15.6.75 that Sh. MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 9 of 13 Virender Kumar had died by 15.6.75. As such condition contained in section 11 sub clause (1) of Hindu Adoption and Maintenance Act has not been fulfilled and thus the adoption as claimed by the appellant to have been done on 15.6.1975 cannot be called to be a valid adoption and by virtue of section 5 (2), said adoption shall be void.
20. Apart from it, even language employed in the said adoption deed is also not suggestive that the adoption was taken by Sh. Murari Lal Choubey also with his wife smt. Shanti Devi. The language used in Ex. PW1/2 is suggestive as if the adoption has been taken only by Smt. Shanti Devi and not by her husband Sh. Murari Lal Choubey, although signature of Sh. Murari Lal Choubey are said to have been appearing on the said adoption deed. The adoption deed is in Hindi. It has been argued that the adoption deed was prepared by Panchayat of villagers who are not well versed with legal awareness and, therefore, the intention behind the documents may be seen.
21. In this regard Ld. Counsel for appellant relied upon the judgment of Hon'ble Supreme Court in Inderjeet Singh Sial and Anr vs. Karam Chand Thapar and Ors. 1995 SCC (6) 166, where it has been observed as under:-
The commodity goes by its value; not by the wrapper in MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 10 of 13 which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title.
22. As noted previously, as per section 7, a male Hindu could have adopted a son in 1975 and a married female hindu whose husband was alive could not have adopted a son in her individual capacity. PW4's evidence is also not very trustworthy as he identified signatures of Sh. Ram Narain Dixit as that of Sh. Murari Lal Choubey. PW 4 in his cross examination has stated that in Village Panchayat, a register is maintained for recording marriage, death and adoption but no such register was produced by him. The adoption deed does not bear any serial number that its execution was entered into the said register or Village Panchayat to become authentic. The natural parents of the appellants were alive during the pendency of the suit which was decided on 3.11.06 but they were not examined by the appellants for the reasons best known to him. Natural parents of plaintiff would have been best witnesses but they were not even cited as witnesses by the Appellant. The appellant has stated that his natural father died in the year 2010 and his mother had died in the year 2013. Admittedly the adoption deed is not a registered deed which would have been a conclusive proof for validity of the adoption by virtue of MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 11 of 13 section 16. In these circumstances, it cannot be stated that adoption of the appellant as claimed by him by document Ex. PW1/2, was a valid adoption.
23. Ld. Counsel for appellant has relied upon the judgment of Hon'ble Delhi High Court in case Sahib Singh vs. Arvinder Kaur & Ors. dated 03.12.2010 to argue that if name of natural father of appellant is found mentioned in few subsequent documents, the same will not have effect of cancellation of the adoption. The said judgment is of no use to the appellant as in the said judgment the adoption was admitted by the plaintiff and the dispute was with regard to its cancellation and in these circumstances, it was observed that a 'valid' adoption cannot be cancelled by virtue of section 15. However, since in the present case the adoption has not been found to be 'valid', the question of its cancellation does not arise.
24. In Rahasa Pandiani Vs. Gokulananda Panda AIR 1987 SC 962, the Hon'ble Supreme Court has held that in the case of an adoption which is claimed on the basis of oral evidence and 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 MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 12 of 13 there was such an adoption. In Kishori Lal vs. Mt. Chaltibai AIR 1959 SC 504, the Hon'ble Supreme Court has held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers 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.
25. Since, the adoption itself is found to be not valid being not in accordance with the Hindu Adoption and Maintenance Act, I find no infirmity in the impugned judgment by which the suit of the Appellant was dismissed. As a result, the appeal is devoid of any merit and is hereby dismissed, with no order as to cost.
Announced in open court
on 27.02.2015 (RAJEEV BANSAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
MCA No.66/06 Bhupender Kumar vs. Radha Rani & Ors. Page 13 of 13