Delhi District Court
Shri Harbhajan Lal vs Shri Krishan Lal on 21 January, 2017
In the Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
RCA No. 24/16/2009
Unique Case ID No.02402C0192632009
In the matter of:
Shri Harbhajan lal
s/o late Shri Sohan lal
r/o 1/29, Geeta Colony,
Delhi110 031. ....Appellant/Plaintiff
Versus
1. Shri Krishan lal
2. Shri Mahinder Pal
3. Shri Narinder Pal
s/o late Shri Mohan lal
r/o 1/35, Geeta Colony,
Delhi 31. ....Respondents/Defendants
Date of institution : 06.07.2009
Reserved for judgment : 01.12.2016
Date of Judgment : 21.01.2017
JUDGMENT
1. This is an appeal against the impugned judgment dated 27.05.2009 and consequent decree dated 1.6.2009 passed by Shri Pulastya Pramachala: Ld.CCJ:ARC:(East):MM:KKD, Delhi, vide which, the Ld. Trial Court had dismissed the suit of the plaintiff.
2. The said order has been challanged by the appellant on various grounds. It is contended that the findings of the ld. trial court on the issue of adoption is erroneous and contrary to law because the ld.trial court failed to appreciate the law laid down by the Hon'ble Apex Court in AIR 1962 SC 351, 2008(2) Apex Court RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 1 of 11 Judgments 323(SC) and AIR 1978 SC 1051 and wrongly decided the issue of adoption on the basis of these judgments.
3. It is further contended that in Hindu Law, there is no mandatory prohibition against adoption of one's sister and on this ground no adoption can be held invalid and further contended that the ld. trial court had wrongly held adoption invalid on the basis of Ashvalayana's Virrudh Sambhanda, as Ashvalayana's Virrudh Sambhanda is not a very authoritative rule in Hindu Law and the same is not a mandatory prohibition and no adoption or marriage could be held invalid or illegal on the basis of the said rule.
4. It is further contended that the ld. trial court also failed to appreciate that in the written statement the respondent had not taken this ground that the adoption was invalid because appellant was the natural son of the sister of the adoptive father i.e. late Sohan Lal and also failed to appreciate that they all together denied the factum of adoption and alleged that no adoption or adoption ceremony of the plaintiff ever took place.
5. It is further contended that the natural parents of the appellant/plaintiff were capable of giving him in adoption and late Ram Piyari was capable of taking him in adoption and the appellant/plaintiff was capable of being given in adoption and the appellant/plaintiff was given in adoption as per requirements and rituals of the Hindu Law and since his birth, the appellant/plaintiff has always been treated as adopted son of late Shri Sohan Lal amongst all family members and relatives and prayed for calling the record of suit no. 307/2007 titled as RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 2 of 11 Harbhajan lal vs Kishan Lal and others and setting aside the judgment dated 27.5.2009 and consequent decree dated 1.6.2009.
6. Reply to the appeal has not been filed by the respondents.
7. Heard the ld. counsel for the parties and perused the record with written submissions filed.
8. A suit for partition and possession has been filed by the appellant. In the said suit, the appellant claimed that the suit property was in the name of Shri Diwan Singh, vide perpetual lease deed dated 26.8.1960, which was leased out to Shri Diwan Singh, being a refugee. It is further alleged that two of the married sons of late Shri Diwan Singh, namely Shri Sohan Lal and Shri Mohan Lal were killed during riots of 1947 and Shri Diwan Singh alongwith his widowed daughter in laws and other relatives came to Delhi.
9. It is further alleged that Shri Sohan Lal was issueless and as such, Shri Sohan Lal showed his interest and inclination to adopt a son for himself and his wife and Shri Sohan lal during his life time authorized his wife to adopt a son for himself, in event of his unexpected death. Later on, after the death of Shri Sohan Lal, his widow Smt Ram Pyari came to Delhi alongwith her father in law Shri Diwan Singh. It is further alleged that Ram Pyari had no issue from her late husband Shri Sohan Lal, as such, she adopted a male infant child born to Smt Kanso Devi,the present defendant no.5, for her late husband Shri Sohan Lal, as well as,for herself.
10.It is further alleged that new born child was given in adoption RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 3 of 11 on his birth on 19.8.1953 by his natural parents. The actual delivery and acceptance in adoption was made on 19.8.1953 after performance of traditional Hindu Ceremonies and Rites in presence of near relatives namely Shri Hari Ram, Shri Sardari Lal, Shri Charanjit Lal, Shri Devinder Singh and Smt Vimla Devi.
11.It is further alleged that Smt Ram Pyari, the adoptive mother of the appellant also expired in December 1962 and Shri Diwan Singh expired on 17.1.1966 and the appellant remained in the care and custody of Shri Diwan Singh, till his death. It is further alleged that Shri Diwan Singh died intestate, leaving behind his property no. 1/36, Gita Colony and the appellant is entitled to inherit 1/3rd share in the property left by late Shri Diwan Singh, for which the appellant is seeking partition and possession.
12.The suit was opposed by the defendants on various grounds.
13.The legality and validity of adoption itself was challenged. To prove the adoption, appellant examined himself as PW1. The evidence was recorded during the period from 2000 to 2006. Various witnesses have been examined by the appellant, by summoning the record.
14.The appellant has also examined his adoptive mother Smt Ram Pyari as PW9. According to her deposition, appellant was given in adoption to her by his natural parents, which had taken place after about 56 years of the partition. The adoption ceremony was performed at the residence of natural parents of the appellant in her presence. Other relatives were also present.
RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 4 of 11 Sweets were distributed and party was also organized.
15.On 11.9.2009, statement of PW9 Ram Pyari, adoptive mother of the appellant was recorded, at that time , her cross examination was done nil. Thereafter, an application dated 11.12.2002 was filed to recall the plaintiff witnesses PW4 to PW10. This application was taken up on 11.12.2002 and notice of the same was issued. It was fixed for reply and arguments on 07.04.2003. On 07.04.2003, PW7 Shri V K Pushkarma was examined, cross examined and discharged. PW12, PW13 and PW14 were also examined and discharged. No other witness was present. Accordingly, PE was closed. So, in such manner, PW9 did not appear before the court for cross examination. Hence,her testimony cannot be looked into. The appellant did not examine his natural mother. His natural mother was made a party to the suit as defendant no.5.
16.It is not claimed that defendant no.5 was not available during the period of evidence from 2000 to 2006 or that she had already died during the proceedings. Shri Girdhari Lal, husband of defendant no.5, natural father of the appellant, has also not been examined. So, neither the natural parents have been examined, nor, the evidence of adoptive mother can be looked into, in the absence of her cross examination. So, only the evidence left to prove the legality and validity of the adoption is of PW10 Bihari Lal Narang. According to his statement, on 19.8.1953, he was present with his brother Shri Girdhari Lal. A son was born to Smt Kanso Devi w/o Shri Girdhari Lal. Smt Ram Pyari, w/o Shri Sohan Lal came in hurry showing her RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 5 of 11 intention to adopt the newly born, as per promises earlier made and she demanded the child in adoption from his natural parents. Meanwhile, father in law and mother in law of Smt Ram Pyari and other relatives namely Labhu Ram, Smt Hira Devi, Diwan Singh, Lal Devi also gathered there. A pandit was called and the child was given in adoption to Smt Ram Pyari by performing Hindu rites and ceremonies. Sweets were distributed and since then, appellant became son of late Shri Sohan Lal.
17.According to cross examination of Shri Bihari Lal Narang, before partition, while they were doing Car Sewa in a temple at District Shekhu Pura, Shri Sohan Lal had asked his sister that he will adopt the child, if, she will give birth to a son, to which, defendant no.5 Smt Kanso Devi had agreed.
18.In the judgment under challengd, an issue was framed: whether the plaintiff was validly adopted by late Smt Ram Pyari?OPD. Onus to prove this issue was on the plaintiff. The ld. Trial court after discussing the various judgments of the Higher courts held that there cannot be a valid adoption of a son of one's real sister. The relationship of Sohal Lal and Kanso Devi as brother and sister is not in dispute. The ld. Trial court held that the appellant cannot be found validly adopted by Ram Pyari. More so, no valid custom has been pleaded and proved in any manner. So, this issue was decided against the appellant.
19.In the appeal, findings of ld. Trail Court on this issue has been challenged. It is specifically claimed that the findings of the ld. trial court on the issue of adoption is erroneous and contrary to law as the ld.trial court failed to appreciate the law laid down by RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 6 of 11 the Hon'ble Apex Court in AIR 1962 SC 351, 2008(2) Apex Court Judgments 323(SC) and AIR 1978 SC 1051 and wrongly decided the issue of adoption on the basis of these judgments.
20.It is further claimed that the ld. trial court wrongly held that the adoption was invalid, as in Hindu Law, there is no mandatory prohibition against adoption of one's sister son and on this ground no adoption can be held invalid. It is also claimed that the ld. trial court had wrongly held adoption invalid on the basis of Ashvalayana's Virrudh Sambhanda, as Ashvalayana's Virrudh Sambhanda is not a very authoritative rule in Hindu Law and the same is not a mandatory prohibition and no adoption or marriage could be held invalid or illegal on the basis of the said rule.
21.It is further claimed that no such plea of Ashvalayana's Virrudh Sambhanda was raised by the defendants in their written statement, but have denied the factum of adoption and alleged that no adoption or adoption ceremony of the plaintiff ever took place. It is further claimed that in absence of any such plea taken in the written statement, the defendants cannot be allowed to argue the objections for the first time at the time of final arguments.
22.It is also claimed that parties belong to Punjab and there is custom to adopt son of a sister. But since the defendant did not take this objection in the written statement then plaintiff could not plead or give any evidence on this aspect. It is further claimed that the natural parents of the appellant/plaintiff were capable of giving him in adoption and late Ram Piyari was RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 7 of 11 capable of taking him in adoption and the appellant/plaintiff was capable of being given in adoption and the appellant/plaintiff was given in adoption as per requirements and rituals of the Hindu Law and since his birth, the appellant/plaintiff has always been treated as adoptive son of late Shri Sohan Lal amongst all family members and relatives. So, the findings of the ld. Trial court on issue no. 1 be set aside.
23.During the course of arguments, the respondent filed certified copy of Family Settlement, which had taken place in another matter, filed by Smt Kanso Devi,natural mother of the appellant against all these respondents. According to this Family Settlement, which has been reduced into writing on 21.6.2010, between Shri P R Narang and the present appellant, it has been claimed that both the parties are son of late Shri Girdhari lal and late Smt Kanso Devi. This document has not been denied by the appellant in any manner. So, in this document itself, the appellant had claimed himself to be the son of late Shri Girdhari Lal and late Smt Kanso Devi and not of late Shri Sohan Lal and Ram Pyari. The property under reference is 1/29, Geeta Colony, Delhi, which was owned by Shri Girdhari Lal, who died intestate. According to this Family Settlement, Kanso Devi died on 11.12.2008. Which shows that she was alive when the evidence was recorded during the period 2000 to 2006, before the ld. Trial court in the suit against the judgment of which, the present appeal has been filed.
24.According to the Family Settlement, Girdhari lal died intestate and Kanso Devi also died. So, her share derived upon Shri P R RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 8 of 11 Narang and the present appellant. According to this Family Settlement, Shri P R Narang got the ground and first floor of the property bearing no. 1/29, Geeta Colony, Delhi and 2 nd and 3rd floor have been received as share by the present appellant, who further sold the same through Shri P R Narang and the present appellant received the entire sale consideration of 2nd and 3rd floor of property bearing no. 1/29, Geeta Colony, Delhi.
25.The property involved in the suit, of which the present appeal has been filed is 1/29, Geeta Colony, Delhi, which was owned by Diwan Singh. According to para 5 of this Family Settlement arrived at between Shri P R Narang and Shri Harbhajan Lal ,the present appellant, it was agreed that whatever share Smt Kanso Devi has or is proved to have in property bearing no. 1/29, Geeta Colony, Delhi, Harbhajan Lal i.e. the present appellant will not stake his claim in the said property and said share, if any, shall exclusively and absolutely belong to Shri P R Narang.
26.It has also been mentioned in para 6 of the Family Settlement that even if, Shri Harbhajan Lal i.e the present appellant is held to be not adopted son of Shri Sohan Lal, the appellant Harbhajan Lal will not claim any right, as a natural son of Smt Kanso Devi, so far as claim in the property bearing no. 1/36, Geeta Colony, Delhi is concerned.
27.So, under such circumstances, by obtaining the share in the property of his natural father, the appellant himself has denied his status of adopted child of late Shri Sohan Lal and late Smt RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 9 of 11 Ram Pyari.
28.The appeal has been filed by challenging the opinion of the ld. Trial court, in respect of the judgments relied upon by the ld. Trial court, which according to the ld.counsel for the appellant are not applicable to the facts and circumstances of the present suit.
29.I have gone through the judgments. In my view, the judgments have no other meaning except as referred and drawn by the ld. Trial court, while deciding issue no. 1. Despite the natural parents and adoptive mother being available, the appellant failed to examine them before the ld. Trial court, to prove the adoption. Rather, one another witness has been examined.
30.Smt Ram Pyari was available during the period 20002006, as she had died in the year 2008. Smt Ram Pyari also not been produced for cross examination. Even, Shri Girdhari Lal was available till 1.8.2000, when he expired. So, the appellant willfully did not examine the material witnesses. So, in the absence of availability of the material witnesses, whom the appellant did not examine. Another witness PW10 Shri Bihari Lal Narang cannot be relied upon.
31.In view of above, the contentions of ld.counsel for the appellant are not fortified in any manner. The grounds taken in the appeal to challenge issue no.1, are baseless and meritless.
RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 10 of 11 Accordingly, appeal is dismissed. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. The record of the trial court is ordered to be returned.
Announced in open Court on : 21.01.2017 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 11 of 11 RCA: 34/16/2009 Harbhajan Lal vs Kishan lal and others 12 of 11