Delhi District Court
Devender Singh vs Master Jatin Maan on 31 July, 2024
IN THE COURT OF MS NEHA MITTAL, ASCJ-JSCC-GJ,
NORTH -WEST DISTRICT, ROHINI COURTS, DELHI
CS SCJ No.59602/2016
1. SH. DEVENDER SINGH
S/o Late Sh. Bhim Singh
2. SH. ARVIND KUMAR
S/o Late Sh. Ranbir Singh
BOTH RESIDENTS OF :
H.No.727, Village Khera Khurd,
Delhi-110082. .....Plaintiffs
Versus
1. MASTER JATIN MAAN (MINOR)
S/o Sh. Ramesh Kumar
Minor through his Father/Natural
Guardian Sh. Ramesh Kumar
2. SH. RAMESH KUMAR
S/o Sh. Bhim Singh
3. SMT. RAJBALA
W/o Sh. Ramesh Kumar
ALL RESIDENTS OF :
H.No.727, Village Khera Khurd,
Delhi - 110082. ......Defendants
Date of Institution : 29.09.2012
Date of Reserving : 29.07.2024
Date of pronouncing Order : 31.07.2024
SUIT FOR CANCELLATION AND DECLARATION OF THE
ADOPTION DEED DATED 13.01.2009 AND FOR
PERMANENT INJUNCTION.
JUDGMENT
1. Vide this judgment, I shall decide the present suit for Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:34:57 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.1/20 cancellation and declaration of the adoption deed dated 13.01.2009 and permanent injunction filed by the plaintiffs against the defendants.
1.1 The brief facts of the present case are that Late Sh.
Bhim Singh was the co-owner of the agricultural land bearing Khasra No.32/1/2 (1-2), 10(4-16), 11(4-160, 33/6(4-16), 7(2-8), 13(3-7), 14(4-16), 15(4-16), 16(4-16), 17(4-16), 18 (4-16), 19(1-
8), 23(3-10), 16),25/1(4-1) 24 (4- and 171 (0-12) total measuring 59 bighas 13 biswas and 12 Biswani situated in the revenue Estate of Village Khera Khurd, Delhi having 3/10 share in the abovesaid land. Sh. Bhim Singh was the father of the plaintiff No.1 and defendant No.2. The plaintiff No.2 and defendant No.1 are the grandsons of Late Sh. Bhim Singh. Sh. Bhim Singh died in the year 1980 leaving behind his legal heirs namely Sh. Ranbir Singh (now deceased), Sh. Devender Singh (plaintiff), Sh. Satish (now deceased), Sh. Ramesh Kumar (defendant no.2) and Sh. Prem.
1.2 It is stated that Sh. Satish, the unmarried son of Late Sh. Bhim Singh had expired on 12.01.2012 who has no legal heir except his brothers. His brother deceased Ranbir Singh had moved an application before the Ld. Tehsildar, Alipur for mutation of the share of late Sh. Satish in the aforesaid land in the name of all brothers including himself. However, defendant no. 2 filed objections before the Ld. Tehsildar stating that the share of Late Sh. Satish in the aforesaid land cannot be mutated in the name of all brothers equally because late Sh. Satish Kumar during his lifetime adopted the biological son of the defendants no.2 and 3 namely Master Jatin Maan i.e. defendant no.1 in the Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:35:06 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.2/20 year 2009 through an alleged adoption deed dated 13.01.2009 duly registered with the office of Sub-Registrar-VI-B, New Delhi. It is further stated that when this fact came to the knowledge of the plaintiffs, the plaintiffs inquired about the alleged adoption deed dated 13.01.2009 and it was found that the defendants no.2 and 3 had prepared a false and fabricated adoption deed to deprive the plaintiffs from their legal rights in the share of late Sh. Satish in the abovesaid land. It is stated that Late Sh. Satish did not adopt defendant no.1 as his son ever. The defendants no.2 and 3 are having only one son and a daughter who are residing with them since their birth. It is stated that Late Sh. Satish had never gone to the Sub-Registrar Office and had not signed any document in favour of the defendants no.2 and 3 regarding the adoption of defendant no.1.
1.3 It is further stated that the plaintiffs came to know from the reply received by them to their RTI application that defendant no.1 was got admitted in G.D Convent school, Khera Khurd, Delhi by the defendant no.2 on 10.04.2010 and in his admission form, he mentioned the name of parents as defendants no.2 and 3.
1.4 It is stated that the defendant no.2 is a vagabond and has already sold his share measuring 3 bighas 11 biswas and plot of 320 Sq. Yds. in the aforesaid land in the year 2007 and now he has no means for his livelihood and hence he has an evil eye upon the share of brothers of Late Sh. Satish.
1.5 It is further that Late Sh. Satish was unmarried and used to reside in the fields where a small room was constructed Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:35:16 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.3/20 by him. The defendant no.1 never lived in the care and custody of late Sh. Satish but always remained in the custody of the defendants no.2 and 3. Neither any ceremony of giving and taking of the physical custody of the child/defendant no.1 ever occurred in the presence of the family members or relatives nor any other rituals were performed which are generally performed at the time of adoption of a child in the family.
1.6 It is further stated that the alleged adoption deed is totally a false, forged, fabricated and manipulated document which has never been signed by the Late Sh. Satish Kumar and his signatures on the same were forged. It is further stated that in the month of November 2008, late Sh. Satish Kumar told the plaintiff no.1 that defendant no.2/Ramesh Kumar had forcibly taken his signatures on some blank papers when he was in drunken state and that the said papers were returned by defendant no.2 after great difficulty only when he was threatened of police action. The conduct of the defendant no.2 shows that he has malafide intentions since very beginning to grab the share of late Sh. Satish and to fulfill his ill intentions, he in collusion with the defendant No.3 prepared the alleged forged and fabricated adoption deed.
1.7 It is further stated that now the defendants no.2 and 3 are trying to get mutated the share of Late Sh. Satish in the name of defendant no.1 by filing the objections before Tehsildar, Alipur, Delhi. The defendant No.2 and 3 on the basis of the alleged adoption deed want to sell/transfer the share of Late Sh.
Satish to some prospective buyers. On 09.09.2012, defendant no.2 and 3 came to the suit property with some prospective Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:35:26 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.4/20 buyers/property dealers to finalize the deal of sale and purchase. When this fact came to the knowledge of the plaintiff No.2, he made a telephonic call to the plaintiff No.1 and narrated the whole facts to him. On the same day evening, the plaintiffs went to the defendants and asked about the said incident. The defendants No.2 and 3 started quarreling with the plaintiffs by saying that they have the registered adoption deed in favour of their son and no one can son stop them from selling/transferring the share of Late Sh. Satish. Hence, the present suit has been filed.
1.8 By way of filing of the present suit, the plaintiffs have prayed for passing following decree :-
"(a) pass a decree of cancellation in favour of the plaintiffs and against the defendants thereby declaring the alleged adoption deed dated 13.01.2009 allegedly executed by the defendants no.2 and 3 in favour of Late Sh. Satish allegedly registered with the office of Sub-Registrar VI-B, New Delhi vide Regn. No.9, in Addl. Book No.3, Volume No.125 on pages 110 to 112 on dated 16.01.2009, as null and void document and not binding upon the plaintiffs and other brothers of Late Sh. Satish;
(b) pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendant No.1, his parents/defendants no.2 & 3, their agents, assignees, accomplices, successors, legal representatives etc. to sell/transfer or alienate or create any third party interest in the land bearing Khasra No.32/1/2 (1-2), 10(4-16), 11(4-160, 33/6(4-16), 7(2-8), 13(3-7), 14(4-16), 15(4-16), 16(4-
16), 17(4-16), 18(4-16), 19(1-8), 23(3-10), 24(4-16), 25/1(4-1) and 171 (0-12) total measuring 59 bighas 13 biswas and 12 Biswansi situated in the revenue Estate of Village Khera Khurd, Delhi to the extent of share of Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:35:35 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.5/20 Late Sh. Satish on the basis of the alleged adoption deed dated 13.01.2009;
(c) pass any other order or orders, which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant."
2. Written statement has been filed on behalf of defendants stating that the plaintiffs have not approached the court with clean hands and concocted the false story in the present suit for taking the favorable relief, hence, the plaintiffs are not entitled for any relief from this court and the suit is liable to be dismissed.
2.1 That the present suit does not disclose any cause of action against the defendants and is liable to be dismissed under order 7 rule 11 (a & d) CPC.
2.2 That this court has not got territorial jurisdiction to entertain and try the present suit, as the plaintiffs have sought the relief permanent injunction in respect of agricultural land which falls within the jurisdiction of Revenue Court i.e. The Revenue Assistant, who is the competent authority to entertain any proceedings, application, suit in respect of agricultural land, hence, the suit is barred by Section 185 of Delhi Land Reforms Act as Serial No.18 in Schedule-I, Column No.3, the "suit for injunction" falls the within jurisdiction of Revenue Assistant.
2.3 That the plaintiffs as well as defendants are the bhumidhar of the suit property and the plaintiff is trying to seek the relief of declaration of bhumidari rights/share of the agricultural land under the garb of present suit for declaration Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:35:46 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.6/20 and injunction, hence, the present suit for injunction is not maintainable.
2.4 That the plaintiffs wants to get the partition by declaring their respective share in the agricultural land/suit property by seeking the relief of restraining order against creating the third party interest and as such, the present suit for injunction is also barred by Section 41 (h) of the Special Relief Act, 1963.
2.5 That the plaintiffs are not having the possession of the suit property i.e. agricultural land and hence, he would not be entitled for the relief of injunction.
2.6 That the present suit is being filed by the plaintiffs only to harass the defendants and to grab the share of the minor child i.e. defendant no.1 which has been acquired and inherited by him from his deceased adoptive father late Sh. Satish Kumar. It is stated that the adoption deed in question was executed in the presence of two witnesses namely Sh.Anil Kumar and Sh.Krishan Kumar and a simple adoption ceremony took place in the presence of the witnesses, family members, relatives and also plaintiffs, hence, the present suit is frivolous and as such liable to be dismissed.
2.7 That the adoption deed dated 13.01.2009 is true and valid and the same was got registered before the competent authority in presence of witnesses and the same cannot be cancelled in view of the section 15 of the Hindu Adoption and Maintenance Act.
2.8 That the present suit is under valued and the plaintiffs have not proper valued the suit for the purpose of jurisdiction, as Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:36:02 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.7/20 the relief of injunction is sought against the agricultural land which is total measuring 59 bighas 13 biswas and 12 biswansi situated in the revenue estate of Village Khera Khurd, Delhi to the extent of share of late Sh.Satish, the proper court fee not paid, and as such the present court is not having pecuniary jurisdiction to entertain and try the present suit and the same is liable to be dismissed. All other averments made in the plaint have been denied and it is prayed that the present suit be dismissed.
3. Replication was filed by the plaintiff in which the averments made in the written statement were denied and those made in the plaint were reiterated.
4. After completion of pleadings, following issues were framed vide order dated 22.09.2014 :-
1. Whether the plaintiff is entitled to decree of cancellation, as prayed? (OPP)
2. Whether the plaintiff is entitled to decree of permanent injunction, as prayed? (OPP)
3. Relief.
5. In evidence, plaintiff no.1 examined himself as PW-1. He tendered his evidence by way of affidavit as Ex. PW-1/A. He relied upon following documents:-
1) Copy of Khatoni as Ex.PW-1/1.
2) Copy of RTI application, its reply and admission form of defendant no.1 as Ex.PW-1/2 to Ex.PW-1/4.
6. PW-1 was duly cross examined by Ld. Counsel for the defendants. During cross examination, he stated that he does not know whether Master Jatin was admitted for the first time in the Digitally signed by NEHA NEHA Date:
MITTAL MITTAL 2024.07.31 16:36:14 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.8/20 school in the year 2008. He denied the suggestion that the impugned adoption deed was in his knowledge and executed with his consent. He further denied the suggestion that late Sh. Satish was residing with the defendants since 2001 till his death in the year 2012.
7. Plaintiffs also examined PW-2 Sh. Ashok Kumar, Licensing Officer, G.D. Convent School, Khera Khurd, Delhi who has brought the summoned record i.e. admission register Ex.PW-2/1 having the relevant entry at no.114. He also brought photocopy of admission form and copy of birth certificate Ex.PW-2/2(Colly).
8. Plaintiffs also examined one family friend as PW-3 Sh.Mandeep who has tendered his evidence by way of affidavit as Ex.PW-3/A. During cross examination, he admitted that no blank documents were got signed by defendant no.2 from late Satish in his presence and that he had heard the same from deceased Ranvir. He denied the suggestion that late Satish used to live at home with defendant no.2.
9. Plaintiffs also examined PW-4 Sh. Swarn Kumar, Halka Patwari, Office of SDM, Narela, Delhi who brought summoned record i.e. Khatoni of Khata No.81/70 of Village Khera Khurd which is Ex.PW-4/1 (OSR).
10. Plaintiffs also examined PW-5 Sh. Pushpinder Arora, LDC, AC-01, Narela, Delhi who brought summoned record i.e. reply of RTI No.AC01/914/2015 dated 17.12.2015 and the attested copy of the same is Ex.PW-5/1.
11. Thereafter, P.E. was closed vide order dated 18.10.2016. Digitally signed by NEHA NEHA MITTAL MITTAL Date:
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12. In defence evidence, defendant no.2 examined himself as DW-1. He tendered his evidence by way of affidavit Ex.DW- 1/1. He relied upon the document Ex.DW-1/A i.e. Adoption Deed dated 13.01.2009 registered on 16.01.2009 before the Sub- Registrar Office. During his cross examination, he stated that he had sold his share of agricultural land in the year 2008. He admitted that one residential room has been constructed in the agricultural land left by his father. He denied the suggestion that late Satish was residing with their mother. He stated that his all brothers except Satish were having their separate portions and were residing in their respective portions. He stated that he does not remember when the father's name of Master Jatin was changed in the school. He stated that he has not placed on record any document bearing the signatures of late Satish except the alleged adoption deed. He admitted that he has not been appointed as guardian of Master Jatin by any competent court after the death of Sh. Satish. He admitted it to be correct that Master Jatin is residing with him and his wife in his house since birth and that he is bearing all the expenses of Jatin since beginning. He stated that he alongwith his wife, Master Jatin, Satish, Anil, Krishan and the deed writer went for the preparation of alleged adoption deed. He stated that till 2001, Satish resided with his mother in parental home and after 2001, he used to reside in his respective portion. He denied the suggestion that late Satish never signed the adoption deed.
13. Defendants also examined DW-2 Sh. Anil Kumar who has tendered his evidence by way of affidavit Ex.DW-2/1. During cross examination, he stated that he is not aware whether any Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:36:35 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.10/20 evidence affidavit has been filed by him or on his behalf in the court. He stated that he was called by defendant no.2 to depose in the court. He further stated that late Satish used to live alone at ground floor portion in his house. He admitted it to be correct that since birth, Master Jatin is continuously residing with his natural parents. He stated that he has signed the adoption deed as a witness. He stated that no function of giving and taking ceremony was done in the house of late Satish and defendant no.2.
14. Defendants also examined DW-3 Sh. Hukum Singh, Junior Assistant, Sub-Registrar 6B, Narela, Delhi who has brought summoned record i.e. adoption deed presented on 13.01.2009 Ex.DW-1/A.
15. Thereafter, D.E. was closed vide order dated 09.01.2019 and matter was listed for final arguments.
16. I have heard the arguments addressed by Ld. Counsels for both the parties and perused the record.
ISSUE WISE FINDINGS Issue no.1 Whether the plaintiff is entitled to decree of cancellation, as prayed? (OPP)
17. The burden to prove this issue is upon the plaintiff.
18. In the present case, the plaintiffs have prayed for the cancellation of the adoption deed stating that the same is a forged document and has been created by the defendants to usurp the share of late Satish in the agricultural land left by their father. It Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:36:45 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.11/20 is further argued that the Voter ID card number of Lt. Satish as mentioned on adoption deed Ex. DW-1/1 is wrong and the same has been proved from RTI reply Ex. PW-5/1 (colly). He has relied upon judgment AIR 1994 Bombay 235, AIR 1998 Orissa 49, AIR 2006 SC 3275, AIR 1985 Patna 151, AIR 1989 Madras 334, AIR 1987 SC 962, AIR 1994 NOC 42 (Orissa), AIR 1990 NOC 13 (Orissa) and AIR 1996 Orissa 38 to support the argument that the adoption had not taken place validly. Reliance has also been placed upon AIR 1915 Cal 423 (DB) and AIR 1980 Allahabad 85 in support of the argument that the plaintiff has locus-standi to file the present suit for cancellation. On the other hand, counsel for defendants have argued that the adoption deed is a registered document and hence, as per Section 16 of Hindu Adoption and Maintenance Act, a presumption of its validity should be raised. It is further argued that the plaintiff has no locus to file the present suit and that the suit is not maintainable in the present form as the plaintiff should have sought the relief of declaration and not cancellation of adoption deed. He has relied upon judgment titled as Dr. M.A.M. Ramaswami Chettiar Vs. Tehsildar passed by Hon'ble High Court of Madras on 13.01.2022, Deu & Ors. Vs. Laxmi Narayan & Ors. passed by Hon'ble Supreme Court of India on 01.08.1996, Veerabhadrayya R. Hiremath Vs. Irayya A.F. Basayya Hiremath passed by Hon'ble High Court of Karnataka on 16.03.2006.
19. The law with regard to filing of suit for cancellation and declaration has been well settled by Hon'ble Supreme Court in judgment titled as Surhid Singh @ Sardool Singh Vs. Randhir Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:36:56 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.12/20 Singh AIR 2010 SC 2807 to the effect that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed but if a non-executant seeks annulment of the deed, he has to seek a declaration that the deed is invalid or non-est or illegal or not binding on him. In the present case, the plaintiff admittedly is not a party to the adoption deed Ex.DW-1/A and hence, the appropriate remedy for him was to seek the declaration of the adoption deed as null and void. However, in the opinion of this court, this cannot be a ground for the dismissal of the suit as it has been laid down in a catena of judgments that the nature of the relief is to be ascertained by the court from the pleadings made in the plaint. Accordingly, from the plaint, it is clear that the relief sought by the plaintiff is in the nature of declaration. No prejudice shall be caused to the opposite party by treating the relief claimed as that of declaration as it is based on the same pleadings and even the valuation for the purpose of court fees and jurisdiction does not get changed.
20. In the present case, the adoption deed, if left outstanding will adversely affect the interest of the plaintiffs as it will reduce the extent of their share in the agricultural land left behind by the father of plaintiff no.1 and grandfather of plaintiff no.2. The judgments relied upon by the counsel for defendant are not applicable to the facts of the present case. Judgment Dr. M.A.M. Ramaswami (supra) deals with the question of issuance of legal heirship certificate on the basis of adoption deed. In Veerbhadrayya's case (supra), the suit of the plaintiff was dismissed on the ground of limitation itself. Thus, it cannot be said that the plaintiffs have no locus to file the present suit.
Digitally signed by NEHANEHA MITTAL MITTAL Date:
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21. Now coming to the question of the due execution and validity of the adoption, it is pertinent to observe that Adoption Deed Ex.DW-1/A is registered and Section 16 of the Hindu Adoptions and Maintenance Act, 1956 raises a presumption in favour of a registered document relating to adoption. It reads as follows:
'16. Presumption as to registered documents relating to adoption - Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.'
22. This is a rebuttable presumption of law and in order to disprove this presumption, such facts and circumstances have to be brought on record, upon consideration of which, the Court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. In this regard, reference is also being made to Section 11 of the Act of 1956 which stipulates the conditions to be complied with to constitute a valid adoption and, to the extent relevant, it reads as under :
"11. Other conditions for a valid adoption - In every adoption, the following conditions must be complied with: ―
(i) to (v) ....;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:
Provided that the performance of datta homam shall not be essential to the validity of adoption" Digitally signed by NEHA NEHA MITTAL MITTAL Date:
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23. In Kishori Lal vs. Mst. Chaltibai AIR 1959 SC 504 , a three Judges Bench of Hon'ble Supreme Court held that as an adoption results in changing the course of succession, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. On facts, the Bench found that no invitations were sent to the brotherhood, friends or relations and no publicity was given to the adoption, rendering it difficult to believe. In Govinda vs. Chimabai and others AIR 1968 Mysore 309, a Division Bench of the Hon'ble Mysore High Court observed that the mere fact that a deed of adoption has been registered cannot be taken as evidence of proof of adoption, as an adoption deed never proves an adoption. It was held that the factum of adoption has to be proved by oral evidence of giving or taking of the child and that the necessary ceremonies, where they are necessary to be performed, were carried out in accordance with shastras.
24. In Jai Singh vs. Shakuntala AIR 2002 SC 1428, Hon'ble Supreme Court noted the mandate of Section 11 (vi) of the Act of 1956 and held that the 'give and take in adoption' is a requirement which stands as a sine qua non for a valid adoption. In M. Vanaja vs. M. Sarla Devi (Dead) AIR 2020 SC 1293 , Hon'ble Supreme Court held that compliance of conditions in Chapter 1 of the Act of 1956 is mandatory for an adoption to be treated as valid and that the two important conditions mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and the proof of the ceremony of actual giving and taking in adoption.
Digitally signed by NEHANEHA MITTAL MITTAL Date:
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25. In Dhanno Wd/o Balbir Singh vs. Tuhi Ram (Died) represented by his LRs. AIR 1996 P&H 203, Hon'ble High Court of Punjab & Haryana held that the presumption under Section 16 of the Act, if any, is rebuttable and by merely placing the document on record without proving the ceremony of due adoption, it could not be said that there was a valid adoption. The learned Judge noted that the factum of adoption must be proved in the same way as any other fact and such evidence in support of the adoption must be sufficient to satisfy the heavy burden that rests upon any person who seeks to displace the natural succession by alleging an adoption.
26. In the present case, the evidence of defendants is required to be appreciated with great caution as they are highly interested witnesses being the beneficiaries of the adoption deed as defendant no.1 will be the sole successor of the entire estate of late Satish, if the adoption deed is held to be valid. A reading of the adoption deed shows that it specifically mentions about the devolution of property of Lt. Satish upon his adopted child i.e. defendant no.1 upon his death thereby raising suspicion as it talks less about adoption and more about property. DW-1 (who is stated to have given the child in adoption) has stated in his cross examination dated 17.08.2018 that he is not aware what ceremony and custom are performed at the time or after giving the child in adoption. DW-2 (attesting witness of the adoption deed) has stated in his cross examination that no function of giving and taking ceremony was done in the house of late Satish and defendant no.2. No photographs have been placed on record by the defendant to show the adoption ceremony of Master Jatin.
Digitally signed by NEHANEHA MITTAL MITTAL Date:
2024.07.31 16:37:37 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.16/20 It is not stated in the entire written statement and evidence affidavit as to when and where the actual giving and taking and ceremony of adoption took place. Thus, the requirements of valid adoption as contemplated u/s 11 of the Act were not complied with.
27. Further, DW-1 has stated in his cross examination that neither he nor late Satish discussed anything with respect of adoption of Master Jatin with their family members as they resided separately from the family. Firstly, the said statement is contradictory to his own statement given during cross examination dated 02.11.2017 in which he said that all his brothers are residing in their respective portions in their house. Secondly, no satisfactory explanation has been put forth before the court for keeping the adoption secret or confidential. Further, in the written statement filed by the defendants, it is stated that a simple ceremony of adoption took place in the presence of the witnesses, family members, relatives and also plaintiffs.
28. It is further pertinent to note that DW-1 has stated in his cross examination dated 02.11.2017 that Master Jatin is residing with him and his wife in his house since birth and that all his expenses are being borne by him since beginning. DW-2 has also stated the same in his cross-examination. These facts do not go hand in hand with the fact of adoption of Master Jatin by late Satish. If Master Jatin was adopted by Lt. Sartish, then there is no reason for him to live with his natural parents i.e. defendant no. 2 and 3. Further, plaintiff has summoned PW-2 who brought the photocopy of admission form of Master Jatin Ex.PW-2/2. A perusal of the said form shows that the father's name has been Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:37:46 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.17/20 mentioned as Ramesh (defendant no.2) and mother's name as Raj Bala (defendant no.3). The said admission form is dated 01.04.2010 which is after the date of the alleged adoption deed dated 13.01.2009 and prior to the death of alleged adopted father late Satish i.e. 12.01.2012. The defendant no.2 and 3, who have allegedly given the child in adoption, have failed to explain as to why their name is appearing as the name of the parents in the admission form. These facts raise suspicion in the valid execution of the adoption deed.
29. It is also pertinent to note that DW-1 and DW-2 have both stated in their cross-examination that Master Jatin is residing with them. Admittedly, defendant no. 2 has not been appointed as guardian of master Jatin by any court. As per section 12 of Hindu Adoption and Maintenance Act, 1956, the ties of the adopted child in the family of his birth shall be deemed to be severed on his adoption. Thus, after the death of his adoptive father Lt. Satish, the defendant no. 1 is not expected to live with his natural parents as father and mother. DW-1 has further stated in his cross-examination that the name of Master Jatin is mentioned in his ration card as his son. This should not have been done had he been adopted by Lt. Satish. Further, DW- 1 has also stated that from 2009 to 2012, he used to sign the report cards of Master Jatin and attended his parent-teacher meetings. These facts, in toto, rebut the presumption of valid adoption in pursuance of execution of adoption deed. Though adoption deed Ex.DW-1/1 might have been executed between the parties, but it can be said with certainty that no adoption of Master Jatin took place by Lt. Satish. Digitally signed by NEHA NEHA Date:
MITTAL MITTAL 2024.07.31 16:37:57 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.18/20
30. In view of the above discussion, this issue is decided in favour of the plaintiff and against the defendants.
Issue no.2 Whether the plaintiff is entitled to decree of permanent injunction, as prayed? (OPP)
31. The burden to prove this issue is upon the plaintiff.
32. The plaintiff has stated that the defendants had filed an application to the Ld. Tehsildar for mutation of the share of late Sh. Satish in the joint property in favour of defendant no.1 to which, objections were filed by the plaintiffs. This fact is not disputed by the defendants. Thus, in view of the finding on issue no.1, this issue is decided is decided in favour of the plaintiff and against the defendants.
RELIEF:-
33. In view of the above discussion, suit of the plaintiff is decreed. The adoption deed dated 13.01.2009 Ex.DW-1/A is hereby declared as null and void. A decree of permanent injunction is also passed in favour of the plaintiffs thereby restraining the defendants, their agents, assignees, accomplices, successors, legal representatives etc. to sell/transfer or alienate or create any third party interest in the land bearing Khasra No.32/1/2 (1-2), 10(4-16), 11(4-160, 33/6(4-16), 7(2-8), 13(3-7), 14(4-16), 15(4-16), 16(4-16), 17(4-16), 18(4-16), 19(1-8), 23(3-
10), 24(4-16), 25/1(4-1) and 171 (0-12) total measuring 59 bighas 13 biswas and 12 Biswansi situated in the revenue Estate of Village Khera Khurd, Delhi to the extent of share of Late Sh. Satish on the basis of the alleged adoption deed dated Digitally signed by NEHA NEHA MITTAL MITTAL Date:
2024.07.31 16:38:08 +0530 CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.19/20 13.01.2009.
34. Decree sheet be prepared accordingly. No order as to costs. File be consigned to Record Room after due compliance.
Digitally signed by NEHANEHA MITTAL MITTAL Date:
2024.07.31 16:38:15 +0530 (Announced in the open Court) (NEHA MITTAL) on 31st day of July, 2024 JSCC/ASCJ/GJ (NORTH-WEST) ROHINI COURTS/ DELHI CS SCJ No.59602/2016 Devender Singh Vs. Master Jatin Mann Page No.20/20