Punjab-Haryana High Court
Sampat vs Manoj Kumar on 24 February, 2011
Author: Sabina
Bench: Sabina
RSA No.503 of 2009 1
In the High Court of Punjab and Haryana at Chandigarh
RSA No. 503 of 2009
Date of decision: 24.02.2011
Sampat .....Appellant
Versus
Manoj Kumar .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.A.Sheoran, Advocate,
for the appellant
Mr.Rajiv Sharma, Advocate for
Mr.Alok Jain,Advocate
for the respondent
****
SABINA, J.
Plaintiff had filed a suit for declaration that the adoption deed dated 9.6.1998 executed by Khubi Ram was null and void.
The case of the plaintiff in brief was that Khubi Ram was the owner of 1/3rd share of land measuring 244 kanals 19 marlas. Khubi Ram was unmarried and issueless. Khubi Ram was suffering from throat cancer and was not in a position to speak in the last days of his life. Plaintiff, Khubi Ram and Chandgi Ram were the real brothers. Chandgi Ram had since expired. At the time of death of Khubi Ram, plaintiff was the only legal heir of Khubi Ram. Defendant had set up the adoption deed claiming that he had been adopted by Khubi Ram and had got mutation sanctioned in his favour qua share of Khubi Ram. Hence, the suit filed by the plaintiff. RSA No.503 of 2009 2
Defendant in his written statement averred that Khubi Ram had adopted the defendant when he was about two years old. Khubi Ram was unmarried and was living with his brother Chandgi Ram. After the death of Chandgi Ram, Khubi Ram started residing with Rati Ram, son of Chandgi Ram. Defendant had been adopted by Khubi Ram out of love and affection and to give it legal sanctity, Khubi Ram executed a registered adoption deed in favour of defendant on 9.6.1998. The defendant had performed the last rites of the deceased-Khubi Ram.
On the pleadings of the parties, the following issues were framed by the trial Court:-
"1.Whether the adoption deed dated 9.6.1998 allegedly executed by deceased Khubi Ram is null, void and illegal and the subsequent mutation no.371 sanctioned on the basis of said adoption is also null, void and illegal and liable to be set aside?OPP
2.Whether the plaintiff is entitled to inherit property of Khubi Ram son of Pirdan, who died issuless?OPP
3.Whether the suit of the plaintiff is not maintainable in the present form?OPD
4.Whether the plaintiff is estopped by his act and conduct from filing the present suit?OPD
5.Relief"
Vide judgment and decree dated 21.4.2001, the trial Court dismissed the suit of the plaintiff. The said judgment and decree were upheld by the District Judge, Bhiwani vide judgment and decree dated 12.8.2008 in appeal filed by the plaintiff. Hence, the present appeal RSA No.503 of 2009 3 by the plaintiff.
Learned counsel for the appellant has submitted that the adoption deed set up by the defendant was liable to be set aside as the defendant could not have been taken in adoption by Khubi Ram being more than 15 years of age.
Section 10 of the Hindu Adoptions and Maintenance Act, 1956 reads as under:-
"10. Persons who may be adopted.-No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
(i) he or she is a Hindu;
(ii)he or she has not already been adopted;
(iii)he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv)he or she has not completed the age of fifteen years, unless there is a custom of usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption"
Thus, as per the above provision, in case the person who has not completed the age of 15 years can be taken in adoption unless there is a custom or usage applicable to the parties which permit the person who has completed the age of 15 years being taken in adoption.
In the present case, it has been proved on record that Khubi Ram was suffering from throat cancer. The adoption deed in question Exhibit P1 was executed on 9.6.1998. Khubi Ram died on RSA No.503 of 2009 4 2.9.1998. In order to prove the due execution of the adoption deed, the defendant himself appeared in the witness box and examined Scribe Matu Ram and attesting witnesses Mulak Raj and Surat Singh. The said witnesses proved the due execution of the adoption deed executed by Khubi Ram. Defendant also examined Rati Ram,natural father of the defendant who deposed to the effect that the defendant was given in adoption to Khubi Ram in the presence of their relatives and a ceremony in this regard was duly performed. In order to support the plea of the plaintiff that the defendant could not have been taken in adoption, reliance was placed on voter list and ration card wherein the age of defendant was described to be more than 15 years at the time of execution of the adoption deed. However, the date of birth certificate of the defendant has not been proved on record by the plaintiff to conclusively establish that the age of the defendant was more than 15 years at the time of execution of the adoption deed. The Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the adoption deed was duly executed by the deceased-Khubi Ram in favour of the defendant.
No substantial question of law arises in this appeal Dismissed.
( Sabina ) Judge February 24,2011 arya