Punjab-Haryana High Court
Sudesh Kumar vs Amritsaria Ram & Others on 15 November, 2013
Author: Surinder Gupta
Bench: Surinder Gupta
RSA No. 412 of 1990 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
RSA No. 412 of 1990
Date of Decision : .11.2013
Sudesh Kumar
.....Appellant
versus
Amritsaria Ram & others
.....Respondents
CORAM : HON'BLE MR. JUSTICE SURINDER GUPTA
1. Whether Reporters of Local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
****
Present : Mr. Atul Lakhanpal, Sr. Advocate with
Mr. Udhamjit Singh, Advocate
for the appellant.
None for the respondents.
---
Surinder Gupta, J.
This regular second appeal is directed against the judgment and decree dated 11.11.1989 passed by the learned Additional District Judge, Jalandhar setting aside the judgment and decree passed by the learned trial Court.
Appellant Sudesh Kumar and other respondents are close relatives. Natural father of Sudesh Kumar was Shiv Chand son of Hari Chand. Babu Ram, Amritsaria Ram, Ved Parkash, Shiv Chand and Lachhman Dass were real brothers. Sudesh Kumar appellant filed the suit seeking the share of Ved Parkash to the extent of 1/5th in the suit land Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -2- measuring 5 Kanal- 4 Marlas as fully described in the headnote of the plaint, situated in village Sahlon, Tehsil Nawanshahr in the jamabandi for the year 1978-79, on the basis of adoption deed dated 03.07.1962 executed by Ved Parkash.
Briefly stated the case of the plaintiff is that he was adopted by Ved Parkash, who executed an adoption deed dated 03.07.1962. All the required ceremonies of the adoption were completed for giving the plaintiff into adoption to Ved Parkash. Ved Parkash died on 01.05.1981. Being the adopted son, the plaintiff came to be owner in possession of the land of the share of Ved Parkash. However, Babu Ram and Amritsaria Ram illegally got entered and sanctioned the mutation No. 2759 with regard to the share of Ved Parkash in their favour. The plaintiff sought declaration to the effect that he is joint owner in possession of 1/5th share belonging to Ved Parkash, on the basis of registered adoption deed dated 03.07.1962. In the alternative he sought decree for joint possession of 1/5th share out of the suit land measuring 5 Kanal- 4 Marlas.
Defendant No.3-Amritsaria Ram contested the claim of the plaintiff in the written statement. The plea of the plaintiff with regard to his adoption by Ved Parkash and execution of adoption deed dated 03.07.1962 by him have been denied, contested and controverted inter alia pleading that Ved Parkash never executed the registered adoption deed dated 03.07.1962 and even if the execution of the adoption deed is proved, the same was the result of fraud, misrepresentation and concealment of fact thereby not affecting the rights of the defendants. The plaintiff being more than 15 years of age could not be adopted by Ved Parkash.
The plaintiff reasserted his case in the replication and the Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -3- pleadings of the parties led to the framing of the following issues :-
1. Whether Ved Parkash now deceased executed an adoption deed dated 3.7.1962 in favour of the plaintiff. If so its effect ?OPP
2. Whether the suit in the present form is not maintainable?OPP
3. Whether the suit is bad for non-joinder of necessary parties ?OPD
4. If issue No. 1 is proved whether the alleged adoption deed dated 03.07.1962 is the result of fraud and mis- representation and concealment of facts? OPD
5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ?OPD
6. Relief.
The trial Court recorded the findings on issues No. 1, 4 & 5 in favour of the plaintiff, while no findings were recorded on issues No.2 & 3 being not pressed by the parties. The suit of the plaintiff was decreed and he was held entitled for joint possession of the suit land to the extent of 1/5th share.
Defendant-Amritsaria Ram preferred appeal, which was accepted by the Addl. District Judge, Jalandhar and suit of the plaintiff was ordered to be dismissed.
Not satisfied with the judgment and decree of the first appellate Court, the plaintiff has come up with this regular second appeal.
Learned counsel for the appellant has been heard and record perused.
Learned counsel for the appellant has assailed the judgment of the first appellate Court on the ground that the appellant has been non- suited on the mere ground that he had not been able to prove that he was Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -4- below 15 years of age at the time of adoption and he could not be validly adopted after completion of age of 15 years and, secondly, that no presumption of adoption can be drawn on the basis of the adoption deed dated 03.07.1962, which was not signed by the natural parents of the appellant. Much reliance, by the First Appellate Court, has been placed on the fact that while appearing as PW-1, the plaintiff has stated his age at the time of adoption as 15/16 years. Defendant-Amritsaria Ram (now respondent No.1) had challenged the adoption deed on the ground of fraud, collusion and misrepresentation but fail to prove the plea taken by him, as such, the adoption deed could not be ignored. Even if this adoption deed was not signed by the natural parents of the appellant still it could be taken as a corroborative piece of evidence to prove the factum of adoption as the appellant had led cogent and convincing evidence to prove the ceremony of adoption which have taken place before the execution of the adoption deed. The appellant had given his date of birth as 01.05.1948. The date of the adoption deed is 03.07.1962, which shows that the appellant was below 15 years of age at the time of his adoption. No evidence to rebut this fact was produced on file by the defendant/ respondents. The mere fact that the adoption deed was not signed by the natural parents of the appellant, is no reason to discard the entire evidence produced on file to prove that the plaintiff was duly adopted by Ved Parkash. Perusal of the jamabandi Ex. P- 3 shows that the plaintiff has not got share in the property of his natural father Shiv Chand. In case the plaintiff had not been adopted by his uncle Ved Parkash he would not have been deprived of share in the property of his natural father.
Before proceeding further it would be relevant to note that Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -5- Section 5 of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act') provides that no adoption after the commencement of this Act shall be made by a Hindu except in accordance with the provisions of Chapter II of the Act and any adoption made in contravention of the said provision shall be void. The provisions of Section 5 of the Act are reproduced as follows :-
"5. Adoptions to be regulated by this Chapter.-(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reasons o the adoption, nor destroy the rights of any person in the family of his or her birth."
Section 6 of the Act lays requisites of a valid adoption while Sections 7 & 8 of the Act deals with the capacity of a male/ female to take a child into adoption. Section 9 of the Act deals with the provisions about the capability of giving in adoption. While Section 10 of the Act deals with the person who may be adopted.
Section 11 of the Act lays down other conditions for a valid adoption, which provides as follow :-
(i) xx xx xx xx
(ii) xx xx xx xx
(iii) xx xx xx xx
(iv) xx xx xx xx
(v) xx xx xx xx
(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 Atul Kumar Tripathi 2013.11.20 11:06 family of its birth or in the case of an abandoned child or child I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -6- whose parantage 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." The substantial question of law, which arises in this appeal is as follows:
"Whether the proof of execution of adoption deed in the absence of pleadings, as per requirement of Section 11(vi) of the Act and any corroborative evidence to prove the ceremonies of adoption are sufficient to prove the plea of his adoption by late Sh. Ved Parkash, raised by the appellant?"
In the plaint, Sudesh Kumar-plaintiff (appellant) had based his entire claim on the registered adoption deed dated 03.07.1962. The only other plea taken by the plaintiff is 'adoption was completed after completing all the formalities as required'. There is no pleadings with regard to any ceremony of adoption having taken place in the village where Sudesh Kumar was given by his parents and taken by Ved Parkash with intend to transfer him from the family of his birth to the family of Ved Parkash.
The plaintiff while appearing his own witness (PW-1) and the other witness, namely, Bhuja Singh-PW-4 have stated about the ceremony of adoption taking place in the village. It is settled proposition of law that no evidence beyond the pleadings can be looked into. In the absence of pleadings of the ceremonies of adoption having taken place the statement of the plaintiff and his witness to prove the ceremonies of adoption are worthless and cannot be looked into. The First Appellate Court had elaborately analyzed this argument in para 10 (b) of the judgment and found the statement of plaintiff and his witness Bhuja Singh Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -7- contradictory/discrepant on this score. The discussion of facts by the First Appellate Court and its observations are as follows:
"That learned counsel for the respondent has argued that even if the registered adoption deed Ext. P1 is excluded from consideration, even then there is sufficient evidence on the file led by the respondent to prove that he was actually taken in adoption by deceased Ved Parkash and was given in adoption by his father Shiv Nand. In support of this argument, he has placed reliance on the statement of Sudesh Kumar, PW1, and Bhuja Singh, PW4, but from the perusal of the statements of these witnesses and from the alleged adoption deed it is not proved at all that the respondent Sudesh Kumar was actually adopted by the deceased Ved Parkash. My opinion is based on the following reasons:
(i) The respondent has based his claim in the plaint on the adoption deed dated 3.7.62 (Ext. P1) only and now at the evidence stage he cannot be permitted to lead evidence regarding the ceremonies of adoption. But even if the evidence is taken into consideration, though not pleaded, even then it does not inspire confidence to place reliance on it as in the adoption deed Mark A it is written that the ceremonies of adoption were performed one year prior to the execution of the adoption deed dated 3.7.62, while the respondent has stated in his statement as PW1 that the ceremonies were performed one month prior to the execution of the adoption deed. The learned counsel for the respondent has failed to reconcile this discrepancy in the adoption deed Mark A and the statement of the respondent which cuts the roots of the case of the respondent.
(ii) Even if the discrepancy regarding the date of the performance of the ceremonies of adoption is not taken into consideration, even then there is no satisfactory evidence regarding the performance of those ceremonies as the respondent Sudesh Kumar, PW1 and Bhuja Singh, PW4, have given contradictory statements regarding the performance of these ceremonies. The respondent Sudesh Kumar, PW1 has stated that the ceremony of adoption was performed in village Sahlon and at that time Bhuja Singh PW4, Tara Singh, Sarpanch, Pandit Kundan Lal and one Buta Ram and some other relatives and respectables of the village were present. He has further stated that at that time his maternal uncle Hem Raj and maternal aunt Shankri were also present and they are alive. He has further stated that 2 or 3 days prior to the ceremony munadi was effected in the village and on the day of performing the ceremonies, lunch was offered to all the residents of the Village and holy 'Geeta' was read on that occasion. He has further stated that his natural parents gave him to Ved Parkash, deceased, and the latter accepted him as his son and these ceremonies were performed in the presence of the persons present there and Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -8- gur and Shakar was distributed amongst them. But Bhuja Singh has stated that no tea or lunch was served to any one present there and no ceremonies were performed in his presence. He has further stated when he reached there, he was told that Ved Parkash had adopted Sudesh Kumar as his son and no 'geeta' or 'granth Sahib' was read at that time.
He has not stated that any ceremony took place in his presence except his statement, there is no other evidence to corroborate the statement of Sudesh Kumar, PW1, regarding the ceremonies of adoption allegedly performed at that time. Sudesh Kumar, PW1, has admitted that his maternal uncle Hem Raj and maternal aunt Shankri were present at the time when he was given in adoption by his natural father Shiv Nand and was accepted by his adopted father Ved Parkash as his son and the ceremonies were performed and that they both are alive. Under the circumstances, they were the best persons to prove the ceremonies of giving and taking in adoption, but they have not been examined by the respondent for the reasons best known to him. Under these circumstances, it remains unproved on the file that the respondent Sudesh Kumar was given in adoption by his natural father Shiv Nand to his adopted father Ved Parkash, deceased and the latter accepted him and further that any other ceremony was performed at that time."
The perusal of the statement of plaintiff and his witness Bhuja Singh points no legal or factual infirmity in the above findings of the First Appellate Court.
Now the question is as to how the plaintiff could prove his adoption by Ved Parkash his uncle. Admittedly, he had studied upto matric. It is stated by him that in his educational certificates, the name of father is written as Shiv Nand. Thereafter, he joined service at Ludhiana. He has also his ration card in the village. In case, he had been adopted by Ved Parkash, he must have got recorded his father's name as Ved Parkash in his service record, ration card and other documents like voter list etc. and produced such documents in support of his contention.
So far as the adoption deed dated 04.07.1962 is concerned, it has rightly been ignored and no presumption on the basis of this deed, relating to adoption of Sudesh Kumar by Ved Parkash, could be drawn Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh RSA No. 412 of 1990 -9- under Section 16 of the Act. This document was not signed by natural parents of the appellant.
The onus was heavily on the plaintiff Sudesh Kumar to prove plea of his adoption by Ved Parkash. He simply relied upon the adoption deed dated 4.7.1962 without giving details of the manner and the ceremonies of his adoption in the pleadings.
The substantial questions of law as framed in this appeal is decided against the appellant.
As a sequel to the above discussions, the present appeal is dismissed.
(SURINDER GUPTA) JUDGE .11.2013 'Satyawan/atul' Atul Kumar Tripathi 2013.11.20 11:06 I attest to the accuracy and integrity of this document Chandigarh