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2014 DIGILAW 526 (UTT)

JASWANT SINGH v. SUMITRA DEVI

2014-11-19

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. The impugned judgment dated 13th December, 2006, rendered by learned Additional District Judge, Dehradun has been challenged by way of filing this appeal, whereby the Testamentary Petition No.34 of 2003 launched by appellant Jaswant Singh was dismissed. 2. Brief facts of the case are that Narain Singh had only one son Khushi Ram, who was pre-deceased than Narain Singh. Smt. Sumitra, the main opponent of the petition, is the daughter-in-law of Narain Singh. Although, there were three more daughters of Narain Singh namely, Smt. Shyamwati, Smt. Sukhdevi and Smt. Rani (all married), who were impleaded as opposite parties, but they did not contest. 3. The testamentary petition was instituted by the nephew of Narain Singh seeking probate of the alleged Will dated 15.05.1998, executed by Narain Singh in favour of Master Jitendra (son of Jaswant Singh). The premise for seeking such probate was that during lifetime of Mr. Narain Singh, he adopted four year old Jitendra as his son because after the death of his real son Khushi Ram, he intended that all immovable and movable property should not go in the hands of unknown persons but the same should remain as the property of the family itself. So, it was one of the clause of such Will that during the lifetime, Narain Singh will be the sole owner of the entire property and after his death the property will be managed and enjoyed by Smt. Sumitra, her own daughter-in-law, in order to look after and discharge obligations towards Sumitra’s own daughters namely Smt. Raj Kumari, Smt. Santro and Km Suman. But after the end of Sumitra’s life, the property would devolve upon Master Jitendra, who had been adopted by Narain Singh. 4. This petition was contested by Smt. Sumitra and the learned Trial Judge dismissed the same on merits. 5. I have heard learned counsel for either party and perused the entire impugned judgment and have found that the questioned Will is un-registered one. Although, the original Will is not before this Court, but it was argued by the learned counsel for the opposite party that even if for a moment, it is assumed that the Will was notarized, then also, the claimant was duty bound to prove the same by way of producing the Notary or the Scribe. But it was not done. Although, the original Will is not before this Court, but it was argued by the learned counsel for the opposite party that even if for a moment, it is assumed that the Will was notarized, then also, the claimant was duty bound to prove the same by way of producing the Notary or the Scribe. But it was not done. Learned Trial Court has also recorded its finding in that regard as per the argument of learned counsel for the opposite party and I also do agree with the same. 6. As far as the adoption of Master Jitendra is concerned, the same too has not been proved because no independent witness has been examined to prove the fact of organizing any ceremony in that regard. Only PW1 Jaswant (father of Jitendra), PW2 Ved Prakash (close relative of Jaswant Singh) and PW3 Bharat Singh (close relative of PW2) have been examined to prove the fact of organizing the ceremony. Their testimony is quite unbelievable because in order to prove the fact of such ceremony, other five brothers of Jaswant, who are still alive, were certainly the most reliable and significant witnesses. However, none of them has been examined. 7. Moreover, no adoption deed was written, which is compulsorily required to be registered w.e.f. 1.1.1977. 8. It is also pertinent to mention that the opposite parties, Smt. Shyamwati, Smt. Rani and Smt. Sukh Devi, once filed mutation proceedings claiming succession on the immovable property of their father Narain Singh on the basis of another alleged Will dated 25.4.1998 and the same were well within the knowledge of Jaswant Singh, but even in those proceedings, which could not be succeeded in the revenue court later, he could not reveal anything regarding the Will dated 15.5.1998 in favour of his own son. The explanation of Jaswant Singh that he was contemplating to assert the Will dated 15.5.1998 in favour of his own son later, is quite unacceptable. 9. Nothing has been brought on record that before giving Master Jitendra into the adoption of Narain Singh, the consent of child’s mother was also taken. Even the mother of Jitendra has not been examined in the Court to prove her consent in that regard. It is well settled that without the mother’s consent, adoption of a minor child cannot come into effect. 10. All told, I find no infirmity in the impugned judgment. Even the mother of Jitendra has not been examined in the Court to prove her consent in that regard. It is well settled that without the mother’s consent, adoption of a minor child cannot come into effect. 10. All told, I find no infirmity in the impugned judgment. Appeal is bereft of any merit and is dismissed.