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2014 DIGILAW 806 (PNJ)

Sahil v. Sudesh Kumar

2014-05-07

RAKESH KUMAR GARG

body2014
Rakesh Garg, J. 1. This is plaintiff's second appeal challenging the judgment and decree of the trial Court dated 31.8.2010, whereby his suit for declaration to the effect that he was entitled to receive the insurance and other benefits on account of death of late Shri Om Parkash son of Shri Kura Ram with further relief of permanent injunction restraining respondent No. 5 from disputing the insurance claim in respect of Shri Om Parkash and further direction to respondent No. 5 to pay the amount of policies, was dismissed. Further challenge has been laid to judgment and decree of the lower Appellate Court dated 21.7.2012 whereby plaintiff's appeal against the aforesaid judgment and decree of the trial Court was also dismissed. Plaintiff filed the instant suit, inter alia, pleading that deceased Om Parkash, who was his adoptive father was having three insurance policies, as mentioned in the head note of the plaint, expired on 21.7.2002 at Ambala Cantt., leaving behind the plaintiff, the only legal heir. 2. It is the case of the plaintiff-appellant that he was adopted by deceased Om Parkash in a biradari, as he was unmarried. However, the adoption deed was registered on 12.7.2002 before the registering authority. After the death of Om Parkash, he came to know that respondent-defendants No. 1 to 4 were trying to receive the insurance benefits from respondent No. 5 without any right or authority in this regard and respondent No. 5 was duty bound to give the claim of the aforesaid policies in favour of the appellant only. 3. Respondents No. 1 and 4 were proceeded against ex parte by the trial Court vide order dated 8.5.2003, whereas respondents No. 2 and 3 filed their joint written statement stating that the simpliciter suit for declaration was not maintainable and the plaintiff-appellant should have filed a petition under Section 372 of the Indian Succession Act, 1925 for obtaining the succession certificate if he had any claim. It was further submitted that the appellant was never adopted by deceased Om Parkash and the alleged adoption deed was the result of fraud and misrepresentation. The appellant has concealed the true and material facts from the Court and therefore, he was not entitled to any relief. The appellant was not the adopted son of the deceased. The deceased was having three insurance policies and died on 21.7.2002, leaving behind the aforesaid respondent-defendants, as his LRs. The appellant has concealed the true and material facts from the Court and therefore, he was not entitled to any relief. The appellant was not the adopted son of the deceased. The deceased was having three insurance policies and died on 21.7.2002, leaving behind the aforesaid respondent-defendants, as his LRs. In fact Dev Raj, brother of the deceased and husband of respondent No. 3 had died much prior to the death of deceased Om Parkash. After the death of Dev Raj, the deceased used to live with the said respondent-defendants, as he had no source of livelihood till his death. Said defendants kept the deceased with love and affection and due to that, he appointed the said defendants as his nominees in the insurance policies and thus, they were entitled to receive the amount thereof. The adoption deed dated 12.7.2002 was prepared only eight days prior to the death of deceased Om Parkash when he was seriously ill and was taken by Ashok Kumar, the natural father of the appellant, on the pretext of providing medical aid. In good faith, respondent No. 3 sent deceased Om Parkash with him when he was not in sound disposing mind. Taking advantage of his illness, said Ashok Kumar got propounded a false adoption deed in order to grab the property of the deceased. Since the deceased had already adopted respondent No. 2 as his son, he was never interested in adopting the appellant and thus, the said respondents No. 2 and 3 are the legal heirs and nominees of the deceased. The appellant was living with his natural father since his birth and the present suit has been filed only to grab the property of the deceased. Accordingly, dismissal of the suit was prayed. 4. Defendant-respondent No. 5 filed separate written statement, inter alia, pleading that defendant-respondents No. 1 to 4 were mentioned as nominees under the abovesaid policies of the deceased and thus, they were entitled to receive the proceeds of the policies. However, the claim under the said policies has been repudiated by the competent authority on the ground of suppression of material facts by the deceased with regard to health of the deceased at the time of submission of proposal for insurance and thus, nothing was payable under the said policies. However, the claim under the said policies has been repudiated by the competent authority on the ground of suppression of material facts by the deceased with regard to health of the deceased at the time of submission of proposal for insurance and thus, nothing was payable under the said policies. It is the further case of respondent No. 5 that the deceased had procured the insurance policies fraudulently, as he was an old patient of TB and remained under treatment. Since the claim under the said policy has been repudiated, the question of making any payment to anyone does not arise. 5. Plaintiff filed replication to the above written statement, thereby, controverting the contents of the written statements and reiterated the contents of the plaint. 6. On completion of pleadings, following issues were framed by the trial Court:- " 1. Whether the plaintiff is entitled to receive all insurance benefits and other benefits due to the death of Shri Om Parkash S/o. Shri Kura Ram, r/o. Babyal, as alleged? OPP 2. If issue No. 1 is proved, whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 3. Whether Shri Ashok Kumar is the natural father as guardian of minor Master Sahil, as alleged? OPP 4. Whether the suit of the plaintiff is not maintainable, as alleged? OPD 5. Whether the plaintiff was not adopted by Shri Om Parkash and the alleged adoption is result of fraud and misrepresentation, as alleged? OPD 6. Whether the plaintiff has concealed the true and material facts, if so, its effects? OPD 7. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD 8. Whether the suit filed by the plaintiff is undervalued for the purposes of court fee and jurisdiction, as alleged? OPD 9. Whether this Court has no jurisdiction to try and entertain the present suit as alleged? OPD 10. Relief." 7. After completion of evidence, the trial Court heard the parties on merits and decided issues No. 1 and 2 against the appellant whereas issue No. 3 was decided in his favour. Issues No. 4, 5 and 7 were decided in favour of the defendants whereas issues No. 6, 8 and 9 were decided against the defendants being not pressed. Resultantly, the suit was dismissed with costs. 8. Issues No. 4, 5 and 7 were decided in favour of the defendants whereas issues No. 6, 8 and 9 were decided against the defendants being not pressed. Resultantly, the suit was dismissed with costs. 8. While dismissing the suit, the trial Court held that the original of the alleged registered adoption deed was not placed on record in complete derogation of the provisions of Sections 64 and 91 of the Indian Evidence Act, 1872. Further finding was recorded that none of the witnesses was able to divulge the ceremonies of adoption nor has been able to explain that giving and taking ceremonies ever took place and the witnesses have only put stress upon the execution of the adoption deed, which itself was not proved in accordance with law. It was further held that a nominee is not an heir appointed by the policy holder but he is a person appointed by him to carry the sum assured, in case of his death, to distribute the same amongst the other legal heirs. 9. Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff preferred an appeal before the first Appellate Court which was also dismissed vide impugned judgment and decree dated 21.7.2012. 10. Needless to say that while dismissing the appeal, the lower Appellate Court affirmed the findings of the trial Court on all the issues holding that the same were based on the evidence on record. It may also be noticed that the lower Appellate Court further held that since the suit of the appellant was dismissed on the ground that he was not an adopted son of the deceased, no finding was required to be given with regard to the stand taken by respondent No. 5 that the claim under the policies stood repudiated. It was further observed that anything mentioned in the impugned judgments and decrees will not affect the inter se rights of the parties qua such repudiation, but such rights will be subject to the law of limitation. 11. Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- "i) Whether the Ld. Courts below have ignored the material evidence and drawn wrong inferences from the proved facts? 11. Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- "i) Whether the Ld. Courts below have ignored the material evidence and drawn wrong inferences from the proved facts? ii) Whether misreading of evidence and erroneous interpretation of the provisions i.e. Section 6, 11 and 16 of the Hindu Adoption and Maintenance Act, 1956 has taken place?" 12. Learned counsel for the appellant has vehemently argued that execution of the adoption deed dated 12.7.2002 stands fully proved from the evidence on record. Thus, the findings of the Courts below are the result of misreading of evidence, the pleadings and wrong interpretation of the adoption deed. According to learned counsel, the adoption deed (Ex. P1) clearly recites that the give and take ceremony has been performed as per the customs. According to learned counsel for the appellant, once adoption deed is registered, a presumption is attached to the effect that adoption has been made in compliance of the provisions of the Act on the basis of adoption deed (Ex. P1), which is a registered document and in view thereof, the substantial questions of law, as raised, do arise in this appeal and the impugned judgments and decrees of the Courts below are liable to be set aside. 13. I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. 14. There is no dispute with regard to the presumption attached to a registered adoption deed, as provided under Section 16 of the Hindu Adoption and Maintenance Act, 1956 (for short, "the Act"), however, the said presumption is rebuttable. In fact, the Courts below, on the basis of the evidence on record, have recorded a concurrent finding to the effect that none of the witnesses examined by the appellant, has been able to divulge the ceremonies of adoption and the witnesses have only stressed upon the execution of the adoption deed. Not only this, the Courts below have further found that the original of the adoption deed was not placed on record and the same was not proved in accordance with law. It is a matter of record that Ex. P1 is a photocopy of the alleged adoption deed. Not only this, the Courts below have further found that the original of the adoption deed was not placed on record and the same was not proved in accordance with law. It is a matter of record that Ex. P1 is a photocopy of the alleged adoption deed. It is well settled that a document can be proved only either by primary evidence i.e. by producing the original document in Court or by secondary evidence, as provided under the provisions of Section 64 of the Indian Evidence Act, 1872. Admittedly, in the instant case, neither the original adoption deed has been produced on record nor any permission of the Court has been sought to lead secondary evidence. 15. It may further be noticed that under Section 11 of the Act, it is necessary to prove the give and take ceremony by persons competent under the law to adopt a child for a valid adoption. Since in the instant case, the necessary ceremony of give and take of a child has not been proved, no exception can be taken to the findings of the Courts below that no valid adoption of the appellant has taken place. 16. No other point has been raised. In view thereof, this Court is of the opinion that no question of law, much less substantial question, arises in this appeal. Dismissed.