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2018 DIGILAW 1122 (HP)

Devi Singh v. Kamla

2018-06-19

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The appellant is the plaintiff, who aggrieved by the concurrent findings of fact rendered by both the learned courts below, has filed the instant appeal. The parties shall be referred to as the plaintiff and the defendants. 2. The plaintiff had claimed himself to be the adopted son of late Sh. Kund Ram and sought succession to his estate by assailing the will, dated 29.7.2000 that had been executed by Kund Ram in favour of the defendants. 3. The defendants No. 1 and 2, who are none other than the wife and daughter of late Sh. Kund Ram, resisted the suit by claiming the right to succeed to the property of late Sh. Kund Ram on the basis of the will, dated 29.7.2000. 4. After recording the evidence and evaluating the same, the learned trial court dismissed the suit vide judgment and decree dated 23.7.2013 by concluding that the plaintiff had failed to prove the factum of his adoption and the learned trial court further held the will in question to be legal and valid one. 5. The aforesaid judgment and decree of the learned trial court was assailed by the plaintiff before the learned first appellate court by filing an appeal, however, the same came to be dismissed vide impugned judgment and decree dated 5.1.2018 constraining the plaintiff to file the instant appeal on the ground that the findings recorded by both the learned courts below are perverse inasmuch as they are based on misreading of the pleadings as also mis-appreciation of oral as well as documentary evidence that has come on record. 6. I have heard learned counsel for the plaintiff and have also gone through the records of the case carefully. 7. At the outset, it needs to be observed that the plaintiff can maintain this appeal only if he can establish and prove that he is an adopted son of late Sh. Kund Ram and only thereafter can he be permitted to challenge the will in question as it is more than settled that a stranger cannot challenge the validity of the will. 8. As regards the adoption, the legal requirements for a valid adoption have been lucidly expounded by the Hon’ble Supreme Court in Param Pal Singh vs. National Insurance Company and anr., (2013) 3 SCC 409 , wherein it was observed as under: “12. 8. As regards the adoption, the legal requirements for a valid adoption have been lucidly expounded by the Hon’ble Supreme Court in Param Pal Singh vs. National Insurance Company and anr., (2013) 3 SCC 409 , wherein it was observed as under: “12. In Hindu Law in the celebrated decision of this Court reported in Lakshman Singh Kothari, the legal requirement for a valid adoption has been succinctly stated in paragraph 10 which reads as under: (AIR p. 1381) “10. The law may be briefly stated thus: Under the Hindu law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.” 13. The said legal position has been consistently followed by this Court which can be mentioned by referring to a recent decision of this Court reported in M. Gurudas and others V. Rasaranjan and others, 2006 (8) SCC 367 . Paragraphs 26 and 27 are relevant for our purpose which read as under: “26. To prove valid adoption, it would be necessary to bring on record that there had been an actual giving and taking ceremony. Performance of “datta homam” was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law. 27. In Mulla's Principles of Hindu Law, 17th Edn., p. 710, it is stated: “488. Performance of “datta homam” was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law. 27. In Mulla's Principles of Hindu Law, 17th Edn., p. 710, it is stated: “488. Ceremonies relating to adoption.—(1) The ceremonies relating to an adoption are— (a) the physical act of giving and receiving, with intent to transfer the boy from one family into another; (b) the datta homam, that is, oblations of clarified butter to fire; and (c) other minor ceremonies, such as putresti jag (sacrifice for male issue). (2) The physical act of giving and receiving is essential to the validity of an adoption. As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case. As to the other ceremonies, their performance is not necessary to the validity of an adoption. (3) No religious ceremonies, not even datta homam, are necessary in the case of shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab.” 14. In this context, it will be worthwhile to note the requirement of registration of an Adoption Deed. Section 17 of the Registration Act specifically refers to the documents of which registration is compulsory. The deed of adoption is not one of the documents mentioned in subsection 1 of Section 17 which mandatorily required registration. Sub-section 3 of Section 17 only refers to the mandatory requirement of registration of an authorization that may be given for adopting a son executed after 01.01.1872 if such authorization was not conferred by a Will. Dealing with the said provision relating to authorization, it has been held in the decision reported in Vishvanath Ramji Karale V. Rahibai Ramji Karale and others - AIR 1931 Bombay 105 by a deed of adoption as distinguished from authority to adopt does not require registration.” 9. Judged in the light of law, as expounded above, it would be noticed that the plaintiff claimed that he was only 8- 10 days old when he came to be adopted by Kund Ram. He further stated that there were formal ceremonies of giving and taking and his parents put him into the lap of Kund Ram and “Datta Homa” was also performed by the family priest. However, admittedly, there is no document regarding such adoption. He further stated that there were formal ceremonies of giving and taking and his parents put him into the lap of Kund Ram and “Datta Homa” was also performed by the family priest. However, admittedly, there is no document regarding such adoption. That apart, even though PW3 Bal Krishan, PW4 Amar Singh and PW5 Leela Dutt claimed themselves to be the witnesses of the alleged adoption, but in cross-examination, PW5 Leela Dutt admitted that he was not present at the time of adoption, whereas PW4 Amar Singh in his cross-examination admitted that he could not say that the plaintiff was adopted by Kund Ram. As regards PW3 Bal Krishan, even though he stated that he was present at the time of adoption ceremony, but as per his statement, his date of birth is 16.6.1959, whereas the adoption is alleged to have taken place in the year 1971. Thus at the time of alleged adoption he was not more than 11 years old and was, therefore, too immature to witness and understand the intricacies of the alleged adoption ceremonies. 10. That apart, as rightly observed by the learned courts below, the plaintiff was never planted in the family of the adoptive parents after adoption. Rather, his school certificates, ration card and other documents still continue to reflect therein the name of his real father. 11. In view of above, this Court has no hesitation to conclude that the plaintiff has failed to prove that he is the adopted son of Kund Ram and having failed to do so, he has no locus standi to file the suit, thereby challenging the will executed in favour of the defendants as being a stranger he cannot question the execution or validity of the will. Even otherwise, the findings recorded by both the learned courts below are pure findings of fact and immune from interference by this Court under Section 100 CPC. 12. Having said so, no question of law much less substantial question of law arises for consideration in this appeal and the same is accordingly dismissed in limine, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.