CM No.16060-C of 2016 and
RSA No. 130 of 1987 103
…

Jas Ram vs Pehlad and others

Present: Mr.Mahavir Sandhu, Advocate,
for the appellant
Mr.G.R.Vashisth, Advocate, and
Ms.Neeru Bansal, Advocate,
for respondents
…

CM No.16060-C of 2016

By this application filed on behalf of the legal representatives

of respondent no.1, they seek to be impleaded in his place as such legal

representatives, the said respondent having died on 9.11.2016.

Notice in the application.

Mr.Mahavir Sandhu, Advocate, accepts notice and submits that

he has on objection to the application being allowed.

Accordingly, the application is allowed and the persons whose

names are given in paragraph 2 of the application, are ordered to be

impleaded as legal representatives of respondent no.1, Pehlad. The amended

memo of parties is taken on record.

RSA No.130 of 1987

Though only a photocopy of the records of the Courts below

has been put up, however, the Hindi translation of Ex.P1 (which is stated to

have been executed in Urdu and the photocopy thereof also bears that out),

has been produced in Court today by Mr.Sandhu, learned counsel for the

appellant.

Mr.Vashisth, learned counsel for the respondents, does not

seriously dispute the translation thereof, however, since he has raised some

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kind of doubt, let Urdu version of Ex.P-1 be got translated by the Registry

of this Court.

Mr.Sandhus’ arguments are essentially to the effect that the

appellant was adopted by his natural fathers’ brother, Jhabar, as per the said

document, prior to 1956, i.e. prior to the enactment of the Hindu Adoptions

and Maintenance Act, 1956. In support of this, a document dated 9.9.1958

was executed, which is subsequently stated to have been registered on

27.9.1979, i.e. about 21 years later.

The reading of the aforesaid document reveals that it was

contended by the executor thereof, i.e. Jhabar, that he had adopted the

appellant-plaintiff when he was 7 years old. It is not in dispute that at the

time when the plaintiff testified as PW1 in the year 1981, his age was shown

to be 47 to 48 years, thereby making his year of birth to be 1933 to 1934.

Thus, if the said documents were to be accepted at face value, he would

have been adopted approximately between 1940 to 1941.

However, learned counsel for the respondents has pointed to

paragraph 2 of the plaint, wherein it is the plaintiffs’ own case that he was

adopted after the death of his natural father, Kalu, which took place in the

year 1952, therefore, the first contention of learned counsel for the

respondents is to the effect that the plaintiff himself not even being certain

about the year of his adoption and no specific date having been given in the

document dated 9.9.1958 (Ex.P1), that document, in any case, was not

admissible in evidence, it not being a registered document at that time

and the subsequent registration in 1979, equally obviously, being an after

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thought, prior to institution of the suit in 1981.

Mr.Sandhu further submits that as per Mullas’ Hindu Law,

Chapter 23 (2010 Reprint), page 660, paragraphs 442-447, the adoption was

very much valid, the plaintiff-appellant being within the age group when a

child could be adopted, the adoptive father being unmarried and issueless

and therefore, he already having inherited his fathers’ share in the year

1952, there being no age bar as per the customary law prior to 1956, even

after his adoption, possibly after the age of 18 years, he could still inherit

the property of his adoptive father.

Learned counsel for the respondents, on the other hand, has

again pointed to the fact that the mother of the plaintiff did not support his

case for adoption, stating that she has never given him in adoption, with the

father admittedly having died when the adoption took place. Therefore, as

per Mr.Vashisth, even in terms of the pleadings, it was not a valid adoption.

Mr.Sandhu has tried to justify that the mother, being also the

mother of the respondents, did not side with the plaintiff, he already having

inherited the property from his natural father, and therefore, the question

would be whether the adoption can still be accepted to be valid in the

absence of any other evidence or any adoption ceremony having taken

place.

He has pointed to Ex.P-1 again wherein it is stated that the

adoption ceremony took place in the presence of respectables of the village

and the relatives of the family.

He further submits that this document is validly attested and

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witnessed by Surja Ram, Bala Ram and one more person.

However, in the absence of any witness actually having

testified that he was present at the time when adoption ceremony took

place, it would be difficult to accept the ceremony having been validly

executed.

He still further submits that Ex.P1 was a document that has

now been challenged by learned counsel for the respondents. As regards its

validity, it was actually never ever challenged at any stage prior to the filing

of the suit or even by way of counter claim.

Learned counsel for the respondents has also submitted that if

the averments in the plaint are to be accepted beyond which of course no

evidence could have been led, then the document dated 9.9.1958 (Ex.P1)

cannot be believed, as in the said document the appellant is shown to have

been adopted at the age of 7 years, whereas in the plaint, as already noticed,

he is shown to be adopted approximately at the age of 33 years. He has

further submitted that if the appellant-plaintiff was adopted approximately

between 1940 to 1941, when his father was alive, he in any case, could not

have inherited the property of his father at that time.

Arguments heard.

Judgment reserved.

16.12.2016 (AMOL RATTAN SINGH)
pk JUDGE

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