(O&M;) Tarlok Singh vs Kirpal Singh on 17 January, 2018

RSA No.1295 of 1988 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

RSA No.1295 of 1988 (OM)
Date of decision : 17.01.2018

Tarlok Singh

…Appellant

Versus

Kirpal Singh (deceased) through his LRs

…Respondent

CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL.

Present: Mr. Sanjay Majithia, Sr. Advocate with
Mr. Inderjeet Singh, Advocate for the appellant.

Mr. P.S. Thiara, Advocate for
LRs of respondent No.1.

****

ANIL KSHETARPAL, J.

The defendant-appellant is in the Regular Second Appeal

against the judgment passed by the learned Additional District Judge, the

First Appellate Court, reversing the judgment passed by the trial Court.

In the considered opinion of this Court, following substantial

questions of law needs determination:-

(I). Whether a document which is not required to be attested by marginal

witnesses but is registered as per the provision of the Registration

Act, 1908 can only be proved on examination of attesting witnesses?

(II). Whether the judgment passed by the First Appellate Court is result of

mis-reading and non-reading of the material evidence available on the

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file?

FACTS

Dispute in the present case is with respect to the property

owned by late Sh. Sohan Singh. The plaintiffs are brothers of Sohan Singh

namely Kirpal Singh and Mohan Singh, whereas defendant-appellant-Tarlok

Singh claims himself to be adopted son of Sohan Singh and hence owner of

the property. Sohan Singh died on 23.08.1983. It is the case of the

defendant-appellant that he was adopted by Sohan Singh in the year 1962-

63 and ceremonies of adoption were performed at that time. It is further the

case of the defendant-appellant that on 12.12.1972, Sohan Singh and Gurdit

Singh (natural father of Tarlok Singh, defendant-appellant) executed and

got registered a Memorandum of Adoption acknowledging the factum of

adoption having been taken place approximately 9 years back.

Learned trial Court, on appreciation of the evidence, dismissed

the suit filed by the plaintiffs after recording a finding that the adoption of

Tarlok Singh by Sohan Singh and Hardial Kaur (wife of Sohan Singh) has

been proved.

Learned First Appellate Court reversed the finding by giving

the following reasons:-

1. Execution of the Memorandum of Adoption dated 12.12.1972 Ex.D1

is not proved as attesting/marginal witnesses have not been examined.

2. Consent of Hardial Kaur wife of Sohan Singh is not proved at the

time of the execution of Ex.D1 i.e. a Memorandum of Adoption dated

12.12.1972.

3. Adoption is not valid as consent of Nasib Kaur wife of Gurdit Singh

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(natural mother of Tarlok Singh) has not been proved at the time of

the execution of the Memorandum of Adoption dated 12.12.1972.

4. Tarlok Singh after knowing that Sohan Singh has died issueless,

wants to grab the property of Sohan Singh.

5. Ceremonies of adoption like giving and taking are not been proved.

Stage now set for considering the questions of law.
(I). Whether a document which is not required to be attested by marginal
witnesses but is registered as per the provision of the
Registration Act,
1908 can only be proved on examination of attesting witnesses?

A Memorandum of Adoption Ex.D1 dated 12.12.1972 is not

required to be attested by the two attesting/marginal witnesses. Provisions of

the Hindu Adoption and Maintenance Act, does not require that deed of

adoption or Memorandum of Adoption must be attested by

attesting/marginal witnesses. In the present case, the Memorandum of

Adoption has been proved from the statement of Gurdit Singh (natural

father of Tarlok Singh) who has appeared as DW3. The defendant-appellant

has also examined Scribe-Hukam Chand as DW1. Gurdit Singh is one of the

Executant of the document. No doubt, the Memorandum of Adoption is

attested by two marginal witnesses, however, once the document is not

required to be attested, examination of the attesting witnesses cannot be

considered mandatory before the Memorandum of Adoption can be held to

have been proved. Once one of the Executant and Scribe has been

examined, the document stood proved in accordance with law.

Memorandum of Adoption is registered under the Indian

Registration Act, 1908. Registered document has a presumption of

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genuineness having been registered by the Registrar in discharge of his

official functions. In view thereof, question No.1 is answered in favour of

the appellant.

(II). Whether the judgment passed by the First Appellate Court is result of
mis-reading and non-reading of the material evidence available on the file?

Learned First Appellate Court has held that consent of Hardial

Kaur, (the adoptive mother) and Nasib Kaur (natural mother) are not proved

at the time of the execution and registration of the Memorandum of

Adoption dated 12.12.1972 and hence, provision of Sections 7 and 9 of the

Hindu Adoptions and Maintenance Act, 1956 had been violated.

The learned First Appellate Court has overlooked the fact that

Ex.D1, the Memorandum of Adoption is not a Deed of Adoption. It is only a

Memorandum of Adoption acknowledging that adoption has taken place

approximately 9 years before the date of the execution of the Memorandum

of Adoption.

No doubt, the consent of natural mother and adoptive mother is

necessary as per the provisions of Sections 7 and 9 of the Hindu Adoptions

and Maintenance Act, 1956 at the time of adoption. However, consent is not

required at the time of execution of the Memorandum of Adoption. In the

present case, Gurdit Singh, the natural father has appeared as DW3. He has

deposed that Sohan Singh and his wife had given consent for taking Tarlok

Singh in adoption and that is how Tarlok Singh was put in the lap of Sohan

Singh. Gurdit Singh also says that the adoption had taken place with his and

his wife’s consent. Therefore, the requirement of Sections 7 and 9 of the

Hindu Adoptions and Maintenance Act, 1956 stood complied with.

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It is further proved on the file from the evidence of Tarlok

Singh and Gurdit Singh that after adoption, Tarlok Singh lived in the

Village Smalsar i.e. the place of residence of Sohan Singh. Sufficient

evidence have been produced on file to prove that Tarlok Singh was married

by Sohan Singh. Invitation Card for marriage of Tarlok Singh, which is part

of the record, proves that Sohan Singh had invited near relations as a father

of Tarlok Singh. Mother-in-law of Tarlok Singh, Surjit Kaur has also

appeared in the witness-box as DW2 and has proved that fact.

Next reason assigned by the Court against the defendant-

appellant is that he wants to grab the property. In the considered opinion of

this Court, evidence available on the file is otherwise/to the contrary. It is

not in dispute that brothers were in litigation against each other. The

complaint filed by Kirpal Singh under Section 324/34 IPC is Ex.DW5/X

against Sohan Singh. Copy of the FIR registered by Sohan Singh against his

brothers who are plaintiffs is Ex.DW8/A. The defendants have led evidence

to prove that brothers had fought and plaintiff had beaten up Sohan Singh

who suffered injuries at the hands of his brothers and in a criminal case,

brothers-plaintiffs were convicted. Kirpal Singh when appeared as PW1 has

admitted that he was released on probation. Kirpal Singh has also admitted

that Sohan Singh had even filed a suit for compensation of `10,000/- against

him which was pending at the time of death of Sohan Singh. Tarlok Singh

has proved on file the Voter List to prove that he has been shown as son of

Sohan Singh. Most material document which has come on record is

Ex.DW5/X, the complaint filed by Kirpal Singh, the plaintiff, wherein

Tarlok Singh has been shown as adopted son of Sohan Singh. It has further

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come in evidence that Sohan Singh use to resides separately from his

brothers.

In view of this overwhelming evidence, the first Appellate

Court wrongly assumed that Tarlok Singh was out to grab the property of

Sohan Singh. In fact, from the evidence available on the file, it is proved

that it was the brothers of Sohan Singh-plaintiff who were after his property.

Last reason given by the First Appellate Court is that the

ceremonies of giving and taking are not proved on the file. This finding of

the first Appellate Court is also result of non-reading of the material

evidence available on the file. Gurdit Singh (natural father of Tarlok Singh)

has appeared as DW3. He has specifically stated that he with the consent of

his wife had put Tarlok Singh in the lap of Sohan Singh. The wife of Sohan

Singh, Hardial Kaur had given consent. It is further recorded in the

Memorandum of Adoption Ex.D1, a registered document, that at the time of

adoption, all ceremonies of adoption were completed and sweets were

distributed. The Hindu Adoptions and Maintenance Act, 1956 does not

prescribe for performance of a particular ceremony for validly carrying out a

adoption. The adoption can take place on natural parents giving the child in

adoption to adoptive parents. Still further, as per Section 16 of the Hindu

Adoptions and Maintenance Act, 1956, a presumption of correctness is

available to the registered documents relating to the adoption. In the present

case, the Memorandum of Adoption is a registered document, which carries

a presumption.

In view of the discussions made above, it is clear that the

judgment passed by the learned First Appellate Court was result of mis-

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reading of the material evidence. In view thereof, the question No.2 is also

answered in favour of the appellant.

Keeping in view the discussions made above and answer to

both the questions, the Regular Second Appeal filed by the defendant-

appellant is allowed while setting aside the judgment and decree passed by

the first Appellate Court dated 03.05.1988.

Resultantly, the judgment of the trial Court is restored.

All the pending miscellaneous applications are disposed of, in

terms of the abovesaid judgment.

17.01.2018 (ANIL KSHETARPAL)
Pawan JUDGE

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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