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Rajwant Kaur vs Irvindeep Kaur Hundal & Anr on 29 January, 2018

RSA No.4123 of 2012 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

RSA No.4123 of 2012 (OM)
Date of decision : 29.01.2018

Rajwant Kaur Hundal

…Appellant

Versus

Irvindeep Kaur Hundal and another

…Respondents

CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL.

Present: Mr. R.S. Narang, Advocate for the appellant.

Mr. S.S. Rangi, Advocate for respondent No.1.

Mr. Maninder Singh, Advocate for respondent No.2.

****

ANIL KSHETARPAL, J.

The plaintiff-appellant is in the Regular Second Appeal against

the concurrent findings of fact arrived at by both the Courts below.

The plaintiff had filed a suit for declaration challenging the

validity of the Adoption Deed dated 26.11.1999 executed on behalf of her

husband-Manmohan Singh. The suit was filed in the year 2010. It was

claimed that the adoption was without her consent and hence adoption is not

valid being in violation of the provision of Section 7 of the Hindu Adoption

and Maintenance Act, 1956.

The adoptive daughter was impleaded as defendant No.1. She

contested the suit and pleaded that she has been adopted through the

registered Adoption Deed dated 26.11.1999 and the plaintiff had given her

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RSA No.4123 of 2012 (OM) -2-

consent by way of affidavit dated 22.09.1999 sworn by her at Ontario,

Canada and sent to India enabling adoption.

Both the Courts after appreciation of the evidence available on

the file recorded the concurrent findings of fact that the consent of the

plaintiff is proved from the affidavit, as also from the registered Adoption

Deed, wherein this fact is recorded that the adoptive mother has given

consent.

I have heard the learned counsel for the parties at length and

with their able assistance gone through the judgments passed by both the

Courts below as well as the records.

Learned counsel for the appellant has vehemently submitted

that in absence of the consent of the adoptive mother, no adoption can take

place by referring to the provision of Section 7 of the Hindu Adoption and

Maintenance Act, 1956. He has further submitted that it was for the

defendants to prove that the plaintiff had given consent, whereas the Courts

have wrongly placed onus on the plaintiff. He has further submitted that the

alleged affidavit has been forged by Manmohan Singh, her husband. He has

further submitted that the Courts below have wrongly dismissed the suit

filed by the plaintiff being barred by the law of limitation. He has submitted

that the plaintiff came to know about the adoption in November, 2009.

On the other hand, learned counsel for the respondents has

submitted that the suit is barred by limitation as the registered Adoption

Deed was executed on 26.11.1999, whereas the suit was filed only in the

year 2010, after a period of more than 10 years. He has further submitted

that basically now the husband and wife have colluded and the plaintiff has

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filed a suit whereas defendant No.2, the husband has not chosen to appear in

the Court. He has further submitted that in fact the suit has been filed by the

plaintiff in collusion with her In-laws as she admits that she is residing in

her In-laws house and mother-in-law and father-in-law have come

alongwith her in the Court complex.

With regard to the consent of the plaintiff, it is significant to

note that the plaintiff was residing in Canada. She had executed an affidavit

dated 22.09.1999 specifically giving her consent to the adoption by her

husband Manmohan Singh Hundal. Although, learned counsel for the

appellant has submitted that such document has not been proved on the file,

however, the affidavit was sworn and attested by the Notary Public in

Canada. Defendant No.1 has never visited Canada. It was for the plaintiff to

explain as to how this affidavit was executed. Still further, the Deed of

Adoption records that the adoptive mother has given her full and free

consent to the adoptive father to take child in adoption. The Deed of

Adoption dated 26.11.1999 is registered. As per Section 16 of the Hindu

Adoption and Maintenance Act, 1956, a registered document has a statutory

presumption to the effect that the adoption has taken place in accordance

with the provision of this Act. Section 16 of the Hindu Adoption and

Maintenance Act, 1956 is extracted as under:-

“16. Presumption as to registered documents relating to
adoption- Whenever any document registered under any law
for the time being in force is produced before any court
purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption,
the court shall presume that the adoption has been made in

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compliance with the provisions of this Act unless and until it
is disproved.”

In view of the statutory presumption, it was for the plaintiff to

rebut the aforesaid presumption. Both the Courts have held that the plaintiff

has failed to rebut the aforesaid presumption.

Second argument of the learned counsel is that the Court has

wrongly placed onus to prove on the plaintiff that she had not given her

consent whereas onus should be on the defendants. This Court finds that the

argument does not have substance. Once, the plaintiff is asserting a

particular fact, it was for the plaintiff to prove that fact. The defendants

cannot be called upon to prove that she had also given consent. In any case

as discussed earlier, consent of the plaintiff stands proved.

Learned counsel for the appellant has further submitted that the

affidavit of the plaintiff was forged by her husband-Sh. Manmohan Singh.

However, the plaintiff has failed to produce any evidence in this regard and

also failed to prove that the affidavit, Mark-C is not signed by her. The onus

was heavy on the plaintiff to prove this fact.

Last argument of the learned counsel for the appellant is that

the suit filed by the plaintiff is within limitation as the plaintiff acquired

knowledge only in the year 2009. Adoption Deed is a registered document.

It was registered on 26.11.1999. It is recorded in the Deed of Adoption that

the adoption had taken place on 14.11.1999. Once a document is registered,

such registered document is to the knowledge of everyone. Hence, the

Courts have rightly concluded that the suit filed by the plaintiff was barred.

Learned counsel for the appellant finally submitted that

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ceremonies of giving and taking have not been proved. This argument is to

be noticed and rejected because once in the registered Adoption Deed, this

fact is recorded and not disputed by Manmohan Singh, adoptive father, the

plaintiff cannot be heard to say that the required ceremonies were not

performed. She was not present at the time of adoption. As per the

requirement of the Hindu Adoption and Maintenance Act, only ceremony

required is giving and taking which has been specifically recorded in the

registered Adoption Deed.

In view thereof, there is no scope for interference with the

concurrent findings of fact arrived at by both the Courts below.

Regular Second Appeal is dismissed.

All the pending miscellaneous applications, if any, shall stand

disposed of in terms of the aforesaid judgment.

29.01.2018 (ANIL KSHETARPAL)
Pawan JUDGE

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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