RSA No.4123 of 2012 (OM) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
RSA No.4123 of 2012 (OM)
Date of decision : 29.01.2018
Rajwant Kaur Hundal
Irvindeep Kaur Hundal and another
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
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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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
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
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
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
“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
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)
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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