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Malho vs Kanwal @ Kamal And Ors on 16 May, 2018

RSA No. 5360 of 2015 (OM) 1
RSA No. 4657 of 2016 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

RSA No. 5360 of 2015 (OM)
Date of decision: 16.5.2018

Malho … Appellant
Versus

Kanwal @ Kamal (since deceased) through LRs and another

… Respondents

2 RSA No. 4657 of 2016 (OM)

Malho … Appellant
Versus

Kanwal @ Kamal (since deceased) through LRs and another

… Respondents

CORAM: HON’BLE MR. JUSTICE ARUN PALLI

Present: Mr. Ram Bilas Gupta, Advocate
for the appellant.

Mr. Adarsh Jain, Advocate
for the caveator-respondent.

***

ARUN PALLI, J. (Oral)

Vide this order and judgment, I shall decide RSA Nos. 5360 of

2015 and 4657 of 2016, as both these appeals arise out of the same suit, and

the questions involved for determination are common.

The suit filed by the appellant-plaintiff was partly decreed by

the trial court, vide judgment and decree dated 2.8.2013. Being aggrieved,

both the parties filed their respective appeals against the said decree. But,

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RSA No. 5360 of 2015 (OM) 2
RSA No. 4657 of 2016 (OM)

the appellate court, vide judgment dated 21.4.2015, allowed the appeal

preferred by respondent No.1, and set aside the decree rendered by the trial

court. Thus, as a natural consequence, appeal filed by the appellant-plaintiff

was dismissed. That is how, the appellant-plaintiff is in Regular Second

Appeals before this Court. Parties to the lis, hereinafter, shall be referred to

by their original positions in the suit.

In a suit filed by the plaintiff, she prayed for a declaration that

she was the only heir of Niadar and Smt. Singar Kaur, and, was thus, owner

in possession of the suit land. The revenue entries, and mutations showing

defendant No.1 to be the owner as also in possession of the suit property

were illegal and not binding upon the rights of the plaintiff. Likewise,

relinquishment deed No. 1824 dated 25.6.2001, alleged to have been

executed by the plaintiff in favour of defendant No.1, was null and void, and

ineffective qua the rights of the plaintiff. In brief, the case set out by the

plaintiff was that Niadar, the father of the plaintiff, was owner of the suit

property, who died in the year 1984-85, and as a result, the plaintiff and her

mother (Singar Kaur) inherited his estate. However, defendant No.1-Kanwal

@ Kamal, son of Munshi, got entered his name in the mutation that was

entered upon the death of Niadar. Subsequently, Singar Kaur, mother of the

plaintiff, also died in the year 2002, and the plaintiff being her only heir,

succeeded even to her share in the suit land. But, again the defendant, in

collusion with the revenue agency, got a mutation No. 9330 sanctioned,

showing him to be the son of Niadar. Further, in the year 2001, the defendant

called the plaintiff for the purpose of sanctioning of mutation qua the suit

property in her favour, and brought her to Tehsil premises, Ballabgarh, on

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RSA No. 5360 of 2015 (OM) 3
RSA No. 4657 of 2016 (OM)

25.6.2001, and got her thumb impressions on certain papers, which

subsequently, the plaintiff came to know were used by the defendant for

fabricating some relinquishment deed.

In the written statement filed on behalf of the defendants, it was

pleaded that although Niadar died in the year 1984-85, but his estate was

inherited not only by the plaintiff and Singar Kaur, but also by defendant

No.1, for Niadar, during his lifetime, had adopted defendant No.1-Kanwal @

Kamal as his son. Therefore, even post death of Singar Kaur, defendant

No.1 also inherited her estate to the extent of his share. And, the plaintiff

herself had executed the relinquishment deed in respect of her share in the

suit land in favour of defendant No.1 with her free consent.

The trial court, vide judgment and decree dated 2.8.2013, partly

decreed the suit, as it was held that in terms of Section 10 (iv) of the Hindu

Adoption and Maintenance Act, 1956, a person who has not completed the

age of 15 years, unless there is a custom or usage applicable to the parties,

which permits persons who have completed the age of 15 years being taken

in adoption, may be taken in adoption. But, as in the matter at hands, age of

defendant No.1 was above 15 years on the date of execution of the adoption

deed, dated 26.5.1959, there, indeed, was no valid adoption. However, the

plaintiff failed to prove that relinquishment deed, dated 25.6.2001, was

illegal, null and void, or was a result of any misrepresentation or fraud. That

is how, as indicated above, both the parties filed appeals against the decree

rendered by the trial court.

On a consideration of the matter in issue and the evidence on

record, the first appellate court reached a conclusion that burden of proof to

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RSA No. 4657 of 2016 (OM)

show that relinquishment deeds No. 1824, dated 25.6.2001 (Ex.P9) and

1882, dated 25.6.2001 (Ex. P-8), were a result of misrepresentation or

concealment of facts was upon the plaintiff. However, no evidence was led

by the plaintiff to substantiate the said plea. Rather, the defendants

examined Sh. O.P. Bhati, Advocate,(DW7), who testified in his deposition

that these documents were scribed by him, upon instructions from the

plaintiff. Further, after he scribed the documents, contents thereof were duly

read over and explained to the plaintiff, whereaupon, she affixed her thumb

marks on the document (Ex. P9). Concededly, the relinquishment deed was

duly registered, and, therefore, carried a presumption as regards its due

execution. Nothing was brought on record by the plaintiff to rebut the said

presumption. Therefore, the findings recorded by the trial court in this

regard could not be interfered with.

As regards the issue of adoption of defendant No.1, it was

observed that concededly, Niadar had died on 25.1.1984 and upon his death,

mutation No. 5300 dated 22.11.1985 (Ex.P4), as regards his inheritance, was

sanctioned in favour of Singar Kaur, being his widow, plaintiff (Malho) and

defendant No.1 (Kanwal @ Kamal). Further, the document (Ex.P4) also

revealed that name of defendant No.1 was entered on the basis of an

adoption deed. Likewise, after even Singar Kaur passed away in the year

2000, mutation No.9330 of 2002 (Ex.P5) was sanctioned in favour of

plaintiff and defendant No.1. In the document (Ex.P5), defendant No.1 was

clearly shown as a collateral of the plaintiff in the pedigree table. Both these

documents and the positions reflected therein were never questioned by the

plaintiff till filing of the suit in the year 2009. Besides this, in the copy of

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RSA No. 5360 of 2015 (OM) 5
RSA No. 4657 of 2016 (OM)

sale deed, dated 11.6.1959 (Ex.D1), name of defendant No.1 was mentioned

as son of Niadar. Even in the certified copy of the mutation No. 95 dated

24.11.1959 (Ex.D2), defendant No.1 was shown as an adopted son of

Niadar. So was the position reflected in the lease deed dated 9.1.1967

(Ex.D3), as also in the copy of mutation No. 2839, dated 18.10.1967

(Ex.D4). Not just that, Tek Chand (DW1), testified in his deposition that

ceremonies of adoption were carried out in the year 1954. Likewise, Bhulle

(DW-2), deposed that defendant No.1 was taken in adoption by Niadar and

Singar Kaur in the year 1954 in the presence of respectable of the society.

And, when the natural father of defendant No.1, i.e. Munshi, died, his

property was not inherited by him. Shiv Narain (DW5) also corroborated

the claim of defendant No.1 in his deposition. The issue: whether defendant

No.1 was above 15 years of age, and, therefore, the alleged adoption was

invalid: the document on the basis whereof the trial court had held the

adoption to be invalid, was inadmissible in evidence for it was never proved,

in terms of the Indian Evidence Act, and exhibited on record. Just a

photocopy thereof was produced. And even otherwise, the contents thereof

did not show that defendant No.1 was taken in adoption in the year 1959.

Rather, it reveals that adoption had already taken place and Niadar had done

rearing and bearing of defendant No.1 by birth. It appeared that as no formal

document was executed at the time of adoption, the adoption deed dated

26.5.1959 was recorded to acknowledge the rights of defendant No.1, as an

adopted son of Niadar. Thus, it was concluded that the fact that defendant

No.1 was taken in adoption in the year 1954 was duly substantiated on

record. Further, as per document (Ex.P20), the date of birth of defendant

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RSA No. 4657 of 2016 (OM)

No.1 was 4.10.1941, therefore, adoption of defendant No.1 could not be

termed as invalid. Thus, the only and the inevitable conclusion that could be

reached: the suit filed by the plaintiff was devoid of merit and, was thus,

liable to be dismissed. On being pointedly asked, learned counsel for the

appellant could not show as to how, the findings recorded by both the courts

were either contrary to the record or suffered from any material illegality.

No question of law, much less any substantial question of law,

arises for consideration. The appeals being devoid of merit, are accordingly

dismissed.

16.5.2018 ( ARUN PALLI )
AK Sharma JUDGE

Whether speaking / reasoned: YES
Whether Reportable: NO

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