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Mange Ram And Ors vs Parkash And Ors on 22 May, 2018

Regular Second Appeal No.6049 of 2017 (OM) {1}


R.S.A.No.6049 of 2017 (OM)
Date of Decision: May 22, 2018

Mange Ram others
Parkash others


Present: Mr.Virendra Rana, Advocate,
for the appellants.



CM No.15851-C of 2017

For the reasons mentioned in the application, which is

supported by an affidavit, delay of 46 days in filing the appeal is condoned.

CM stands disposed of.

RSA No.6049 of 2017

Appellant-plaintiffs are aggrieved of the concurrent findings,

whereby the suit for declaration claiming ownership of the suit property as

per Will dated 13.7.1977 registered on 14.7.1977 and correction of the

revenue record and challenge laid to the adoption deed dated 26.5.1995 in

favour of defendant No.1, has been dismissed by the trial Court and

affirmed by the Lower Appellate Court.

Appellant-plaintiffs instituted the suit on the premise that the

suit property was owned and possessed by Tohfa Devi widow of Khem

Singh @ Khem Chand, died issueless on 12.2.2014. Plaintiff Nos.1 to 3

were the real brothers and plaintiff No.5 being nephew, whereas defendant

No.1 was the adopted son, who was arrayed as defendant No.1 for claiming

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Regular Second Appeal No.6049 of 2017 (OM) {2}

to be adopted son of Tohfa Devi. She, during her life time, executed the

Will aforementioned, which was read over and explained to her and

accordingly was registered with the concerned Registrar. By virtue of the

Will, Tohfa Devi bequeathed both immovable and immovable properties in

her ownership, but defendant No.1 got the mutation on the basis of the

natural succession, i.e., mutation No.3001 dated 9.6.2004 claiming himself

to be adopted son, but when he did not accede to the request for

rectification, thus, suit aforementioned was filed.

The defendants contested the suit on the premise that defendant

No.1 was the adopted son of Tohfa Devi through a registered adoption deed

dated 26.5.1995 when he was six years old and since then he had been

living with her as her son, therefore, the plaintiffs being the brothers are

collateral of Tohfa Devi. The ceremonies of give and take were also

performed. Even the last rites of Tohfa Devi were performed by respondent-

defendant No.1. In the school record, his father’s name might be got

recorded as Madan Singh, but the same was without his knowledge.

Defendant Nos.2 and 3 filed separate written statement and

challenged the maintainability of the suit and denied that the adoption deed

was a fraudulent act. The trial Court dismissed the suit on the premise that

the plaintiffs failed to prove the original Will, though secondary evidence

was permitted, but yet discarded the same on the ground that there were

certain suspicious circumstances. The appeal laid before the Lower

Appellate Court also met with the same fate.

Mr.Virendra Rana, learned counsel appearing on behalf of the

appellant-plaintiffs submitted that the judgments and decrees of the Courts

below are suffering from illegality and perversity as there are contradictions

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Regular Second Appeal No.6049 of 2017 (OM) {3}

in the date of birth of respondent-defendant Parkash. The date of birth had

been shown as 13.3.1975 in the birth certificate issued by the Chief Medical

Officer, Bhiwani and as per that, he would have been 20 years of age and

the person beyond 15 years cannot be adopted except the circumstances

expressed in the proviso. Thus, the defendants failed to prove that he was

adopted son. In the absence of the same, the suit property was required to

devolve upon the appellant-plaintiffs being Class-II heirs, thus, the

ceremonies of give and take have also not been proved and, therefore,

presumption under the provisions of Hindu Adoption and Maintenance Act

could not have been drawn in favour of defendant No.1. The Will has been

proved through the testimony of PW-1 Rajbir Singh, PW6 Om Parkash and

PW-7 Raghubir Singh. Om Parkash Deed Writer deposed that Tohfa Devi

had prepared the Will in favour of the plaintiffs bequeathing the suit

property in equal share and brought on record the register Ex.P1/A and,

thus, urged this Court for setting-aside the findings under challenge by

allowing the appeal.

I have heard the learned counsel for the appellant-plaintiffs,

appraised the paper book and of the view that there is no force and merit in

the submissions of the learned counsel, for, there is categoric admission of

the plaintiffs that at the time of execution of the Will, i.e., beneficiary of the

Will, participated in its execution, which is not permissible in law. The

aforementioned view of mine is derived from the ratio decidendi culled out

by the Hon’ble Supreme Court in Niranjan Umeshchandra Joshi Versus

Mrudula Jyoti Rao and others, 2007 AIR SC 614.

On the contrary, register of PW-6 Om Parkash Ex.P1/A did not

decipher as to whose thumb impression was as no name was written

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Regular Second Appeal No.6049 of 2017 (OM) {4}

underneath. The adoption deed dated 26.5.1995 is a registered document,

which carries presumption as per Section 16 of the Act, which reads as


“16. Presumption as to registered documents relating to

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

The appellant-plaintiffs had not been able to belie its contents

and, therefore, the plea of valid adoption deed or age is neither here nor

there and this is what the import of the judgment and decree of the Lower

Appellate Court.

For the reasons stated above, no ground for interference is

made out, much less any substantial question of law. Resultantly, the appeal

is dismissed.

May 22, 2018 ( AMIT RAWAL )
ramesh JUDGE

Whether speaking/reasoned Yes/No

Whether Reportable: Yes/No

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