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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