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Satish Kumar vs Sarjo Devi & Ors on 16 October, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 10th October, 2019
Decided on : 16th October, 2019

+ RFA 962/2018 CM APPL No.49743/2018, 1365-66/2019

SATISH KUMAR ….. Appellant
Through : Mr.Naveen Kr Raheja, Advocate
versus
SARJO DEVI ORS ….. Respondents
Through : Mr.Pinaki Addy and Ms.Arpita
Singh, Advocates.
CORAM:
HON’BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. This appeal is preferred by the appellant/defendant No.1 against
the judgment and preliminary decree dated 24.07.2018 passed by the
learned Additional District Judge-5/South-West District, Dwarka Courts,
Delhi (hereinafter referred as the learned Trial Court) in CS
No.369/2017.

2. The brief facts that led to the passing of the impugned judgment
dated 24.07.2018 are the respondent no.1/Smt.Sarjo Devi had filed Civil
Suit for partition in respect of Jhuggi No.450, Indra Camp No.5, Vikas
Puri, New Delhi (hereinafter referred as the ‘Vikaspuri Property’) and for
permanent injunction against appellant herein claiming the appellant was
though her son but given in adoption to Ram Kishan, the brother of her
deceased husband and since then she had no contact with the appellant
till the year 2016 when the appellant had come to her and had requested

RFA No.962/2018 Page 1 of 10
her to allow him to stay in her Vikaspuri property, which she allowed but
later he refused to vacate it despite issuance of a legal notice 19.09.2016
to him by the respondent.

3. Appellant contested the suit and had filed written statement
disputing the alleged adoption and claimed besides the Vikaspuri
Property, late Prem Singh, his father and late husband of his mother/
respondent No.1 had also left behind yet another property bearing
No.76/A, New Hari Krishan Nagar, Nilothi Extension, Delhi (hereinafter
referred as the ‘Nilothi Extension Property’).

4. Issues were framed by the learned Trial Court vide order dated
26.05.2017.

5. A counter claim was also filed by the appellant herein on
28.11.2017 claiming partition in Nilothi Extension Property stating inter
alia such property be also included in the cluster of joint properties for
the purpose of this partition. Such counter claim was taken on record and
after the evidence, vide the impugned judgment, learned Trial Court held

a) adoption of the appellant could not be proved; b) Vikaspuri Property
was the only property owned by late Prem Singh; and c) the ownership of
Nilothi Extension Property in the name of late Prem Singh could never be
proved by either of the parties.

6. In this appeal, the cross objections were also filed vide CM
No.1366/2019. This Court while dealing with the appeal passed the
following orders:-

Order dated 30.11.2018
“3. In terms of the impugned judgment the suit filed by the respondent
no.1/plaintiff/widow was decreed against the appellant/defendant

RFA No.962/2018 Page 2 of 10
no.1/son with respect to the property belonging to the late husband of
the respondent no. 1 i.e. the father of the appellant. This property with
respect to which a preliminary decree for partition has been passed is
the property being jhuggi no. 450, Indira Camp no. 5, Vikas Puri,
Delhi.

4. The appellant/defendant no. 1 had however filed a counterclaim that
his father and the husband of the respondent no. 1/plaintiff also owned
another property bearing no. 76-A, New Hari Kishan Nagar, Nilothi
Extension, Delhi, and therefore partition be also ordered of this Nilothi
Extension property. Trial court has dismissed the counter claim filed by
the appellant/defendant no.1 on the ground that the appellant
no.1/defendant no. 1 failed to prove that the Nilothi Extension property
was owned by his father Sh. Prem Singh, the late husband of
respondent no. 1/plaintiff.

5. Learned counsel for the appellant has drawn the attention of this
Court to the cross-examination of the respondent no. 1/plaintiff
wherein she has admitted that the Nilothi Extension property belonged
to her late husband Sh. Prem Singh. Once that is so, partition decree
will have to be passed also for the Nilothi Extension property.
Admittedly, respondent no. 1/plaintiff is living in this Nilothi Extension
property with her other son, and who is the brother of the appellant,
namely, Sh. Sandeep. Under Section 106 of the Indian Evidence Act a
person must file all documents in his power and possession which are
relevant to determine an issue, and the respondent no. 1/plaintiff as
also the defendant nos. 2 and 3/respondent nos. 2 and 3 would very
much know the capacity in which they are living in the Nilothi
Extension property. Respondent nos. 2 and 3/defendant nos. 2 and 3
have conveniently chosen to remain ex-parte, and therefore in the
prima facie opinion of this Court the admission by the respondent
no.1/plaintiff in her cross examination on 6.9.2017 that the Nilothi
Extension property belonged to her husband Sh. Prem Singh, the suit
for partition will have to be decreed with respect to not only the
property at jhuggi 450, Indira Camp no. 5, Vikas Puri, Delhi but also
with respect to house bearing no. 76-A, New Hari Kishan Nagar,
Nilothi Extension, Delhi.

6. Counsel for the respondent no.1/plaintiff at this stage seeks an
adjournment to file on record the documents of title of the Nilothi
Extension property, and which according to the respondent
no.1/plaintiff may show that Nilothi Extension property may not be
owned by late Sh. Prem Singh.

7. Accordingly, list on 6th March, 2019.

8. Counsel for the respondents will file photocopies of the title
documents of the Nilothi Extension property at least two weeks before
the next date of hearing and bring the originals thereof in Court on the
next date of hearing.

9. Till further orders unless varied by the Court there shall be stay of
operation of the impugned judgment dated 24.7.2018 in Civil Suit
No.369/2017 titled as Smt. Saroj Devi Vs. Satish Kumar and Ors.
passed by the Court of Mohd. Farrukh, ADJ Pilot Court South-West
District, Dwarka Courts, New Delhi.”

ORDER dated 15.03.2019
“1. The order, dated 30th November, 2018, passed in this appeal,
records the fact that learned counsel appearing for the respondent,
who was the plaintiff before the learned Trial Court, had sought an
RFA No.962/2018 Page 3 of 10
adjournment to file, on record, the documents of title regarding the
property at House No. 76-A, New Hari Kishan Nagar, Nilothi
Extension, New Delhi (hereinafter referred to as “the Nilothi
Extension property”), in order to demonstrate that the said property
did not belong to Late Shri Prem Singh, who is the father of the
appellant and the husband of the defendant.

2. In view of the said submission, this Court had directed the
respondents to file photocopies of the title documents of the Nilothi
Extension property, within two weeks and bring the originals of the
said documents to this Court on the next date of hearing.

3. Further opportunity, in this regard, was granted on 6th March,
2019.

4. Today learned counsel for the respondent submits that there are,
in fact, no title documents available in respect to the Nilothi
Extension
property.

5. This Court had already observed in its order, dated 30 th November,
2018, that as she is residing in the said property, Section 106 of the
Indian Evidence Act, 1872, cast onus was on the respondent to file
documents, under establishing that the Nilothi Extension property did
not belong to Late Shri Prem Singh and that in the absence thereof, the
impugned judgment of the learned Trial Court could not sustain, as it
directed partition only of the property at jhuggi No. 450, Indira Camp,
Vikas Puri, Delhi, without directing the partition of the Nilothi
Extension property.

6. This Court had noted the fact that, in her cross-examination, the
respondent admitted the fact that the Nilothi Extension property
belonged to late Shri Prem Singh. Keeping in view the said fact, this
Court observed, prima facie, that the decree for partition would
necessarily have to envelope the Nilothi Extension property.”

7. The learned counsel for the appellant has thus argued Nilothi
Extension Property ought to have been included in the partition suit. It
would be appropriate here to refer to issue No.2, as framed by learned
Trial Court. It reads:-

“2. Whether the suit property bearing Jhuggi no.450, situated at Indira
Camp no.5, Vikas Puri, Delhi and property measuring 50 sq.yds. which
is situated at Nilothi Extension bearing House no.76 A New Hari
Kishan Ngar, Nilothi Extension, Delhi, are the joint properties of the
parties of the suit, if so as to what share the parties are entitled to?
(onus to prove is on parties)”

8. The onus to prove this issue was upon both the parties. There was
an admission by the respondent No.1 that Vikaspuri property was owned
by her late husband-Prem Singh, though respondent no.1 did not file any
document of ownership qua such property. The appellant in the counter
RFA No.962/2018 Page 4 of 10
claim averred the Nilothi Extension Property was also the property
owned by his deceased father – late Prem Singh and hence it be also
included in the cluster of joint properties for the purpose of partition. The
learned Trial Court though held there is no dispute qua the Vikaspuri
Property being owned by late Prem Singh, but since the appellant could
not prove Nilothi Extension Property was also owned by late Prem Singh
and since no document of ownership was ever produced or proved on
record by the appellant herein, hence in view of specific denial by the
respondents qua the ownership of Nilothi Extension Property, the said
property was not included in the properties meant for partition and hence
the counter claim of the appellant was dismissed.

9. Heard.

10. I may here refer to the examination-in-chief of respondent No.1,
when she appeared as PW1 during trial and in her evidence affidavit she
did not utter a single word about the ownership of Nilothi Extension
Property where she has been residing for the last more than 20 years. The
onus to prove such property belong to late Prem Singh was upon both the
parties, including the respondent No.1 also. In her cross examination,
held on 06.09.2017, the respondent No.1 had categorically admitted the
Nilothi Extension Property too belong to her late husband namely Prem
Singh. There is no denial of the fact she has been residing along with her
family members in this very property since last more than 20 years. No
ownership document qua Nilothi Extension Property was either produced
by respondent No.1 as to whether it belong to any person other than her
late husband Prem Singh. This is the position even qua Vikaspuri

RFA No.962/2018 Page 5 of 10
Property as parties also did not file any ownership document for this
property either.

11. Now, once the respondent No.1 herein in her cross-examination
had admitted Nilothi Extension Property was owned by her deceased
husband Prem Singh it ought to have been included in the pool of the
joint properties and a similar order ought to have been passed qua Nilothi
Extension Property as was passed qua Vikaspuri property, though with a
rider the status of the properties would be in the estate of the Prem Singh
and the person claiming through him and such finding will have no effect
on the third person having any independent right in the properties. This
would also take care of the plea raised by the respondent No.1 before this
Court that Nilothi Extension Property is in an unauthorised area and the
Khatoni shows such land stood in the name of one Mahender.

12. Admittedly, the respondent No.1 is not paying any rental of Nilothi
Extension Property to anyone, much less, to the alleged owner since last
more than 20 years and is residing therein as an owner of property.
Neither such Mahender nor any one else has either filed any suit till date
claiming any independent right in respect of such property, hence this
property also need to be included for the partition amongst the parties and
to this effect the impugned judgment and decree need modification.

13. The second limb of argument raised is qua the legality of adoption
of appellant. Admittedly, no datta homam or any other ceremony of
handing over or taking over of child was ever proved by the respondents.
A bare perusal of evidence affidavit of PW1 reveals the appellant herein
was given to Sh.Ram Kishan, the brother of her husband and that Shri
RFA No.962/2018 Page 6 of 10
Ram Kishan had always treated the appellant as his son. However, the
wife of Ram Kishan has denied this fact. Rather PW1, i.e. the respondent
in her cross-examination had also deposed the appellant to be her son and
no document of adoption being available with her.

14. DW3 Kailasho Devi, wife of Ram Kishan, the alleged adoptive
mother of the appellant herein on the other hand, in her evidence affidavit
had categorically denied that Ram Kishan – her husband ever adopted the
appellant herein and there was never any adoption deed executed.
Though, the learned counsel for the respondent has taken resort to the
cross-examination of Smt.Kailasho Devi (DW3) wherein she had deposed
that she looked after the appellant as her son and that the appellant was
brought to her when he was only two months old and was given to her by
late Prem Singh saying he would come back after about 30 years to take
the appellant back, but did not come and hence she used to maintain and
lookafter the appellant. However, she also deposed though she had
conducted the marriage of appellant but the name of Prem Singh, the
natural father of the appellant was shown in the marriage card and
admittedly, all identification documents of appellant reveal the parentage
of appellant to be of Late Prem Singh, his natural father and not Ram
Kishan, the alleged adoptive father.

15. The learned Trial Court in the impugned judgment has also dealt
with this issue in the following manner:-

“12. The onus to prove this issue is placed on the plaintiff. The case set
out by the plaintiff in her plaint is that defendant no.1 has no right, title
or interest in the suit property of her deceased husband i.e. Prem Singh
who is also the father of defendants as defendant no.1 has already been
given in adoption to late Shri Ram Kishan when defendant no. 1 was
aged about one and a half years. In order to prove her case, the
plaintiff has examined herself as PW1 and filed her affidavit in lieu of
RFA No.962/2018 Page 7 of 10
examination in chief deposing the aforesaid fact of adoption besides
other averments, however, she has not filed any material or document
to show adoption of defendant no.1 by late Sh.Shri Ram Kishan. No
details with regard to the adoption are set out in the plaint.
Significantly, the plaint filed by the plaintiff does not mention even the
date of adoption. No reference is made to any ceremony having been
performed for adoption. There is also no allegation that there was a
formal giving and taking as held in Kishorilal vs. Challibai AIR 1959
SC 504, where it was held that the evidence in support of the case of
adoption should be such that it is free from all suspicion of fraud and
so consistent and probable as to leave no occasion for doubting its
truth. The Hon’ble Supreme Court pointed out that as an adoption
results in changing the course of succession, transferring properties
to comparative strangers or more remote relations, it is necessary that
the evidence to prove the adoption should be of such a nature as would
not leave any alternative to the Court to accept the same. In the present
case, the plaintiff has examined Smt. Phoolwati who is the mother of
the plaintiff and she deposed in her affidavit that Sh.Ram Kishan
adopted the defendant no.1 as his own son when defendant no.1 was
aged about one and a half years and since then he resided with Sh.
Ram Kishan as his adopted son, however, in her cross examination, she
deposed that she did not know the contents of her affidavit in evidence
Ex. PW2/A. She deposed that no document was prepared at the time of
adoption of defendant no.1 by his uncle. In A. Raghavendra vs. A.
Chenchamma [1964] 2 SCR 933 it was laid down by the Hon’ble
Supreme Court that a person who seeks to displace the natural
succession to property by alleging an adoption, must discharge the
burden that lies upon him by proof of the factum of adoption and its
validity. In the present case, the plaintiff has failed to prove by leading
any positive and affirmative evidence that defendant no.1 was in fact
given in adoption by her or her husband to Ram Kishan.

13. Per contra defendant no.1 in his evidence has proved on record his
school leaving certificate as Ex.DW1/4 showing that the school record
of defendant no.1 shows the name of his biological father of Prem
Singh as his father. The said school leaving certificate was issued
on 16.04.2003. Defendant no.1 has also tendered in evidence his voter
ID card which is Ex.DW1/1, Aadhar Card as Ex.DW1/2, driving
license as Ex.DW1/3, his health card as Ex.DW1/5 showing deceased
Prem Singh as his father. Counsel for the plaintiff heavily relied upon
the cross examination of DW1 to contend that defendant no.1 admitted
that he was two months old when his parents sent him to his uncle,
however, plaintiff has not proved the ceremony of giving and taking
over. The ceremony of actual giving and taking over is necessary with
intent to transfer the child from the family of its birth to the family of its
adoption. Though there is no particular mode of manner of giving and
taking over, however, there have to be some act of giving and taking
over. There is no adoption deed proved on record.

14. Their Lordships of the Hon’ble Supreme Court in SectionLakshman Singh
Kothari v. Smt. Rup Kanwar, : AIR 1961 SC 1378 (V 48 C 258), 1378
have held that transfer of adoptive boy by ceremony of giving and
taking is essential, though no particular form is prescribed. Their
Lordships have held as under:

RFA No.962/2018 Page 8 of 10

“10. The law may briefly stated thus: Under the Hindu Law,
whether among the regenerate caste or among Sudras, there
cannot be a valid adoption unless the adoptive boy is
transferred from one family to another and that can be done
only by the ceremony of giving and taking. The object of
corporeal giving and receiving in adoption is obviously to
secure due publicity. To achieve this object, it is essential to
have a formal ceremony. No particular form is prescribed for
the ceremony, but the law requires that the natural parent
shall hand over the adoptive boy and the adoptive parent shall
receive him. The nature of the ceremony may vary depending
upon the circumstances of each case. But a ceremony there
shall be, and giving and taking shall be part of it. The
exigencies of the situation arising out of diverse circumstances
necessitated the introduction of the doctrine of delegation;
and, therefore, the parents, after exercising their volition to
give and take the boy in adoption, may both or either of them
delegate the physical act of handing over the boy or receiving
him, as the case may be, to a third party.”

(emphasis supplied)

15. In view of the aforesaid settled law when applied to the facts and
circumstances and evidence adduced by the parties, it can sufficiently
be concluded that plaintiff has failed to discharge her onus to prove
that defendant no.1 was given in adoption to his uncle and thus the said
issue no.1 is decided against her and in favour of defendant no.1.”

16. A bare perusal of the impugned judgment would show the learned
Trial Court has taken cognizance of the documents filed by appellant
wherein the name of his father is shown as Prem Singh. Admittedly,
when appellant was given to DW3-Smt.Kailasho Devi, she had her elder
son alive and per Section 15 of the Hindu Adoption and SectionMaintenance
Act, 1956 she, even otherwise, could not have adopted the appellant since
had a surviving son. More so, neither datta homam ceremony nor any
other ceremony was ever proved. DW3 Smt.Kailasho Devi had
categorically deposed she had never taken appellant in adoption at any
time. The natural mother – PW1 of the appellant has also admitted there
is no document proving such adoption and all the documents of appellant
show his father to be Late Prem Singh.

RFA No.962/2018 Page 9 of 10

17. Thus, the learned Trial Court has rightly held the adoption of the
appellant to the family of Kailasho Devi / DW3 was never proved.

18. In view of above, the appeal is disposed of with partial
modification of the Judgment and decree dated 24.07.2018 to an extent
the Nilothi Extension Property be also included in the joint properties left
by Late Prem Singh, being available for partition, of course with a rider
the status of the properties would be in the estate of the Prem Singh and
the person claiming through him and such finding shall have no effect on
the third person having any independent right in the properties. Thus,
preliminary decree is also passed in respect of Nilothi Extension Property
with share of each of the parties already determined to an extent of 1/4th
each.

19. Parties to appear on 07.11.2019 before the learned Trial Court/
Successor Court for directions for further proceedings.

20. Copy of this order be sent to the learned Trial Court/Successor
Court for compliance forthwith.

21. The pending application(s), if any, also stands disposed of. No
order as to costs.

YOGESH KHANNA, J.

OCTOBER 16, 2019
M

RFA No.962/2018 Page 10 of 10

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