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Judgments of Supreme Court of India and High Courts

Subhash Chander & Anr vs Surjit Kaur & Anr on 16 May, 2019

RSA-3126-2013(OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

RSA-3126-2013(OM)
Date of decision:-16.5.2019

Subhash Chander and another

…Appellants

Versus

Smt.Surjit Kaur and another

…Respondents

CORAM: HON’BLE MR.JUSTICE H.S.MADAAN

Present: Mr.Amit Dhawan, Advocate
for the appellants.

Mr.Sanjay Gupta, Advocate
for respondent No.1.

****

H.S. MADAAN, J.

Briefly stated, facts of the case are that plaintiff –

Smt.Surjit Kaur wife of late Sh.Amru, resident of village Chandeli,

Tehsil Garhshankar, District Hoshiarpur had brought a suit against

defendants i.e. Subhash Chander son of Sh.Rama Kant, his wife

Smt.Raj Rani and their minor son Tilbagh, aged about 10 years,

residents of Mohalla Jalation, Nakodar, District Jalandhar seeking a

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declaration that defendant No.3 – son of defendants No.1 and 2 is not

related to the plaintiff and there exists no relationship of adoptive

mother and adopted son between her and defendant No.3 and further

the alleged adoption deed dated 31.3.1998 relating to the alleged

adoption of defendant No.3 by her is a void, sham, inoperative and

ineffective document and is a result of fraud, undue influence played

upon her by defendants No.1 and 2 etc. and the same is liable to be

set aside. The plaintiff further sought a consequential relief for

permanent injunction restraining the defendants from claiming any

sort of relationship with her personally and with regard to her

properties during her life time or thereafter.

As per the version of the plaintiff, she along with her

husband had been permanent settled in England for a long time; that

whenever they visited India, they used to stay in village Maldi, Tehsil

Nakodar in the house of the brothers of the plaintiff; that the defendant

No.1 is a taxi driver; that in the year 1992, during their visit to India,

plaintiff and her husband hired the taxi of defendant No.1; that on

subsequent visits also they used the services of defendant No.1 taxi driver,

who would pick-up the plaintiff and her husband from the Airport and he

used to be at their service during their stay in India; that subsequently

close relations developed between the two families; that the plaintiff and

her husband were issue-less and they started treating defendant No.1 and

2 as their relations; that the husband of the plaintiff died on 28.2.98 in

England and his body was brought to India for cremation in his native

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village Chandeli on 8.3.98; that the Bhog ceremony of the husband of the

plaintiff was performed at village Chandeli on 16.3.98; that during the

said period, the defendants No.1 and 2 alongwith defendants No.3, stayed

with the plaintiff; that the plaintiff was under great shock and stress on

account of untimely death of her husband; she was indecisive and

confused regarding her future life; that during that period, defendants

No.1 and 2 prevailed upon the plaintiff and they tried to give solace to the

plaintiff by stating that she should not feel alone and she might treat

defendant No.3 as her own son; that the defendants No.1 and 2 prevailed

upon the plaintiff to prepare some documents and they succeeded in

getting a writing from the plaintiff on 31.3.98. According to the plaintiff,

she being an illiterate woman in state of shock did not understand the pros

and cons of the document and had put her signatures under the influence

of defendants Nos.1 and 2; that the defendants No.1 and 2 had obtained

signatures of the plaintiff by keeping her in dark and they claimed that

since certain facilities were available to Non Resident Indians, therefore,

if defendant No.3 was recorded as NRI in the document, then it might be

easy for him to go abroad in the future. According to the plaintiff, there

was never any intention to legally adopt defendant No.3 as her son; that

the defendant No.1 and 2 had made misrepresentations to her and played

fraud with her using undue influence in getting the document executed

from her. According to the plaintiff when she came to India about a month

back prior to filing the present suit, the defendants No.1 and 2 openly

proclaimed to her that defendant No.3 was her adopted son and was her

legal heir and they also disclosed that defendant No.3 has been taken in

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adoption by her vide adoption deed dated 31.3.98. According to the

plaintiff she had not taken defendant No.3 in adoption inasmuch as no

ceremonies of adoption were ever performed and no relationship of

adoptive mother and adopted son came into being between the plaintiff

and defendant No.3. Feeling aggrieved by such conduct of the

defendants, the plaintiff filed the suit in question.

On notice, defendants No.1 and 2 had appeared and filed a

joint written statement inter alia raising preliminary objections to the

effect that the plaintiff had no locus standi and cause of action to file the

present suit; that the suit was not within time; that the defendant No.3 is a

minor and his relations with defendants No.l and 2, who were his natural

parents, stood severed after adoption by the plaintiff, therefore, the

plaintiff is guardian of the defendant No.3. On merits, the answering

defendants admitted that defendant No.3 was residing with them, though

stating that all the relations of defendant No.3 with them stood severed

from the date of adoption; that the plaintiff is therefore, the natural

guardian of defendant No.3 being his adoptive mother. The answering

defendants claimed that defendant No.3 is residing with them, as plaintiff

is residing abroad. The answering defendants admitted that plaintiff and

her husband used to stay at village Maldi near Nakodar and defendant No.

1, who was working as a taxi driver, came in contact with the plaintiff and

her husband. According to them it was in the year 1988 and thereafter,

they had been in regular contact after relations between the plaintiff and

her brothers became strained; that the plaintiff started treating defendant

No.1 as his brother; that there developed a relationship of love and faith

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between them; that defendant No.1 even pursued the legal case on behalf

of the plaintiff and her husband in District Hoshiarpur; that the plaintiff

and her husband were issue-less, whereas the answering defendants had

already had two sons and two daughters; that the plaintiff and her husband

requested the answering defendants to give birth to a child for them on the

ground that they were willing to adopt the child; the answering defendants

claimed that they already had children to their satisfaction, but they

succumbed to the requests of the plaintiff and her husband and on

29.12.1994, defendant No.2 gave birth to defendant No.3; that the

plaintiff and her husband were jubilant on getting news of birth of

defendant No.3 and they visited the house of defendants just 22 days after

the birth of defendant No.3 and they showered great love and affection

upon the child and treated him as their own son; that the plaintiff and her

husband made it clear that they would adopt the child legally in the future

after the plaintiff would get the citizenship of U.K.; that the plaintiff and

her husband, thereafter, continued to visit India regularly for seeing the

child; that unfortunately the husband of the plaintiff had died an 28.2.98

before defendant No.3 could be adopted; that after the death of her

husband, plaintiff told the answering defendants that her late husband had

expressed his desire for the adoption of defendant No.3 stating that in case

of his death, the plaintiff should adopt the defendant No.3 after his death.

The answering defendants claimed that the funeral pyre of husband of

plaintiff was lit by defendant No.3, who also performed his last rites; that

the plaintiff treated the defendant No.3 as her own son. According to the

answering defendants, after two days of the Bhog ceremony of the

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husband of the plaintiff i.e. on 18.3.98, a formal adoption ceremony was

held in the Gurudwara Sahib at village Chandeli, where defendant No.3

was adopted by the plaintiff in presence of holy Shri Guru Granth Sahib;

that the answering defendants formally gave defendant No.3 in adoption

to the plaintiff. According to the defendants, the plaintiff was very

sorrowful and sad due to death of her husband but she was not under

mental shock and stress and she at the time of adoption ceremonies had

stated that she was fulfilling last wish of her late husband; subsequently

on 31.3.98 a registered adoption deed was executed between the plaintiff

and answering defendants regarding adoption of defendant No.3; that the

adoption deed was registered in the office of Sub Registrar. According to

the defendants, the plaintiff and the entire world, after the execution of the

adoption deed, started treating defendant No.3 as son of the plaintiff; that

the plaintiff thereafter departed for England; that the defendant No.3 was

left in the care and custody of his natural parents i.e. answering

defendants; that the plaintiff took the photographs and other papers of the

minor for getting his passport issued; that later on, the plaintiff informed

the answering defendants that passport of the child was to be prepared in

India; that the answering defendants claimed that plaintiff continued to

visit their house for seeing the child at regular intervals and she also paid

sufficient amount to the answering defendants for bearing the expenses for

bringing up of the child; that on 16.4.98 the plaintiff herself got defendant

No.3 admitted in Sant Kirpal Singh Sewa Panthi School at village Neelon,

Ludhiana; that the plaintiff signed the admission application as mother of

minor defendant No.3 and she paid the necessary fee and charges for the

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education, boarding and lodging of defendant No.3; that she continued to

visit India thereafter, for seeing the child; that the defendant No.3 stayed

in the hostel for two years and in the 3rd year, the plaintiff directed the

answering defendants to withdraw the defendants No.3 from the said

school at village Neelon, District Ludhiana and to keep him with them at

Nakodar and since then, the defendant No.3 was staying with defendants

No.1 and 2 at Nakodar; that the plaintiff continued to visit her adopted

child and she also continued sending money for meeting expenses of

bringing up of the child and his education expenses. According to the

answering defendants, the plaintiff and the entire world treated defendant

No.3 as adopted child of the plaintiff; they denied that no ceremonies of

adoption were performed as alleged by the plaintiff; they also denied that

any fraud, misrepresentation or undue influence was practised upon the

plaintiff for getting adoption deed dated 31.3.98 executed. The defendants

claimed that the plaintiff had signed the adoption deed and the

endorsement of the Sub Registrar, after understanding the contents of the

document. The answering defendants, therefore, claimed that plaintiff was

well aware of the contents of the documents and she knowingly executed

the same.

The trial Court had appointed Sh.P.P. Singh, Advocate as

Court Guardian for minor defendant No.3, who appeared and filed

separate written on behalf of minor defendant contesting the suit and

coming up with a version almost identical to the one put forward by

defendants No.1 and 2 in their written statement.

Refuting the remaining allegations, all the defendants prayed

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for dismissal of the suit.

The plaintiff had filed replication controverting the

allegations in the written statements whereas reiterating the

averments in the plaint.

On the pleadings of the parties, following issues were

framed:

1. Whether adoption deed dated 31.3.98 is illegal, null and void
inoperative and ineffective document? OPP

2. Whether plaintiff is entitled to relief of declaration as prayed for?

3. Whether plaintiff is entitled to relief of permanent injunction as
prayed for? OPP

4. Whether plaintiff has no locus standi and cause of action to file the
present suit? OPD

5. Whether suit is not maintainable? OPD

6. Whether suit is time barred? OPD

7. Whether plaintiff is estopped from filing the present suit by
his own act and conduct? OPD

8. Whether defendant No.3 has not been properly sued, if so, its
effect? OPD

9. Whether plaint is not drafted as per provisions of Order 7
CPC? OPD

10.Relief

In order to prove her case, the plaintiff Smt.Surjeet Kaur

had got recorded her statement besides tendering certain documents.

On the other hand, the defendant No.1 Subhash Chander

got his statement as DW3 and the defendants further examined

Smt.Narinder Kaur as DW1, Sh.Joga Singh as DW2, Sh.Chaman Lal

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Chauhan as DW4, Sh.Paramjit Singh as DW5 and Sh.Mewa Singh as

DW6.

After hearing the learned counsel for the parties, the trial

Court decided issues No.1, 2, 3 in favour of the plaintiff and against

the defendants, issues No.4 to 9 against the defendants and in favour

of the plaintiff. Resultantly, the trial Court vide judgment and decree

dated 13.4.2010 decreed the suit with costs holding that defendant

No.3 has no relationship of adopted son with the plaintiff and

adoption deed dated 31.3.1998 was also clearly the result of undue

influence played upon the plaintiff by defendants No.1 and 2; it was

therefore set aside being void, sham and inoperative document

holding that the adoption deed dated 31.3.1998 therefore did not

confer any status of adopted son of the plaintiff on defendant No.3.

By way of granting relief of permanent injunction, the defendants

were restrained from claiming any sort of relationship with the

plaintiff or her properties during here life time or thereafter.

Feeling aggrieved by the said judgment and decree, the

defendants No.1 and 2 had filed an appeal before District Judge,

Hoshiarpur, which was assigned to Additional District Judge (Ad

hoc), Fast Track Court, Hoshiarpur, who vide judgment and decree

dated 18.4.2013 dismissed the appeal and upheld the impugned

judgment and decree passed by the trial Court.

Still feeling dissatisfied with the judgments and decrees

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passed by the Courts below, the defendants Nos.1 and 2 have filed

the present regular second appeal before this Court, notice of which

was issued and the respondent No.1 – plaintiff appeared through

counsel.

I have heard learned counsel for the parties besides going

through the records and I do not find any merit in the appeal.

The trial Court in view of the factual and legal position

has come to the conclusion that there was no relationship between

the plaintiff and her husband on one side with defendant No.1, after

sudden death of husband of plaintiff taking advantage of vulnerable

mental condition of the plaintiff, defendants No.1 and 2 had taken

her signatures on adoption deed dated 31.3.1998; however, the

plaintiff did not have any genuine intention to adopt defendant No.3,

otherwise she would not have left him in India and would have rather

taken him along with her to U.K.; that as a matter of fact the plaintiff

and her husband never made any effort to adopt the child from the

time of his birth on 29.12.1994 till death of husband of the plaintiff

on 28.2.1998 and rather defendants No.1 and 2 continued to treat

defendant No.3 as their son; that no ceremonies of adoption are

proved to have been performed; that the child was never shifted to

the care and custody of the plaintiff, therefore, it is not apparent that

any adoption was intended to be effected and adoption deed dated

31.3.1998 did not appear to witness the creation of any legal bond

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between the plaintiff and defendant No.3 of adopted son and

adoptive mother; rather it was executed to facilitate the settlement of

defendant No.3 in U.K. and further the defendants had failed to

establish that defendant No.3 was duly adopted by the plaintiff. The

Trial Court has found that the suit was within limitation, if limitation

is reckoned from the date defendants No.1 and 2 started asserting the

relationship between the plaintiff and defendant No.3 and not from

the adoption deed dated 31.3.1998, as such suit was within time.

Learned Additional District Judge (Ad hoc), Fast Track

Court, Hoshiarpur has agreed with the observations made by the trial

Court. He has observed that defendants had not examined any

attesting witness of the adoption deed to prove that it was executed

validly and without any pressure upon the plaintiff and depositions

made by DW1 to DW3 are contradictory to each, rebutting the

presumption created under Section 16 of Hindu Adoption and

SectionMaintenance Act. It was further observed that if a document is not

validly execution, no presumption can be raised for the same.

The concurrent findings recorded by both the Courts

below do not suffer from any irregularity or illegality. The findings

are affirmed. No fault is found with the judgments and decrees

passed by the Courts below. Those are upheld.

No substantial question of law arises in this appeal.

It being so and in view of the concurrent findings

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returned by the Courts below with which I do not see any reason to

disagree, I conclude that the appeal is without merit and is dismissed

accordingly.

16.5.2019 (H.S.MADAAN)
Brij JUDGE

Whether reasoned/speaking: Yes/No

Whether reportable : Yes/No

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