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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