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Usha Malik And Another vs Virender Kumar Malik And Others on 6 October, 2018

RSA No.6608 of 2016 (OM) -1-


RSA No.6608 of 2016 (OM)
Date of decision : 06.10.2018

Smt. Usha Malik and another



Virender Kumar Malik and others



Present: Mr. M.L. Gupta, Advocate for the appellants.



Defendant Nos.3 and 4-appellants are in the Regular Second

Appeal against the concurrent findings of fact arrived at by both the Courts


The limited dispute in the present case is whether Smt. Shanti

Devi, validly adopted a daughter of a son of her husband from previous

marriage in the year 1974. Hukam Chand Malik was initially married with

Smt. Shanti (hereinafter to be referred as “first wife”) and four children

were born namely Virender Kumar, R.P. Malik, Late Sh. M.P. Malik and

Prem Saluja. It is alleged that Smt. Shanti (first wife) died and thereafter

Hukam Chand Malik again married with another woman of the same name

i.e. Shanti Devi (second wife) but no child was born.

Hukam Chand Malik is stated to have died on 12.09.1990. The

plaintiff namely Virender Kumar Malik filed a suit for declaration claiming

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RSA No.6608 of 2016 (OM) -2-

that he is entitled to a share in the property in dispute i.e. Kothi No.147-E,

Model Town, Hisar.

Originally the suit was filed only against impleading Usha

Malik and Davender Malik, widow and son of late Sh. M.P. Malik.

However, later on Manju Bharti daughter of Sh. M.P. Malik filed an

application under Order 1 Rule 10 CPC and became party. Defendant Nos.3

and 4 i.e. widow and son of M.P. Malik has claimed the exclusive rights on

the ground that it was given to late Sh. M.P. Malik by their father.

The main contest between the parties is with respect to the fact

that whether Manju Bharti i.e. defendant No.5 is adopted daughter of

Hukam Chand Malik and Shanti (second wife).

Both the Courts after appreciating the evidence have held that

the case put up by defendant Nos.3 and 4-appellants is not proved on file.

However learned trial Court upheld the adoption of Manju Bharti in the year


Learned First Appellate Court after re-appreciating the

evidence found that the alleged adoption in the year 1974 is in violation of

Section 11(ii) of the Hindu Adoptions and Maintenance Act, 1956

(hereinafter to be referred as “the Act of 1956”) as Hukam Chand Malik was

having a daughter-Prem Saluja and, therefore, he or his wife were not

entitled to adopt. Still further, the First Appellate Court has found that

adoption by Shanti Devi (second wife) during the lifetime of her husband-

Hukam Chand Malik was not permissible in absence of his consent.

The Court has further found that the property is not ancestral

and, therefore, it would devolve upon all class-1 heir equally.

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RSA No.6608 of 2016 (OM) -3-

Learned counsel for the appellants submitted that since

adoption is by a registered document, therefore, there is a presumption of

valid adoption as per Section 16 of the Act of 1956. However, on being

pointed out, learned counsel for the appellants admitted that on the day the

alleged adoption is stated to have taken place, Hukam Chand Malik and

Shanti Devi had a daughter. It may further be noted here that Manju Bharti

is not the appellant before this Court. Learned First Appellate Court has

ordered that all class-1 heirs would be entitled to 1/4th share in the property.

Learned counsel for the appellants further argued that the

plaintiff has only filed a suit for declaration and partition of the property has

not been sought. He submitted that in absence of further relief, the suit was

not maintainable under Section 34 of the Specific Relief Act.

This Court has considered the submissions, however, find no

substance in it. Since the title to the property was in dispute, the plaintiff

have not chosen to file a suit seeking partition of the property. The suit for

partition would be maintainable once dispute with regard to the title of the

property is resolved. Proviso to Section 34 of the Specific Relief Act, 1963

cannot be invoked in such situation.

There is another aspect of the argument of the learned counsel

for the appellants i.e. the relief of possession has not been sought. Every co-

owner is deemed to be in possession of the property and the actual

possession could not be decreed by the Court unless there is partition.

Learned counsel for the appellants further pointed out that

learned trial Court had passed a decree for partition which has not been

modified by the Appellate Court. The argument of the learned counsel for

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RSA No.6608 of 2016 (OM) -4-

the appellants is factually incorrect. The Appellate Court has modified the

decree passed by the trial Court and it has been ordered as under:-

“29. Resultantly appeal is dismissed holding that in the
suit property only plaintiff and defendant No.1 and
defendant No.2 to the extent of 1/4th share each and
defendants No.3, 4 and 5 jointly to the extent of remaining
1/4th share are entitled to inherit the suit property. The
parties are left to bear their own costs. Decree sheet be
prepared accordingly. Trial Court record alongwith copy of
judgment be sent back. After due compliance, appeal file be
consigned to record room.”

The judgment of the trial Court has merged into the judgment

of the First Appellate Court and, therefore, there is no substance in the

argument of the learned counsel for the appellants.

Hence, there is no ground to interfere with the concurrent

findings of fact arrived at by both the Courts below.

Regular Second Appeal is dismissed.

All the pending miscellaneous applications, if any, are disposed

of, in view of the abovesaid judgment.

06.10.2018 (ANIL KSHETARPAL)

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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