Bajrang Lal vs Nandu Bai

Ms. Bela M. Trivedi, J. - The present appeal has been filed by the appellant-defendant, challenging the judgment and decree dated 3/11/2012 passed by the Additional District Judge, Ramganjmandi, District Kota (hereinafter referred to as ''the Appellate Court'') in Civil Appeal No.04/2009, whereby the Appellate Court has set aside the judgment and decree dated 7/2/2009 passed by the Civil Judge (Junior Division) and Judicial Magistrate, Ranganj Mandi, Kota (hereinafter referred to as ''the Trial Court'') in Civil Suit No.22/2000.

The short facts, giving rise to the present appeal, are that the respondents-plaintiffs had filed the suit before the Trial Court, seeking declaration to the effect that the registered adoption deed dated 22/4/1999 allegedly executed in favour of the appellant-defendant was null and void, and for injunction. It was alleged in the suit interalia that the plaintiff No.1 was an illiterate and widow lady, and the plaintiff No.2 was her daughter. After the death of the husband of the plaintiff No.1, the defendant along with his father had come to the plaintiffs and advised that the names of the plaintiffs were to be recorded in the khatedari, and therefore they had to go to the Tehsil. It was further alleged that the defendant by defrauding the plaintiffs had got the adoption deed registered in his favour from the plaintiff No.1 on 22/4/1999, which fact came to the knowledge of the plaintiffs on 12/5/1999, when they had received the notice from the SDO Court. According to the respondents-plaintiffs, the said adoption deed having been got executed by committing fraud and even otherwise the same was in violation of the provisions contained in the Hindu Adoption and Maintenance Act, 1966 (hereinafter referred to as ''the said Act'') the said deed was illegal, null and void. The said suit was resisted by the appellant-defendant by filing the written statement denying the allegations made against him and further contending interalia that he was adopted by the deceased Madan Lal, the husband of the plaintiff No.1 when the defendant was five years old. According to him, he had also tied the Pagri in presence of all the relatives at the time of death ceremony of the deceased Madan Lal, and hence he was the adopted son of the plaintiff No.1 and the deceased Madan Lal, for which the adoption deed was got registered on 22/4/1999. The Trial Court, after framing the issues and appreciating the evidence on record, dismissed the suit of the respondents-plaintiffs, against which the respondents had preferred the appeal. The Appellate Court vide the impugned judgment and decree, has allowed the appeal and set aside the judgment and decree passed by the Trial Court.

It is sought to be submitted by the learned counsel Mr. Govind Choudhary for the appellant that the Trial Court had rightly not believed the case of the respondents-plaintiffs that the registered sale deed was got executed by committing fraud, and that the Appellate Court without any evidence had reversed the findings recorded by the Trial Court. He further submitted that the appellant-defendant was adopted by the deceased Madan Lal during his lifetime, when the appellant was five years old and since then he was treated as the son of the plaintiff No.1 and the said Madan Lal, and that it was only after the death of Madan Lal, the adoption deed was got registered to avoid any further complications. He also submitted that as per the custom prevailing in their community, there was no need to get the adoption deed registered and it was sufficient that the appellant was treated as the adopted son of the plaintiff No.1.

The learned counsel Mr. N.K. Singhal for the respondents, however, has supported the impugned judgment and decree passed by the Appellate Court and submitted that there being no substantial question of law involved in the present appeal, the same deserves to be dismissed.

Having regard to the submissions made by the learned counsels for the parties and perusing the judgments and decrees passed by the Courts below, it appears that the Trial Court had dismissed the suit of the respondents-plaintiffs on the ground that the respondents had failed to prove the fraud as alleged by them while executing the alleged adoption deed. However, in the opinion of the Court, there cannot be any direct evidence with regard to commission of the fraud. As transpiring from the evidence on record, there was no evidence whatsoever adduced by the appellant-defendant to show that he was adopted by the plaintiff No.1, and her deceased husband Madan Lal, when he was five years old. There was also no evidence on record to suggest that any ceremony was performed while taking the appellant in adoption when he was at the age of five. There is no explanation coming forth from the appellant as to why the adoption deed was not got registered for so many years and was sought to be registered only after the death of Shri Madan Lal. The learned counsel for the appellant had sought to rely upon the ration card to show his name as the family member of the plaintiffs, however the said ration card is of the year 2000 i.e. after the so called registration of the adoption deed. There is no document either of the school where the appellant had studied or of the ration card prior to the year 1999 which would go to show that the appellant was the adopted son of the respondent No.1. The Court therefore finds much substance in the submission of the learned counsel for the respondents that the appellant, taking undue advantage of the illiteracy of the respondent No.1, had got the adoption deed registered in his own favour. It is also pertinent to note that as per Section 10 of the said Act, no person is capable of being taken in adoption, if he has completed the age of 15 years. In absence of any evidence much less cogent documentary evidence to show that the appellant was taken in adoption at the age of five, the recital made in the adoption that he was taken in adoption at the age of five cannot be believed, and the appellant being more than 25 years old at the time of the so called registration of the adoption deed in the year 1999, such adoption would be in violation of Section 10 of the said Act, and therefore null and void.

The learned counsel for the appellant has also failed to point out any question of law much less substantial question of law being involved in the second appeal, and therefore also the second appeal does not deserve any further consideration. The second appeal being devoid of merits is dismissed. By this order, the stay application and other pending application, if any also stand dismissed.