Charan Singh and another vs Major Singh and others

D.S. Tewatia, J.—This is Plaintiffs, appeal arising out of a suit for declaration that adoption-deed Exhibit D 1, dated February 2, 1960 whereby Major Singh Defendant was adopted as son by Pakhar Singh was invalid and ineffective as against their interested in the property left behind by Pakhar Singh comprised of agricultural land and houses,

Findings of the Courts below that Charan Singh and Darshan Singh Plaintiff Appellants were born to Smt. Dialo from the loirs of Pakhar Singh and that Pakhar Singh had, in fact, adopted Major Singh Defendant by executing a registered adoption-deed Exhibit D. 1 on February 2, 1960 are not disputed before me The validity of the adoption in question is brought under challenge only on account of interdiction placed by Section 11 of the Hindu Adoptions and Maintenance Act, 1956, hereinafter referred to as the Act, on the rights of a person for taking a son in adoption if the person concerned at the time of such an adoption had Hindu son living.

The case set up by the Defendant is that the Plaintiffs were not the legitimate sons of Pakhar Singh and the provisions of section 11 of x he Act are not attracted to the present case.

The only question, therefore, that arises for consideration is as to whether Charan Singh and Darshan Singh were the legitimate sons of Pakhar Singh.

It has not been disputed, nor is there any scope for dispute that the expression ''son'' used in Section 11 of the Act would refer to only a legitimate son. Evidence has been led on behalf of the Defendants that Smt. Dialo mother of Charan Singh and Darshan Singh Plaintiff, was legally if capable of marrying Pakhar Singh, for on the date she is alleged to have entered in Karewa marriage with Pakhar Singh and started living with him as his wife, her previous husband, a Jhivar was still alive and it is said that he was alive even when the present suit was filed. The lower appellate Court on a consideration of the evidence adduced on the record found as a fact that Smt. Dialo, mother of the Plaintiffs, was married to one Baru, a Jhiver by caste ; and that man was still alive when she contracted the alleged Karewa marriage with Pakhar Singh.

Applying to the facts, so found the ratio of the Lahore High Court decision in AIR 1934 800 (Lahore) in which it was held that Jhivers of Punjab were governed by Hindu Law, the learned lower appellate Court Court held that during the life time of Baru, Smt. Dialo was legally incapable of entering into a legitimate marriage bond with any other male and hence in the eye of law, there existed no valid marriage between Smt. Dialo and Pakhar Singh, with the result that any child born to her from the loins of Pakhar Singh would be an illegitimate one. Having so held, lower appellate Court came to the conclusion that the provisions of Section 11 of the Act were not attracted and, therefore, the adoption-deed, the validity of which was otherwise not challenged on any other ground, was legal and valid.

Mr. Y. P. Gandhi, Learned Counsel for the Appellants, has advanced two contentions (I) that Smt Dialo if abandoned by her previous husband could, as an abandoned wife, enter into a second wedlock with Pakhar Singh and sought to sustain this submission from the ratio of the Punjab Chief Court decision in Lachu v. Dal Singh 33 PR 1891 and (2) that by virtue of the provisions of Section 16 of the Hindu Marriage Act. 1955 (25 of 1955), the Plaintiffs were to be considered legitimate sons of Pakhar Singh.

As to his first submission ,it may be observed that even if the ratio of Lachu''s case is applicable, then in this case evidence is lacking to show that Smt. Dialo had been abandoned by her husband. On the contrary, so far as the Plaintiffs are concerned, evidence is adduced by them that she never married anybody prior to Pakha Singh, so the question of their leading evidence of desertion on the part of Baru or Smt. Dialo does not arise. However, the Defendants have led evidence to the effect that it was she who had abandoned and deserted Baru, although Baru had made efforts to bring her back to his house.

Mr Gandhi, Learned Counsel for the Appellants, nevertheless, urged that from the fact that Smt. Dialo lived for so many years with Pakhar Singh and thereafter with one Prem Singh, it should be inferred that she did so an on account of her having been deserted, more particularly when there is no evidence that after the inital attempt to bring her back, Baru even thereafter continued to try to bring her back.

Even if that may be so, it would not be a case of a husband deserting his wife. It may. at best, tantamount to his abandoning all hopes of her coming back to him. J, therefore, hold that it is not proved on the record that Smt Dialo had been abandoned by her husband. Hence the ratio of Lachu''s case (supra) is of no help to the Plaintiffs.

As to the second contention, here again the position is no better, so far as the case of the Plaintiffs, is concerned. Section 16 of the Hindu Marriage Act is in the following terms:

Where a decree of nullity is granted in respect of any marriage u/s 1 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child not withstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null viod or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act. such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

A perusal of the provisions of Section 16 of the Hindu Marriage Act would show that only such an issue shall be deemed to be a legitimate issue in the event of annullment of the marriage under Sections 11 or 12 of the Hindu Marriage Act if he would have been considered legitimate issue in the event of the dissolution of the marriage u/s 13 of the Hindu Marriage Act. In the present case, even if it is held, for the sake of argument, that Smt. Dialo and Pakhar Singh were alive on the enforcement of this Act and on any of the grounds mentioned in Section 13 of the Hindu Marriage Act, their marriage had been dissolved, the question would be whether the Plaintiffs, would have been then considered as their legitimate children. Answer to this question again would have depended on the fact as to whether there was a valid marriage between Smt. Dialo and Pakhar Singh. On facts, as found by the Courts below, I entertain no doubt that they would have been treated as illegitimate children of Pakhar Singh. That being the position, the provisions of Section 16 of the Hindu Marriage Act would not make any dulerence(sic) of their position.

In view of the above, I find no merit in this appeal and dismiss the same, but leave the parties to bear their own costs.