Hari Ram vs Surja and Another

A.S. Nehra, J.—This second appeal has been filed by the Plaintiff-appellant against the judgment and decree passed by the Additional District Judge, Narnaul, on 15.6.1978, by which the appeal filed by the Plaintiff-appellant was dismissed and the judgment and decree passed by the trial Court on 22.2.1973 was upheld.

Briefly stated, the case of the Plaintiff-appellant is as follows: The Plaintiff was taken in adoption by Smt. Gorli after due performance of religious ceremonies on 27.7.1969 and a registered adoption-deed was executed by her on 28.7.1969 and, as such, he became the adopted son of Smt. Gorli. It was further pleaded by the Plaintiff that Suraj and Pala, Defendant-respondents Nos. 1 and 2, got two gift-deeds executed in their favour on 22.8.1969 and 26.11.1969 respectively by fraud and misrepresentation and that these gift-deeds were against law and cannot divest him from inheriting the estate of Smt. Gorli.

The suit filed by the Plaintiff-appellant was resisted by Suraj and Pala, the Defendant-respondents Nos. 1 and 2, on the ground that the Plaintiff-appellant was never adopted as a son by Smt. Gorli, because the ceremonies of giving and taking in adoption were not performed. It was further pleaded by the said Defendants- Respondent that Smt. Gorli was the absolute owner of the property and, as such, she was competent to gift away her property in their favour.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is the validly-adopted son of Smt. Gorli?

Whether the Plaintiff is the, owner-in-possession of the land, in suit, as alleged in para No. 2 of the plaint?

Whether the gifts, in question, are illegal and void?

Whether the Plaintiff is entitled to get the maintenance charges from the land, in dispute, and if so, to what effect and to what extent?

Whether the suit is not maintainable, as alleged?

If issue No. 1 is proved, whether there is any other heir of Smt. Gorli and, if so, what is the effect on the suit?

Relief.

The learned Counsel for the Appellant has challenged the finding of the learned lower Court on issue No. 1 and has submitted that the Plaintiff-appellant has been validly adopted by Smt. Gorli. In addition to it, the learned Counsel for the Appellant has placed reliance on the statements of Ram Kauri and Ram Kanwar, real mother and father of the Plaintiff-appellant.

A perusal of Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act) would show that, when a father is giving a person in adoption, then he shall not exercise that power except with the consent of the mother of the child, unless the mother had completely and finally renounced the world or had ceased to be a Hindu or has been declared, by a court of competent jurisdiction, to be of unsound mind. It is undisputed, that, in adoption-deed Exhibit P-1, it has not been mentioned that the mother has given her consent to the adoption. It is also not in dispute that the adoption-deed Exhibit P-1 was not attested by Smt. Ram Kauri, the natural mother of the adopted son. It is not out of place of mention here that the presumption engrafted by Section 16 of the Act cannot be pressed into service because, before that presumption can be made applicable, the adoption-deed must be attested by the parents of the child which, admittedly, has not been done in the present case. PW-2 Seeta, attesting witness of adoption-deed Exhibit P 1, stated that, one day before the execution of the deed, the ceremonies of adoption were performed in the village; that the Plaintiff-appellant was made to sit in the lap of Smt. Gorli; and that, at that time, the mother of the child was also present there. A perusal of the statement of PW-2 would show that he is silent on the point as to weather the consent of Smt. Ram Kauri, natural mother of the Plaintiff-appellant, was obtained. The statement of PW-3, Sheodan is not on a better footing. PW-3 stated that Ram Kanwar, natural father of the Plaintiff-appellant, made his son sit in the lap of Smt. Gorli; that, at the time of the adoption, Ram Kanwar obtained the consent of Smt. Gorli only and none else; and that, at that time, Ram Kauri wife of Ram Kanwar was present there. Ram Kauri, natural mother of the Plaintiff-appellant, has appeared as PW-4. Her statement contradicts the statements of both PW-2 Seeta and PW-2 Sheodan. PW-4 Ram Kauri stated that she and her husband were the consenting parties to the said adoption and that a writing about this adoption was executed at Narnaul. This is not the case of the Plaintiff-appellant either in the pleadings or evidence. PW-5 Ram Kanwar is the father of the Plaintiff-appellant. His statement is silent on the point as to whether the consent of Smt. Ram Kauri was obtained by him or not at the time of giving the Plaintiff-appellant in adoption to Smt. Gorli. As stated above, the statements of PW-2 Seeta and PW-3 Sheodan regarding Smt. Ram Kauri being a consenting party to this adoption are silent and thus the bald statement of Smt. Ram Kauri that she was a consenting party cannot be believed, because she is an interested witness. That being so, it is to be held that the consent of Smt. Ram Kauri, natural mother of the Plaintiff- Appellant, was never obtained and thus there is no due complaince with the provisions of Section 9(2) of the Act.

According to the provisions of Section 11 (vi) of the Act for the adoption to be valid, it has to be proved that the child, who was to be adopted, was actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. As stated above, it has been admitted by PW-2 Seeta and PW-3 Sheodan that the child was given in adoption by Ram Kanwar, natural father of the Plaintiff-appellant, in the lap of Smt. Gorli. In other words, there is nothing on the record to show that the ceremonies of giving and taking were performed by the mother of the Plaintiff-appellant. In addition to it, it has come in evidence that after about one month of the alleged adoption, the land, in dispute, had been gifted away in favour of Suraj and Pala, Defendant-respondents. If the adoption had been valid, then the adoptee would have succeeded to the entire estate and there was no point in executing the gift-deeds in favour of Respondents Nos. 1 and 2 by Smt. Gorli. This point is sufficient to show that there was no intention of Smt. Gorli to adopt the Plaintiff- Appellant as her son. The finding of the trial Court on issue No. 2 has been rightly upheld by the lower appellate Court. A bare reading of Section 13 of the Act would show that the adoptive father or mother retains the power to dispose his or her property by transfer inter vivos or by will. However, this clause clearly shows that the right of disposal of the property by the adoptive father or mother is subject to an agreement, entered into at the time of adoption, in favour of the child to be adopted. Admittedly in this case, there was no such agreement. Therefore, Smt. Gorli was the owner of the suit property. Even the Plaintiff-appellant did not allege in the plaint that any express contract was entered into between him and Smt. Gorli at the time of execution of the alleged adoption-deed.

In view of the above-mentioned discussion, there is not merit in this appeal and the same is dismissed with no order as to costs.