Lokesh Gupta & Ors vs Sukesh Chand Gupta

VALMIKI J. MEHTA, J (ORAL)

CM No. 33502/2018 (Exemption) in RFA No.677/2018

Exemption allowed subject to just exceptions.

CM stands disposed of.

RFA No.677/2018 & RFA No.678/2018

These two Regular First Appeals under Section 96 of the Code of Civil Procedure, 1908 (CPC) are filed by the defendants in the suit impugning the

Judgment of the Trial Court dated 22.3.2018 by which the trial court has decreed the suit filed by the respondent/plaintiff of possession and mesne

profits with respect to two premises, the first being of a Quarter No. 71 of property bearing Block No.1, Bengalimal Market, New Delhi and second

being a Shop No.46, Block No.1, Bengalimal Market, New Delhi. Essentially what is decided by the impugned judgment is that the tenant Sh. Guljari

Lal died leaving behind any legal heirs and that though the appellant no.3/defendant no.4/Sh. Amit Gupta claimed to be the adopted son of late Sh.

Guljari Lal, however, Sh. Amit Gupta has not been found to be the adopted son of late Sh. Guljari Lal and hence Sh. Amit Gupta will not inherit the

tenancy rights of Sh. Guljari Lal/deceased tenant.

The facts of the case are that the respondent/plaintiff has filed the subject suits pleading ownership of the two premises as the same devolved upon

him from his grand-mother Smt. Vidyawati. Between the legal heirs of Smt. Vidyawati, and which included the respondent/plaintiff, a partition took

place vide registered Partition Deed dated 9.6.2000 and the suit properties consequently fell to the ownership of the respondent/plaintiff. The subject

suit was filed by the respondent/plaintiff by pleading that since the tenant Sh. Guljari Lal had died without leaving behind any legal heirs, the

appellants/defendants are illegal occupants of the suit property and the suits for possession and mesne profits be decreed.

Written statement was filed by the appellants/defendants. One written statement was filed by the appellants no. 1 and 2 who were the defendants

no. 2 and 3. One written statement was filed by the appellant no.3/defendant no.4/Sh. Amit Gupta. In essence, the defence of the

appellants/defendants was that the tenant Sh. Guljari Lal before his death, on 7.6.1998, adopted appellant no.3/defendant no.4/Sh. Amit Gupta, and

therefore, appellant no.3/defendant no.4/Sh. Amit Gupta as the adopted son of late tenant Sh. Guljari Lal inherited the tenancy rights in the suit

properties. The suit properties admittedly are properties having the protection of the Delhi Rent Control Act, 1958.

Trial court has, by the impugned judgment, rejected the case set up by the appellants/defendants that the appellant no.3/defendant no.4/Sh. Amit

Gupta was the adopted son of late Sh. Guljari Lal. Trial court for rejecting the adoption of Sh. Amit Gupta has relied upon certain inconsistencies

between the original Adoption Deed which was filed and proved as Ex.DW5/1 with the certified copies filed by the appellants/defendants on the one

hand being Ex.DW1/1 and the respondent/plaintiff as Ex.DW5/P1. Trial court has further referred to the fact that the case put forth for adoption of

the appellant no.3/defendant no.4/Sh. Amit Gupta by late tenant Sh. Guljari Lal does not stand to any logic or truthfulness because appellant

no.3/defendant no.4/Sh. Amit Gupta was claimed to be adopted by Sh. Guljari Lal when Sh. Guljari Lal was 90 years of age, and therefore how could

the appellant no.3/defendant no.4/Sh. Amit Gupta who was just 10 years of age at the time of adoption, take care of a tenant Sh. Guljari Lal who was

90 years old, the purpose of adoption being stated that the adopted son appellant no.3/defendant no.4/Sh. Amit Gupta will take care of Sh. Guljari Lal.

Trial court has also referred to the fact that the case put forth for adoption could not be believable because no record is filed of the educational

institutions in which the appellant no.3/defendant no.4/Sh. Amit Gupta studied and which shows that parentage/father of appellant no.3/defendant

no.4/Sh. Amit Gupta is Sh. Guljari Lal and not the natural father/Sh. Davendra Gupta. Trial court has also arrived at a finding of fact that not only no

educational record was filed of the appellant no.3/defendant no.4/Sh. Amit Gupta but also that no other public record; whether of ration card or any

other public record; was filed which would show that Sh. Amit Gupta would be the adopted son of late Sh. Guljari Lal. I may note that the public

record would include a passport, ration card and so on and none of these documents have been filed by the appellants/defendants to show that the

appellant no.3/defendant no.4/Sh. Amit Gupta was the adopted son of Sh. Guljari Lal.

Learned counsel for the appellants/defendants has argued that the trial court has wrongly rejected the case of adoption of the appellant

no.3/defendant no.4/Sh. Amit Gupta by Sh. Guljari Lal because the discrepancies which are mentioned in the certified copies of the Adoption Deed as

compared to the original Adoption Deed have no significance or relevance because once the original Adoption Deed is filed and proved on record as

Ex.DW5/1 and a witness being the clerk from the Sub-Registrar’s office deposed with respect to the Adoption Deed being duly registered before

Sub-Registrar is proved, then the adoption should be held to have been proved and more so in view of the fact that the appellants/defendants had

proved the factum of the ceremony of adoption in terms of photographs Ex.DW1/2 to Ex.DW1/25.

This Court cannot agree with the arguments urged on behalf of the appellants/defendants inasmuch as no doubt there is a factum of existence of a

registered Adoption Deed with the photographs of adoption, however, the parties who went through the process of adoption would/should have

intended to see that the adoption becomes a reality. In other words, a transaction or situation or an occasion can be a nominal/sham/paper transaction,

without the factum/incident/transaction having been acted upon. In the present case, it is seen that the adoption took place when Sh. Guljari Lal was

around 90 years of age, and therefore, the appellant no.3/defendant no.4/Sh. Amit Gupta being only 10 years of age would not have taken care of Sh.

Guljari Lal and which is stated to be the purpose of adoption. Also, the best proof of adoption having been taken place is to show that adoption is acted

upon. Obviously, if the adoption was intended to be acted upon, the adoption would have been shown in the entire educational records of the appellant

no.3/defendant no.4/Sh. Amit Gupta or in numerous other public records such as passport, ration card, voter identity card or income tax records and so

on. Admittedly, none of this public record has been filed by the appellants/defendants to show that actually the adoption was in fact acted upon. In my

opinion, though the trial court has not dealt with this aspect, this Court is entitled to do the same in view of the Order XLI Rule 24 CPC and which

permits this Court to give additional reasoning to sustain the judgment of the trial court. In effect, though the trial court has not used the word

nominal/sham/paper adoption, though in substance the trial court has held it to be so, by not only disbelieving the Adoption Deed but more importantly

observing that if the adoption was real then there was no reason as to why the educational record or the public record has not been filed to show the

appellant no.3/defendant no.4/Sh. Amit Gupta to be the son of Sh. Guljari Lal.

Bengalimal Market in Delhi is in the hub of Central Delhi. Properties herein are most valuable running into dozens of crores of rupees. Not only the

properties in the Bengalimal Market are extremely valuable, and which is just about one kilometer away from this Court as also the Supreme Court,

even the premiums which are charged for creation of tenancy under the Delhi Rent Control Act, run into crores and crores of rupees. Obviously, the

claim which was floated by the appellants/defendants was essentially to capture the tenancy rights which have protection under the Delhi Rent

Control Act, and to the disadvantage of the original owner of the suit property being the respondent/plaintiff, and which owner has been rightly entitled

by the trial court to the decree of possession and mesne profits of the suit properties.

In view of the above discussion, there is no merit in the appeals. These appeals being a gross abuse of the process of law are dismissed with costs

of Rs.5 lacs each which will be deposited by the appellants to the Chief Minister Distress Relief Fund of State of Kerala within a period of two weeks

from today and proof of deposit of costs be filed in this Court after two weeks, failing which Registry will list the matter in Court for directions.