Ved Pal Singh vs Bhalla Ram and others

Prem Chand Pandit, J.—This is a defendant''s second appeal against the decision of the learned Additional District Judge, Karnal, reversing on appeal the order of the trial Court dismissing the plaintiff''s suit,

ON 8th August, 1960, Niadar is alleged to have adopted one Ved Pal Singh son of Bishan Singh. The deed of adoption was written the next day, i. e. 9th August, 1960, and the same was registered on 16th December, 1960. Thereafter, Niadar, on 27th April, 1964, executed a registered will in favour of Ved Pal Singh and his uncle Kidar Singh bequeathing the property in dispute to them. In July 1964, Bhalla Ram and Hari Singh brought a suit against Niadar. Ved Pal Singh and Kidar Singh challenging the adoption as well as the will on the grounds that they were the collaterals of Niadar and entitled to succeed to the property in dispute, which was ancestral qua them and Niadar. It was said that Niadar could not adopt Ved Pal Singh and he could not also make a will regarding the property in favour of Ved Pal Singh and Kidar Singh, the same being ancestral. It was averred that the parties were governed by custom.

The suit was resisted by the defendants, whose case was that the property was not ancestral and that they were not governed by custom. According to them, both the adoption deed and the will were valid documents.

The trial Court dismissed the suit, holding that the land was ancestral, the will had not been proved, the parties were governed by custom, but the adoption was valid in law.

When the matter went in appeal, the learned Additional District Judge reversed the finding of the trial Court on the question of adoption and came to the conclusion that valid adoption had not been established in the case. No other point was urged in appeal. As a result, the appeal was partly accepted and the plaintiffs suit decreed to the extent that the adoption was held to be invalid and it would not affect the reversionary rights of the plaintiffs after the death of Niadar. Against this decision, Ved Pal Singh alone has come here in second appeal.

It has been contended by the learned counsel for the appellant that the finding of the learned Additional District Judge on the question of adoption was contrary to law. According to him, the plaintiffs, in their plaint, had never challenged the factum of adoption. All that they said was that the adoption was invalid and it was not binding on them, because the land was ancestral and they were governed by custom. It was also argued that the learned Judge was in error in holding that the adoption was invalid, because the consent of Bishan Singh''s wife, i. e. the mother of Ved Pal Singh, had not been taken at the time of adoption. According to the learned counsel, her consent, though not recorded is the adoption deed, had been fully established by the evidence of three witnesses, namely, Kidar Singh, Jhanda Ram and Bishan Singh, D. Ws Nos. 1, 2 and 5.

It is common ground that after 21st December, 1956, all the adoptions would be governed by the Hindu Adoptions and Maintenance Act, 1956, hereinafter called the Act. Therefore, if somebody challenges the adoption, one has to go to the provisions of that Act and find out whether or not the adoption in that particular case offends against any of them The requisites of a valid adoption have been given in section 6 of the Act Section 9 deals with the persons capable of giving in adoption and section 11 talks of some other conditions for a valid adoption. The learned Additional District Judge has come to the conclusion that the provisions of section 9(2) of the Act bad not been complied with in the present case. Section 9(2) reads:

Subject to the provisions of sub-section (3), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.

From the above, it is obvious that when the 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 has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. It is nobody''s case that the mother of Ved Pal Singh answers the later description. Therefore, her consent had to be established, before the adoption in dispute could be held to be valid. It is undisputed that in the adoption deed, Exhibit D. 1, it has not been mentioned that the mother had given her consent to the adoption. This was a circumstance taken into consideration by the lower Appellate Court in holding that in the instant case, actually no consent of the mother had been obtained. The learned Judge has also referred to the fact that Chandgi Ram, who was an attesting witness of the adoption-deed, and Niadar himself were silent regarding the question of the consent of the mother.

We have gone through the evidence and find that there are three witnesses, namely, Kidar Singh, Jhanda Ram and Bishan Singh, D. Ws Nos. 1, 2 and 5, who have stated that the mother and the father of Ved Pal Singh had given their consent to his adoption. We also notice that there was no cross-examination of these witnesses on this point by the opposite party. Ordinarily, one would have come to the conclusion that by the production of this evidence, it has been proved that the mother had given the consent. Bur, unfortunately, for the appellant the lower Appellate Court, while referring to these witnesses, had observed that Kidar Singh was the real uncle of Ved Pal Singh and as such interested in him and Jhanda Ram was inimical towards the plaintiffs, because he admitted that one of the plaintiffs had appeared against him in a case under the Arms Act and he was sentenced to 6 months rigorous imprisonment. As regards the third witness, viz. Bishan Singh, also the learned Judge had remarked that he was the real person behind the scene and wanted that his son be adopted by Niadar, who was a bachelor. This means that all the three witnesses according to the lower Appellate Court, could not be believed on that score. That being so, it has to be held that the consent of the mother had not been established in this case.

Regarding the point about the factum of adoption, it is true that in the plaint, the plaintiffs had not stated that they were disputing this fact. But again section 11 (vi) of the Act says:

In every adoption the following conditions must be complied with:

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(vi) the child to be adopted must be 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:

Provided that the performance of Datta Homam shall not be essential to the validity of an adoption.

According to this provision, 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 his birth to the family of its adoption. It is true that according to the proviso added to this sub-clause, the performance of Datta Homon was not essential to the validity of an adoption, but the giving and taking ceremony has to be established. Consequently, even though the plaintiffs did not in the plaint allege or dispute the factum of adoption, for the validity of the adoption, on which the appellant was relying, he had to prove that the child was actually given and taken in adoption by the parents with intent to transfer the child from the family of its birth to the family of its adoption. In order to establish this fact, in addition to the three witnesses, referred to above, Chandgi Ram and Niadar, D. Ws. Nos. 3 and 4 had been produced in evidence, but their testimony has not been believed by the learned Additional District Judge. It is within his jurisdiction to appreciate the evidence produced in the case and in second appeal, we cannot interfere with his discretion in this matter. Besides, the learned Judge has relied on another circumstance that after four years of the adoption, Niadar had executed a will in favour of Ved Pal Singh and his uncle Kidar Singh. If the adoption was valid, then the adoptee would have succeeded to the entire property and there was no point in Niadar''s executing a will in favour of the adopted son and his uncle Kidar Singh. This point was taken by the learned Judge in showing that there was no intention on the part of Niadar to adopt Ved Pal Singh as his son. In view of the foregoing, no valid ground has been made out for disturbing the finding of fact given by the learned Additional District Judge that Ved Pal Singh had not been validly adopted by Niadar.

The result is that the appeal fails and is dismissed. In the circumstances of this case, however, we will leave the parties to bear their own costs throughout.

B.S. Dhillon, J.

I agree.