SULTAN SINGH Vs. NIHAL SINGH

JUDGEMENT

(1.) THIS is Plaintiff's second appeal whose suit for declaration was decreed by the trial Court, but dismissed in appeal.

(2.) ACCORDING to the Plaintiff, he never adopted Nihal Singh, Defendant as his son. Nor ceremonies of giving and taking in adoption were ever performed in that behalf. He never resided with him as his adopted son, nor he ever rendered any services to him. The Defendant was about 21 years of age and was married. So, he could not be taken in adoption under law. It was also pleaded that the Defendant had got executed the adoption deed dated August 4, 1970, in his favour from him by misrepresentation and that the said document was a mere paper transaction. The present suit was filed on August 30, 1972. It was resisted by Nihal Singh, Defendant, on the ground that the adoption had taken place in the presence of the brotherhood in the village on the day of Basant Panchnama Sambat 2015 BK. All the necessary ceremonies (sic) including the formalities of giving and taking in adoption were gone through. It was also averred that about ten years thereafter the adoption deed was duly executed by the Plaintiff in which he had admitted the adoption having been taken place 15 years back. The main controversy which was the subject -matter of issue No. 1 was, whether the Plaintiff never adopted the Defendant as son and the adoption deed No. 62 dated August 4, 1970, is fictitious and is a paper transaction as alleged in paragraph 4 of the plaint? If so, its effect? Thereunder, the trial Court found that no formalities regarding adoption took place nor the Defendant was adopted by the Plaintiff at the alleged time, nor he lived with him. The adoption deed thus was a mere paper transaction which the Plaintiff executed on August 4, 1970 mentioning therein a concocted version that the formal adoption had already taken place some 10 years back. According to the trial Court, in such an old adoption, there was no necessity for supporting it by a registered deed. So no adoption took place as alleged and the adoption deed was a mere paper transaction. Consequently, the Plaintiff's suit was decreed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that all the conditions for a valid adoption as contemplated under Section 11 of the Hindu Adoptions and Maintenance Act, 1956, were fulfilled and thus there was a valid adoption of the Defendant by the Plaintiff. The learned lower appellate Court in order to come to this conclusion, relied upon the statements of Nand Kishore D.W.8, the natural father of Nihal Singh, defendant , and his mother Rewati who appeared as D.W.9. Nihal Singh, Defendant himself appeared as D.W.5. The categorically stated that the giving and taking ceremony had taken place when the adoption, in question, had taken place about 5 years back. In view of the said finding, the appeal was allowed, the judgment and decree of the trial Court was set aside and the Plaintiff's sut was dismissed. Dissatisfied with the same, he has come up in second appeal to this Court. The learned Counsel for the Appellant contended that the onus is on the person who claims that he was adopted to prove that there was a valid adoption in his favour. According to the learned Counsel, the view taken by the lower appellate Court in this behalf is wrong, illegal and misconceived. There was no evidence on the record to prove that necessary ceremonies as contemplated under Section 11 of the aforesaid Act were gone through. The evidence on record has not been properly appreciated by the learned lower appellate Court. In support of the contention, the learned Counsel relied upon Md. Aftabuddin v. Chandan Bilasini : A. I. R 1977 Ori 69, Krushna v. Pradipta Das : A. I. R 1982 Ori 114, and Gokal Chandra v. Krutibas, A. I. R. 1977 Ori 205.

(3.) AFTER hearing the learned Counsel for the parties and going through the relevant evidence on the record, I dp not find any merit in this appeal