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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3895-3896 OF 2013
(Arising out of S.L.P. (C) Nos. 33612-33613 of 2009)
Harnek Singh ……Appellant(s)
Vs.
Pritam Singh & Ors. ….Respondent(s)
J U D G M E N T
M.Y.EQBAL,J.
Leave granted.
2. The plaintiff-appellant assailed the common judgment and
order dated 11.05.2009 passed in RSA Nos.122/2008 and 123/2008
whereby the learned Single Judge dismissed both the appeals and
affirmed the order passed by the lower appellate court.
3. The facts leading to these appeals may be summarized
thus:-
4. The plaintiff (appellant herein) filed a suit being Title Suit
No. 80/1985 on 23.04.1985 for declaration that the gift deed dated
28.02.1985 registered on 22.03.1985 alleged to have been executed
by defendant No.1 Sarup Singh (since deceased) in favour of
defendant Nos. 2 and 3, Pritam Singh and Surjan Singh, in respect of
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the suit land is illegal, void, ineffective and is to be set aside. A
decree for permanent injunction was also sought for restraining
defendant No.1 Sarup Singh (now deceased) from alienating the land
fully described in the schedule of the plaint. The plaintiff filed the said
suit with the averments that he is the adopted son of Sarup Singh
alias Sarupa (now deceased) (defendant No.1 in the original suit).
The plaintiff’s case is that Sarup Singh and his wife Prem Kaur (now
both deceased) had no child and were issueless. They approached
the natural father of the plaintiff Kesar Singh and expressed their
desire to adopt the plaintiff as their son to which Kesar Singh agreed.
Consequently, the plaintiff was adopted as their own son by Sarup
Singh and his wife on 16.12.1982 at Village Khatoli, District Ambala.
There was actual giving and taking i.e. the plaintiff was allegedly put in
the lap of Sarup Singh and Prem Kaur by the natural father Kesar
Singh and declared that from 16.12.1982 the plaintiff became their
son. It was alleged that all necessary ceremonies including religious
and customary formalities were observed and sweets were distributed
and since then the plaintiff became the son of deceased defendant
No.1 Sarup Singh and his wife. Plaintiff’s further case is that since the
adoptive father and mother had become old, the plaintiff started
managing the entire property of the family including the land, houses
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etc., and has been cultivating the suit land. The plaintiff’s further case
is that for a few days when he went out of the village, defendant Nos.2
and 3 who are very strong headed and clever fellows removed the
deceased Sarup Singh from his house and by misrepresentation and
putting pressure to him and by giving threat and undue coercion got
the alleged gift deed executed in their favour taking advantage of the
unsound and mental weakness of the deceased Sarup Singh. The
plaintiff, therefore, filed the suit being No. 80/1985 against Sarup
Singh (defendant No. 1) and defendant Nos. 2 and 3 challenging the
said alleged gift deed. The plaintiff also alleged that defendant Nos. 2
and 3 have obtained a decree against defendant No.1 regarding the
suit property. Plaintiff’s further case is that the plaintiff along with
defendant No.1 constituted a Joint Hindu family and was having title in
the ancestral property.
5. On being summoned, defendant Nos. 2 and 3 filed their
joint written statement taking preliminary objection that the plaintiff is
not the adopted son of Sarup Singh as Sarup Singh never adopted the
plaintiff and, therefore, the plaintiff has no locus standi to file the suit.
Defendants also denied that the plaintiff is in possession of the
disputed land. The entire story of giving and taking and celebration
was denied. It was also denied that any religious and customary
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formalities were ever observed in respect of the alleged adoption.
Defendants’ further case is that defendant No.1 Sarup Singh executed
a gift deed in their favour out of love and affection and in view of the
services rendered by them. It was stated that defendant No.1 was the
absolute owner of the suit property and was fully competent to alienate
the same in favour of defendants.
6. It is pertinent to mention here that earlier defendant Nos. 2
and 3 had also filed a suit being Suit No. 784 of 1984 titled as Hari
Singh vs. Sarupa (defendant No. 1) for declaration that they are the
owners in possession of the suit land on the basis of Gift Deed dated
22.03.1985 which was decreed by the Civil Judge vide his judgment
and decree dated 15.04.1985. The plaintiff who was having no
knowledge of the decree dated 15.04.1985 could not challenge the
same in his aforementioned Suit No. 80 of 1985 filed on 23.04.1985
and had to file a second suit being Suit No. 46 of 1987 challenging the
decree dated 15.04.1985 alleging therein that the decree is a collusive
one and has been obtained by committing fraud upon the Court and
thus the same is invalid and ineffective. The pleadings of the parties
in Suit No. 46 of 1987 are alleged to be similar to the pleadings in Suit
No. 80 of 1985.
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7. Both the suits were taken up together by the trial court and
the following consolidated issues were framed:-
1. Whether the plaintiff is adopted son of Sarup Singh as
alleged? OPP
2. Whether the judgment and decree dated 15.4.85 is
liable to be set aside as alleged? OPP
3. If issue No.1 is proved, whether the land was ancestral
in the hand of Sarupa Singh, if so to what effect? OPP
4. Whether the plaintiff was in possession of the suit land
as alleged? OPP
5. Whether the plaintiff is entitled for possession of suit
land as alleged? OPP
6. Whether if the adoption deed if any is a result of forgery
as alleged? OPD
7. Whether gift deed dated 8.2.1985 is liable to be set
aside as alleged? OPP
8. Whether the present suit is not maintainable in the
present form? OPD
9. Whether the suit is bad for non joinder of necessary
parties? OPD
10. Whether the defendants are entitled for special costs?
OPD
11. Whether the plaintiff has no cause of action to file the
present suit? OPD
8. The trial court in its judgment dated 31.08.2007 after
analyzing the evidence and considering the facts of the case recorded
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its findings and decided Issue Nos.1 and 6 in favour of the plaintiff
holding that the plaintiff is the legally adopted son of deceased
defendant No.1 Sarup Singh. However, the trial court decided Issue
Nos. 2 and 7 against the plaintiff and in favour of defendantrespondents. So far Issue No.3 is concerned, the trial court held that
the suit property was not the ancestral property; hence, Sarup Singh
was entitled to alienate the property. Consequently, the suit filed by
the plaintiff was dismissed.
9. Aggrieved by the judgment passed by the trial court, the
plaintiff-appellant filed appeals before the District Judge being Civil
Appeal Nos. 84 and 85 of 2007. The first appellate court while
narrating the facts in its judgment dated 13.12.2007, first of all noticed
that the suit was filed by the plaintiff during the lifetime of his adoptive
father Sarup Singh making him defendant No.1. The said Sarup Singh
contested the suit by filing written statement denying the averments
made in the plaint that he ever adopted the plaintiff-appellant as his
son. The said Sarup Singh also denied the allegations that the gift
deed was executed by him in favour of the defendant-respondents
under any pressure or coercion. After analysing the pleadings and the
evidence, the appellate court observed that although the plaintiff came
up with a definite plea that he was being treated as adopted son of
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Sarup Singh since 1970 but the alleged actual giving and taking
ceremony took place in the year 1982; hence the plaintiff-appellant
was not sure as to whether the adoption had taken place in the year
1970 or in the year 1982. Strangely enough, no date or month has
been provided in the pleadings of the year 1970 when the alleged
adoption might have taken place. Admittedly, when the appellant was
taken in adoption, he was about 23 years old in the year 1982 and was
a married man having children. The appellate court held that since the
appellant was more than 15 years of age in 1982, it was incumbent
upon him to prove that there was valid customs amongst Jats under
which he could have been given in adoption. The appellate court after
noticing the fact that custom prevalent amongst the community has
not been pleaded or proved, relied upon the decision of Lahore High
Court in Kishan Singh and Others vs. Shanti and Others, AIR
1938 Lahore 299 for the proposition that if any party wants the Court
to rely on a custom, onus is on that party to plead the custom in the
precise terms and lead evidence to establish the said custom. The
first appellate court while dismissing the appeals discussed the other
decisions on the point of custom and finally recorded the following
findings:-
“ I have considered the respectful submissions of the
learned counsel for the appellant at length but before the
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appellant could succeed in his claim it was incumbent
upon the appellant to at least plead that his adoption is in
consonance with the custom prevalent amongst his
community. This fact has no where been pleaded in the
plaint. This court is further of the view that it should have
been established beyond doubt that there existed such
custom in the area of district Ambala that jats can adopt a
child who may be more than fifteen years of age and may
be married. The cited ruling of Madhya Pradesh High
Court and of our own Hon’ble High Court pertains to the
area of M.P. and district Rohtak are of no avail to the case
of the appellant as custom differs from place to place and
from tribe to tribe. It cannot be laid down as a general rule
that simply because there was a custom in Rohtak
amongst Jat to adopt even a married person, the same will
hold good in District Ambala also. There was no dispute
about this proposition of law that once a custom is
recognized through judicial pronouncements, then it need
not be proved in subsequent cases but at the same time
this court is constrained to lay down that no judgment has
been produced by the learned counsel for the appellant
with respect to jats living in the area of District Ambala.
The custom amongst jats who are habitants of district
Ambala may be different then custom of jats who are
residents of district Rohtak. It reminds this court that our
own Hon’ble High Court has laid down in one of the
decided case reported in Hari Singh Vs. Bidhi Chand as
reported in 1997 MLJ 224 that jats of tehsil Naraingarh
district Ambala lack the capacity to adopt. From all this it
can be safely inferred that the custom differs from place to
place and from tribe to tribe and as such evidence should
have been led beyond shadow of doubt that there existed
custom amongst jats of Ambala under which a married
man and man beyond age of 15 years could have been
given in adoption. Strangely enough, the custom has not
been pleaded in the present case and thus findings cannot
be returned on issues no.1 and 6 in favour of the
appellant. Not only this, the suit was filed during the life
time of Sarup Singh, alleged adopted father of the
appellant and in pursuance to the notice given by the court
Sarup Singh duly put in appearance before the court and
filed a written statement wherein he denied the very
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factum of adoption. Once the adoptive father himself is
alleging that he never took the appellant in adoption, this
court cannot substitute its own decision that the appellant
was taken in adoption by Sarup singh. Prima facie the
alleged adoption is violative of the provision of section 10
of the Hindu Adoption and Maintenance Act 1956 and
accordingly the same cannot be held to be a valid
adoption. The findings of the learned trial court on issues
no.1 and 6 thus cannot be sustained and are accordingly
reversed.”
10. The plaintiff-appellant assailed the judgment of the first
appellate court by filing second appeals in the High Court being R.S.A.
Nos. 122 and 123 of 2008. The High Court after discussing the
judgments relied upon by the first appellate court and considering the
facts and evidence on record came to the conclusion vide judgment
dated 11.05.2009 that no fault could be found with the findings
recorded by the first appellate court holding that in absence of
pleading and proof of custom, no reliance could be placed on adoption
deed, specially when the stand of the plaintiff-appellant himself in the
suit was that he was governed by personal law, and the plea of
custom was in the alternative. The High Court, therefore, affirmed the
findings recorded by the first appellate court and dismissed the
appeals. Hence, the plaintiff-appellant has moved this Court by filing
the instant appeals by special leave.
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11. Ms. Jyoti Mendiratta, learned counsel appearing for the
appellant assailed the judgment and order passed by the first
appellate court and that by the High Court as being contrary to law
settled by judicial pronouncements that there is a custom prevalent
amongst the Jats in Haryana to adopt even a married person.
Learned counsel submitted that in view of the judicial pronouncements
both the courts have misdirected itself by holding that neither the
custom has been pleaded nor the same has been proved. Learned
counsel submitted that it is well recognized that the Hindu Jats are
governed by their customs and, therefore, even in the absence of a
pleading, the appellate courts ought to have affirmed the judgment
passed by the trial court. Learned counsel drew our attention to
various decisions favoured and against on this issue which have been
fully discussed by the courts below.
12. Section 10 of the Hindu Adoption and Maintenance Act,
1956 needs to be quoted hereinbelow:-
“10. Persons who may be adopted - No person shall
be capable of being taken in adoption unless the
following conditions are fulfilled, namely:-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
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(iii) he or she has not been married, unless there is a
custom or usage applicable to the parties which permits
persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years,
unless there is a custom or usage applicable to the
parties which permits persons who have completed the
age of fifteen years being taken in adoption.”
13. Under clause (iv) of Section 10, one of the conditions inter
alia is that the person who may be adopted has not completed the age
of 15 years unless there is a custom and usage applicable to the
parties which permit persons who completed the age of 15 years
being taken in adoption. The other condition for a valid adoption has
been provided in Section 11 of the Act which reads as under:-
“11. Other conditions for a valid adoption - In every
adoption, the following conditions must be complied
with:-
(i) if the adoption is of a son, the adoptive father or
mother by whom the adoption is made must not have a
Hindu son, son's son or son's son's son (whether by
legitimate blood relationship or by adoption) living at the
time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or
mother by whom the adoption is made must not have a
Hindu daughter or son's daughter (whether by legitimate
blood relationship or by adoption) living at the time of
adoption;
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(iii) if the adoption is by a male and the person to be
adopted is a female, the adoptive father is at least
twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be
adopted is a male, the adoptive mother is at least
twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously
by two or more persons;
(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 or in the case of an
abandoned child or a child whose parentage is not
known, from the place or family where it has been
brought up to the family of its adoption:
Provided that the performance of datta homam
shall not be essential to the validity of adoption.”
14. Clause (vi) of Section 11 specifically provides that the child
to be adopted must be actually given and taken in adoption by the
parents or guardian concerned or under their authority with the intent
to transfer the child from the family of its birth. A child who is
abandoned or whose parentage is not known may also be taken in
adoption provided the given and taken ceremony is done from the
place of family where it has been brought up to the family of its
adoption.
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15. Both the first appellate court and the High Court have
considered all the decisions relied upon by the parties and finally
came to the conclusion that neither the custom has been proved nor
the factum of adoption has been established by conclusive evidence.
Normally, the concurrent findings recorded by the two courts need not
be interfered with unless the findings appear to be perverse in law.
16. Without going into the question with regard to the custom
prevalent amongst the Jats to take in adoption a married man having
children, the evidence which has been brought on record goes against
the plaintiff-appellant on the basis of which it cannot be held that there
was a valid adoption.
17. The plaintiff-appellant impleaded his adoptive father Sarup
Singh as defendant No.1 and alleged that he was adopted by
defendant No.1. Curiously enough, defendant No.1, the so called
adoptive father, contested the suit by filing written statement making
an averment that he never adopted him as his son. If the adoptive
father himself asserted that he never took the appellant in adoption,
the court cannot come to the conclusion that appellant was taken in
adoption by defendant No.1. It is strange enough that when during the
pendency of the case defendant No.1 adoptive father died the plaintiff-
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appellant who claims himself to be the adopted son has not even
performed the last ritual and other ceremonies of the deceased. It has
also come in evidence that during the period when the alleged
adoption took place, the appellant’s natural father was Sarpanch of
the village and the register which was produced in court to show that
there was some entry with regard to adoption remained with the said
Sarpanch. Apart from that, defendant No.1 adoptive father in his
detailed written statement has denied each and every allegation and
claimed to be in cultivating possession of the land and further denied
that the appellant ever resided with him in his house or helped him in
cultivating the land. The evidence, in our view, goes against the
appellant and, therefore, it cannot be held that there is perversity in
the judgment passed by the two appellate courts.
18. In the light of the findings recorded by the two appellate
courts and the discussion made hereinbefore, we do not find any
reason to interfere with the judgments passed by the first appellate
court and the High Court.
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19. For the reasons aforesaid, we do not find any merit in
these appeals which are accordingly dismissed.
..……………………………J
(Surinder Singh Nijjar )
…………………………….J.
(M.Y. Eqbal )
New Delhi
April 17, 2013
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