RSA No.1621 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 1621 of 2007 (O&M)
Date of Decision: December 03, 2009
Amar Singh ...........Appellant
Versus
State of Punjab and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Munish Singal, Advocate for the appellant.
Mr.J.S.Sidhu,Advocate for the respondent
**
Sabina, J.
Plaintiff-Amar Singh filed a suit for declaration. Vide
judgment and decree dated 17.11.2004, the suit of the plaintiff was
dismissed by the Additional Civil Judge (Senior Division), Fazilka.
Aggrieved against the same, the plaintiff filed an appeal and the same was
dismissed by the Additional District Judge Ferozepur vide judgment and
decree dated 9.2.2006. Hence, the present appeal by the plaintiff.
The facts of the case in brief, as noticed by the learned
Additional District Judge in paras 2 and 3 of its judgment, are reproduced
herein below:-
“2.The facts pleaded by the appellant before the learned trial court
were that Kulwant Singh son of Hardit Singh was serving as
Assistant Line Man with respondent No.2 Punjab State Electricity
Board (hereinafter referred as the Board). When the appellant
was two years old Kulwant Singh adopted him as his son from his
RSA No.1621 of 2007(O&M) 2natural parents, who were residents of village Rukanpur because
Kulwant Singh was issueless. An adoption deed to this effect was
executed and got attested from Notary Public Fazilka. Kulwant
Singh died on 25.7.2000. The appellant performed all the last
rites and ceremonies of Kulwant Singh as his son. During his life
time, the appellant had been looking after Kulwant Singh as his
father. Kulwant Singh was having love and affection for him. On
5.4.2000 Kulwant Singh executed Will in favour of the appellant
bequeathing his movable or immovable properties in his favour,
including his service/pensionary benefits lying with the Board.
After the death of Kulwant Singh, appellant approached the
respondent No.2 to admit him as adopted son of Kulwant Singh
and to release bill the amounts belonging to Kulwant Singh but
they refused. The appellant served legal notice towards
respondent No.2 but with no effect. Hence, he filed suit for
declaration to the effect that he was adopted son of Kulwant
Singh and was entitled to receive all the service/pensionary
benefits of Kulwant Singh lying with the respondent No.2 on the
basis of adoption deed dated 5.8.1998 and also on the basis of
Will dated 5.4.2000 duly executed by deceased Kulwant Singh
3. Notice of the suit was given to the respondents. None appeared
on behalf of the respondents no.1 and 2 and thus they were
proceeded against ex-parte. Respondent No.2 appeared and filed
written statement contesting the suit of the appellant. In its
preliminary objections maintainability of the suit was challenged.
According to the contesting respondent, the appellant was having
RSA No.1621 of 2007(O&M) 3no locus standi to file the suit. He did not come to the court with
clean hands. Suit was based on frivolous grounds and on the
basis of fabricated and forged documents. On merits it was
averred that the appellant was never adopted by deceased Kulwant
Singh. It was averred that he was not entitled to receive any of
the service/pensionary benefits of Kulwant Singh lying with
respondent No.2. The documents were alleged to be forged and
fabricated. It was prayed that the suit of the appellant be
dismissed.”
On the pleadings of the parties, the trial Court framed the
following issues:-
“1.Whether the plaintiff is adopted son of Kulwant Singh, vide
adoption deed dated 5.8.1998?OPP
2.Whether Kulwant Singh executed a valid Will dated 5.4.2000 in
favour of the plaintiff?OPP
3.Whether the plaintiff is entitled to the declaration prayed
for?OPP
4.Whether suit of the plaintiff is not maintainable in the present
form ?OPD
5.Whether the plaintiff has no locus standi and cause of action to
file the present suit?OPD
6.Relief.”
After hearing the learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff had filed the suit that he was adopted son of
Kulwant Singh. An adoption deed had been executed on 5.8.1998 (Exhibit
RSA No.1621 of 2007(O&M) 4
P1). After the death of Kulwant Singh, plaintiff being adopted son was
entitled to the pensionary benefits. The case of the plaintiff further was that
he had been adopted by Kulwant Singh when he was aged about 2 years.
However, a perusal of the adoption deed reveals that the plaintiff had been
adopted by Kulwant Singh on 10.11.93. Thus, the plaintiff has taken a
contrary pleading with regard to the time of his adoption. As per Section 10
of the Hindu Adoption and Maintenance Act, 1956, the following are the
persons who may be adopted:-
1. he or she is a Hindu.
2. he or she has not already been adopted.
3.he or she has not been married, unless there is a custom or
usuage applicable to the parties which permits persons who are
married being taken in adoption;
4. 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.
Admittedly, the date of birth of the plaintiff is 25.2.1978.
Thus, the plaintiff was more than 15 years old when he was allegedly
adopted by Kulwant Singh on 10.11.1993. However, plaintiff had failed to
prove that there was any custom in their community which allowed adoption
of a boy of more than 15 years.
Exhibit D1 is the result of the plaintiff qua middle standard
examination wherein he is described as son of Banta Singh and not as son of
Kulwant Singh. Thus, the plaintiff had not been adopted by Kulwant Singh
till the year 1995. There is also no explanation as to why, the adoption deed
RSA No.1621 of 2007(O&M) 5
was executed in the year 1998 and not immediately at the time of adoption
of Kulwant Singh. The Courts below had, thus, rightly dismissed the suit of
the plaintiff.
No substantial question of law arises in this case which
would warrant interference by this Court. Accordingly, this appeal is
dismissed.
( Sabina )
Judge
December 03, 2009
arya