R.S.A.No.119 of 1982 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
REGULAR SECOND APPEAL NO.119 OF 1982
DATE OF DECISION: July 02, 2008
Shamsher Singh
.....Appellant
VERSUS
Gobind Singh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Deepak Sibal, Advocate with
Mr.Davinder Lubana, Advocate,
Mr.Akshay Bhan, Advocate,
for L.Rs of the appellants.
Mr.Vinod Bhardwaj, Advocate.
Mr.Ajay Tewari, Advocate,
for applicant in CM No.444-C of 2007.
Mr.G.S.Grewal, Senior Advocate with
Ms.Tanisha Peshawaria, Advocate,
for the respondents.
****
RANJIT SINGH, J.
Appellant has claimed right and title to the property being
an adopted son. He remained unsuccessful in suit which he filed and
in the first appeal and thus has challenged both the verdicts by filing
R.S.A.No.119 of 1982 (O&M) :2:
the present Regular Second Appeal.
The dispute goes to pre-partition era and present appeal
is pending since 1982. Even the appellant-plaintiff is no more and
stands substituted by his L.Rs. Similarly some of the respondents
also stand substituted by their L.Rs. on their death and this is so
reflected in the amendments carried out in the memo of parties from
time to time. Even now, one application is pending adjudication
whereby prayer has been made for impleading Gursharan Kaur as
respondent No.18 under Order 1 Rule 10 CPC. This application was
filed once the arguments in the case were heard and the judgment
reserved. The applicant claims herself to be legal heir of Sham Kaur
wife of Ganda Singh, whose property is in issue in the present
appeal. It is not made clear in the application as to how the applicant
has woken to be heard now and where she has remained though suit
was filed in the year 1976 and decided in 1979. This application
accordingly has been opposed by the respondents and the same
shall be dealt with after making reference to the controversy that
requires adjudication in the present case.
The facts in this case as noticed are that Shamsher Singh
(appellant-plaintiff) instituted a suit for declaration to the effect that he
is owner in possession of the land as described in the heading of the
plaint and for further declaration that he is owner of the equity of
redemption regarding land as separately detailed in the heading of
the plaint being Khata No.35/35 and Khasra number as mentioned
and entered in jamabandi for the year 1973-74, situated in the area
of village Sukhgarh, Hadbast No.89, Tehsil Kharar. In the alternative,
appellant-plaintiff also has claimed possession of the land in suit.
R.S.A.No.119 of 1982 (O&M) :3:
This land originally belongs to Ganda Singh son of Nihal Singh of
village Sukhgarh. Appellant-plaintiff is son of Karam Kaur daughter of
Harnam Singh, who was collaterally related to Ganda Singh. After the
death of Harnam Singh, the property owned by him was inherited by
his real brother Amar Singh. Amar Singh died issueless as he was
not married and thus property owned by Amar Singh was inherited by
Ganda Singh as he was the only surviving cousin of Amar Singh.
Ganda Singh died in the year 1948, leaving behind his wife Sham
Kaur and allegedly his adopted son Shamsher Singh (plaintiff-
appellant). Ganda Singh was a Jat agriculturist and thus was
governed by the customs in the matters of succession and adoption.
The averment in the suit further is that after the marriage of Karam
Kaur with the appellant-plaintiff”s father, she lived with Ganda Singh
and gave birth to two children, i.e., the appellant-plaintiff and his
younger brother Shivdev Singh. Ganda Singh was also issueless
and thus it is claimed that soon after the birth of appellant-plaintiff, he
had adopted the plaintiff as his son under the custom after
performing the requisite ceremonies. It is claimed that this adoption
was performed in the collection of brotherhood where `Gur’ (Jaggery)
was distributed and the appellant-plaintiff was taken in lap by Ganda
Singh. Ever since that date, appellant-plaintiff claims to have lived
with Ganda Singh and was treated as his son and the appellant had
been treating Ganda Singh as his father. It is also mentioned that
Sham Kaur wife of Ganda Singh has also been treating the
appellant as her son. Appellant also claims to have been brought up,
educated and married by his adopted father Ganda Singh. The case
further is that after the death of Ganda Singh, he alone was entitled
R.S.A.No.119 of 1982 (O&M) :4:
to succeed his property being his adopted son, but to gain the
confidence of his adopted mother, he allowed the mutation to be
sanctioned in favour of Sham Kaur, widow of Ganda Singh and
adopted mother of appellant-plaintiff. The mutation was sanctioned in
the names of Sham Kaur and Shamsher Singh in equal share.
Appellant Shamsher Singh had also acted as Lambardar for some
time and states to have been acknowledged as the adopted son by
Sham Kaur. He continued to live with his adopted mother and
enjoyed the property jointly with her. Appellant then claims that six
years prior to filing of suit, Sham Kaur died. He continued to be in
possession of the property but Basant Kaur and Baljit Kaur mothers
of defendants No.1 to 4 and 5 and 5-A respectively in collusion with
revenue authorities got the mutation of land sanctioned in their favour
bye-passing the appellant. He, thus, claims that the property was
wrongly mutated in favour of Basant Kaur and Baljit Kaur daughters
of Harnam Singh as he being adopted son was entitled to inherit the
property after the death of Sham Kaur. Appellant would further claims
that Sham Kaur was not the owner of the suit property and was
merely a trustee `Benamidar’ for the appellant-plaintiff, whereas the
legal and beneficial (equitable ownership) vested in the appellant-
plaintiff. Appellant has also claimed that he is managing the property
left by Sham Kaur, his adopted mother and is in cultivating
possession thereof. It is stated that the mutation sanctioned in favour
of defendants No.1 to 5-A vide mutation No.1064 dated 19.8.1971 is
without any right and authority and as such is altogether illegal. It is
on the basis of this mutation that the defendants are threatening the
appellant-plaintiff to take forcible possession of the suit land for
R.S.A.No.119 of 1982 (O&M) :5:
which they do not have any right to interfere in the peaceful
possession of the appellant-plaintiff. He has thus claimed declaration
of ownership regarding the land in his possession. As regards the
land which is in possession of the mortgagees, the appellant-plaintiff
has claimed declaration that he is the owner of equity of redemption
and in alternative he has claimed possession of the said suit land as
well. In short, the claim of the appellant-plaintiff is based on the fact
that he is the adopted son of Ganda Singh and Sham Kaur and thus
is entitled to the ownership and possession of the land to the
exclusion of Basant Kaur and Baljit Kaur daughters of Harnam
Singh.
The suit was resisted by the defendants, who are the
offspring of Basant Kaur and Baljit Kaur. As per the defendants, the
suit land was never owned or possessed by Ganda Singh. They also
denied if the appellant-plaintiff was ever adopted by Ganda Singh as
his son. It is claimed that he never became the adopted son of
Ganda Singh and Sham Kaur. The respondents would plead that the
appellant-plaintiff was never brought up, educated or married by
Ganda Singh and was never treated as son by Ganda Singh and
Sham Kaur. In their reply, the respondents would point out that the
appellant-plaintiff is recorded as son of Gurbachan Singh in the
school records and so too in the voters list and in the records of the
Army service, where he had remained from the year 1939 to 1941.
The respondent-defendants would also point out that the appellant
had raised a loan from the Co-operative Society, Sukhgarh
describing himself as son of Gurbachan Singh. It is claimed that even
Gurbachan Singh, the father of the appellant, has also denied the
R.S.A.No.119 of 1982 (O&M) :6:
alleged adoption. The deed of adoption which was pressed into
service, though not exhibited, is stated to be paper transaction
besides urging that appellant-plaintiff was never adopted nor treated
as such before or after the alleged deed of adoption which was also
destroyed by Ganda Singh. Explaining the mutation of the land in
favour of appellant, it is stated that the same was wrongly sanctioned
in his favour and presence of Sham Kaur was also wrongly recorded.
It is also mentioned that Sham Kaur never made any statement
conceding to the adoption and rather had hotly contested the alleged
adoption before a civil court in a suit filed by the appellant-plaintiff on
14.10.1958, which was dismissed on 16.12.1959. This suit was filed
by the appellant claiming possession of the land belonging to Ganda
Singh being his adopted son. Sham Kaur had denied the adoption as
alleged by the appellant-plaintiff in the said suit of which she statedly
was enjoying the exclusive possession even to the exclusion of the
appellant-plaintiff. It is further disclosed in the reply that Sham Kaur
had died much prior to six years of the institution of the present civil
suit. Accordingly, the ownership of the appellant and his possession
over the suit land is denied by the respondent-defendants. According
to the respondents, mutation was sanctioned in favour of Sham Kaur,
she being the only heir of Ganda Singh, which was never contested
by appellant-plaintiff. He also did not even make a claim before the
Rehabilitation Authorities for allotment of a land belonging to Ganda
Singh and left in Pakistan. It is, thus, claimed that mutation of
inheritance of Sham Kaur was rightly sanctioned in favour of Basant
Kaur, (mother of defendants No.1 to 4 and Balbir Kaur (mother of
defendants No.5 and 5-A).
R.S.A.No.119 of 1982 (O&M) :7:
To further strengthen their case, the respondents would
point out that the appellant-plaintiff had contested the mutation and
failed upto Financial Commissioner. It is, thus, denied that the
appellant-plaintiff is adopted son and is entitled to inherit the property
of Sham Kaur or Ganda Singh as claimed. The averment that Sham
Kaur was mere trustee is again denied by stating that she was the
owner in possession of the property and thus the land/property has
rightly come into the possession and ownership of Basant Kaur and
Baljit Kaur. It is also mentioned that Sham Kaur had never
mortgaged any land and as such the question of consent by the
appellant-plaintiff did not arise. Appellant-plaintiff is out of possession
and having failed in his suit filed for possession in the year 1959, his
right and title, if any, stood extinguished under Section 27 of the
Limitation Act. Respondent-defendants, thus, would also claim that
they are in adverse possession if not as rightful heir under a colour of
title as owner, continuously without interruption openly to the
knowledge of all concerned and as such have become owners by
adverse possession. The land mortgaged was redeemed by the
respondent-defendants on payment of mortgage money to which the
appellant has never raised any objection. It is also stated that the
appellant never took any action after dismissal of his suit filed for
possession on 14.10.1958, which was dismissed on 16.12.1959.
According to the respondents, this judgment is final and binding on
the parties and would operate as res judicata against the appellant-
plaintiff. The case of the respondents, thus, is that Sham Kaur was
holding this property inherited from Ganda Singh as owner to the
exclusion of the appellant-plaintiff since the year 1948. It is also
R.S.A.No.119 of 1982 (O&M) :8:
stated that Sham Kaur was the owner of ½ share in squares No.18
and 20 in Pakistan while Ganda Singh was owner of square No.19.
Sham Kaur and Ganda Singh held equal areas of land in Pakistan.
P.Rights Sanad was issued in favour of Sham Kaur regarding the
land owned and possessed by Ganda Singh as well as land owned
and possessed by her in Pakistan. Appellant-plaintiff had challenged
the same but failed before the civil court. As already noticed, he
never approached the Rehabilitation Authorities for that purpose.
Thus, the claim, he even may have, has become time barred.
On the pleadings of the parties, as afore-mentioned, the
trial court framed the following issues:-
1. Whether the plaintiff is adopted son of Ganda Singh?
OPP.
2. Whether the plaintiff and Smt.Sham Kaur inherited the
property of Ganda Singh in 1948 to the extent of ½
share, each? OPP.
3. Whether the defendants 1 to 5 are the next heirs of
Smt.Sham Kaur? OPD.
4. Whether the judgment dated 16.12.59 of the court of
Sub Judge Ist Class, Kharar operates as resjudicata?
OPD.
5. Whether Ganda Singh was the owner of the entire
property in dispute? OPP.
6. Whether the suit is properly valued for purposes of
court fee? OPP.
7. Whether the parties are governed by custom in the
matters of adoption and succession. If so, what the
R.S.A.No.119 of 1982 (O&M) :9:custom is? OPP.
8. Whether the suit is within time? OPP.
9. Whether Smt.Sham Kaur deceased held the property
in suit in trust and was a benami for the plaintiff? OPP.
10. Whether the plaintiff is entitled to succeed to Sham
Kaur as her adopted son? OPP.
11. Whether Sham Kaur and defendants 1 to 5 became
the owners by adverse possession? OPD.
12. Whether the defendants 1 to 5 got the land redeemed
as mortgaged by Sham Kaur and what is its effect?
OPD.
13. Whether the plaintiff is entitled to the declaration or
possession of the suit land? OPP.
14. Relief.
Issues No.1 to 7, 9 and 10 were decided against the
appellant-plaintiff by Sub Judge IInd Class, Kharar. He also found
issue No.11 in favour of the defendants. He accordingly dismissed
the suit of the appellant-plaintiff with costs. The appellant-plaintiff
filed appeal against this order dated 30.4.1979, which was also
dismissed on 5.10.1981 affirming the judgment passed by the Sub
Judge, Kharar. The findings on issues No.8 and 11 have been
reversed. That is how, the appellant-plaintiff is in second appeal.
Having regard to the rival contentions raised by
respective parties, the basic issue that would require determination in
the present case would relate to the aspect of adoption as pleaded
by the plaintiff-appellant and countered by respondent-defendants.
The remaining issues as framed would accordingly depend upon the
R.S.A.No.119 of 1982 (O&M) : 10 :
decision whether the appellant was able to establish his adoption to
be valid or not. To prove this adoption, the appellant has relied upon
the oral account given by himself, his natural father Gurbachan Singh
(PW1), Amar Chand (PW5), Hari Singh (PW6) and Nand Singh
(PW8). Their versions were analyzed and appreciated by both the
courts below to conclude that it would not be safe to rely upon said
versions to hold that adoption of the appellant was valid. On the
contrary, the respondent-defendants have highlighted various
circumstances and the evidence given by different persons to contest
the adoption as pleaded by the appellant-plaintiff. The views as
taken by the courts below have respectively been seriously
challenged by the counsel representing the respective parties and
need a notice.
Reliance has been placed on a copy of adoption deed,
which was marked `A’ and was not exhibited on record. The first
question that arose was to see if this document can be looked into by
the court in evidence or not. To counter this, the counsel for the
appellant would rely on legal re-course by saying that the existence
of the adoption deed has been admitted by the defendants in the
written statement filed by them and this is a valid piece of evidence
wrongly ignored. Averments in the reply in this regard are as under:-
“The alleged deed of adoption was all a paper
transaction. In fact, the plaintiff was never adopted nor
treated as such before or after the alleged deed which
was destroyed by Ganda Singh”.
This is stated to be an admission on the part of the
respondents and it is urged that this would show that (i) the existence
R.S.A.No.119 of 1982 (O&M) : 11 :
of adoption deed was admitted, (ii) the contents thereof are also
admitted when it is stated that it was not acted upon. Counsel would
plead that this can be so urged only if one had gone through the
contents of the adoption deed. He, thus, contends that the contents
of the deed are admitted.
The first question that would require consideration is
whether this adoption deed can be taken into consideration or not.
Concededly this document is a marked document and was not
exhibited. The legal position in regard to marked document, is well
settled. The main argument raised by the counsel for the appellant
that the admission made by the respondents about the adoption
deed would cure this defect would help the cause of the appellant if
the contents of the reply, as referred and reproduced above, are
termed as admission on the part of respondent-defendants. The
contents cannot be taken as admission. The portion reproduced
above and highlighted as admission apparently is taken out of
context to urge that it would amount to admission. As to what
constitute admission is well understood in the legal parlance to invite
any uncalled for debate in this regard.
Under Section 17 of the Indian Evidence Act, an
admission is defined as a statement oral or documentary, which
suggests any inference as to any fact and issue or relevant fact. An
admission is a voluntary acknowledgment by a party or some one
identified with him in legal interest of the existence of certain facts
which are in issue or relevant to an issue in the case. Admission
unless explained furnishes the best evidence, but admission as a
whole has to be looked into for arriving at a conclusion. To have
R.S.A.No.119 of 1982 (O&M) : 12 :
value and an effect as stated, an admission has to be clear, certain
and definite and not ambiguous, vague or confused. Statement to
operate as an admission must be clear in its meaning. Admission is
not conclusive proof of the matter admitted, though it may in certain
circumstances operate as estoppel. (See K.S. Srinivasan v. Union of
India, AIR 1958 SC 419). It has also been held In the case of
Nagubai Ammal and others v. B.Shama Rao and others, AIR 1956
SC 593 that an admission is not a conclusive as to the truth of a
matter stated therein. It is only a piece of evidence, the weight to be
attached to which must depend on the circumstances under which it
is made. It can be shown to be erroneous or untrue, so long as the
person to whom it was made has not acted upon it to his detriment,
when it might become conclusive by way of estoppel. It is further held
that it must be shown that there is a clear and unambiguous
statement by the opponent, such as will be conclusive unless
explained. Section 17 of the Indian Evidence Act does not seem to
be making any distinction between an admission made by a party in
a pleading and other admissions and admission made by a party in a
plaint signed and verified by him. However, such an admission
cannot be regarded as a conclusive in the other suit and it is open to
a party to show that it is not true. (See Basant Singh v. Janki Singh,
AIR 1967 SC 341).
In this context, let us see if the alleged averment made in
the reply, as reproduced above, can be taken as an admission or not.
The contents of the reply that alleged adoption deed was a paper
transaction is being pressed to say that this amounts to an admission
by the respondents that there was an adoption deed. This certainly
R.S.A.No.119 of 1982 (O&M) : 13 :
would not fit in the definition of an admission as noted above. This
adoption deed, which is described as a paper transaction, is referred
to as `alleged’. This has also to be read as whole and not in isolation
as is being done In the reply, it is further mentioned that the plaintiff
was never adopted nor treated as such and so this alleged deed was
destroyed by Ganda Singh. The only inference that can be drawn
from this reply is that there was an alleged adoption deed which was
not true and was destroyed. How this can be treated as an admission
on the part of respondents to say that there was a valid adoption
deed is really not understood. In fact this has also to be appreciated
in the context of complete averment in this regard in the reply. The
perusal of the plaint would show that averment in regard to adoption
of the plaintiff after performing the customs and ceremonies is
averred in para 5 of the plaint. In reply to this, the respondents
admitted the fact that Ganda Singh was issueless as correct but
denied the remaining part as wrong by further mentioning that
“plaintiff was never adopted by the deceased Ganda Singh”. In para
6 of the plaint, it is stated that after adoption, plaintiff lived with
Ganda Singh, who has been treating him as his son and plaintiff has
been treating Ganda Singh as his father. Similar averment in regard
to Sham Kaur for treating the appellant-plaintiff as her son is also
made, besides stating that the plaintiff was brought up, educated and
married by his adopted father (Ganda Singh). This para of the plaint
has again been denied as wrong. It is further stated that there was no
such treatment as alleged. The fact as pleaded that plaintiff was
brought up, educated or married by Ganda Singh is also denied and
rather it is pointed out in the reply that the appellant-plaintiff is
R.S.A.No.119 of 1982 (O&M) : 14 :
recorded as son of Gurbachan Singh in the school record, in the
voters list and in the Army where he was in the service from 1939 to
1941. It is further averred that the plaintiff had also raised a loan from
Co-operative Society, Sukhgarh where he had described himself as
son of Gurbachan Singh. Reference is also made that even his
natural father Gurbachan Singh had denied the fact that the plaintiff
was adopted. It is thereafter stated “that the plaintiff was never
adopted by Ganda Singh nor treated as his son. The alleged deed
of adoption is all a paper transaction. In fact the plaintiff was
never adopted nor treated as such before or after the alleged
deed which was destroyed by Ganda Singh.” Reading in this
context as a whole, this part of a written statement can certainly not
be termed as an admission. In order to be competent, an admission
has to be clear, certain, definite and not vague or confused which is
not so in the present case.
It is further required to be appreciated that the
respondents are not party to the execution of the adoption deed.
They are also not witnesses to said adoption deed. The admission in
regard to adoption deed by them, as such, obviously would not carry
any presumption against them even if the statement as alleged and
reproduced above is taken as an admission on the part of the
respondent-defendants. As per Section 70 of the Indian Evidence
Act, admission of a party to an attested document of its execution by
himself shall be sufficient proof of its execution against him, but no
such presumption otherwise be carried when the admission is in
regard to a document which is not executed by a party concerned.
R.S.A.No.119 of 1982 (O&M) : 15 :
Section 70 is otherwise exception to Section 68 which requires
examination of attesting witness to prove a document which is
required by law to be attested. Requirement of examining an
attesting witness, thus, can be dispensed with where executant
admits execution and not in other cases. As per proviso to Section
68, calling of attesting witness to prove registered document can be
dispensed with unless its execution is denied by the executant.
Execution of the document is not admitted by the executant, who is
not available, which would mean that the same is denied. The
averments referred above certainly cannot be termed as `admission’.
This line of argument is, thus, required to be rejected.
In fact, a further peep can be had to the stand of the
respective parties, from the response, which, the respondents filed to
the application seeking permission to lead secondary evidence in
regard to this document. In para 1 of the application, it was averred
by the appellant-plaintiff “that Ganda Singh deceased had adopted
the plaintiff as his son and had also executed a registered adoption
deed on 14.11.1936”. In reply, the respondents stated this para to be
wrong and hence denied and then further stated “the plaintiff was
never adopted by Ganda Singh. The alleged deed of adoption was
got executed by Gurbachan Singh father of the plaintiff, when he
(Ganda Singh ) came to know that it was a deed of adoption, which
never took place, he destroyed the same. He never executed any
deed of adoption or if at all, it was executed, he was made to sign by
Gurbachan Singh, exercising undue influence.” This will explain the
stand of the respondent-defendants in the reply filed where this deed
was termed as alleged deed of adoption and it would have to be
R.S.A.No.119 of 1982 (O&M) : 16 :
looked into as a whole and a few lines cannot be taken in isolation to
conclude that the respondent-defendants have admitted the adoption
deed. The admission made in ignorance or under duress cannot bind
the maker of the admission. (See Shri Krishan v. Kurukshetra
University, AIR 1976 SC 376). As already noticed, the alleged
admission of this adoption deed by the respondent-defendants is not
at all an admission nor it can be taken against the respondents, who
were not party to this adoption deed to make any such admission in
regard to its execution. The line of reasoning as adopted by the
counsel for the appellant to say that this document is required to be
taken into consideration on the basis of an admission made as such
cannot be accepted and is bound to be rejected.
Though the adoption deed can not be taken to have
been admitted but still the Trial Court took the same into
consideration as secondary evidence on the ground that its existence
was established and destruction conceded. This approach on the
part of the Trial Court was not put to any serious challenge before the
lower Appellate Court or in the present Second Appeal.
The record of the proceedings would reveal
that certified copy of the adoption deed was kept as mark `A’ and
was to be exhibited on proof of the existence and loss of the original
deed. The trial court after making reference to the record came to the
conclusion that plaintiff was able to establish the loss of the original
adoption deed and in this regard made reference to the contents of
the reply filed by the respondent-defendants that the adoption deed
was destroyed by Ganda Singh. It was accordingly observed that the
existence of the original was established and so also the loss even
R.S.A.No.119 of 1982 (O&M) : 17 :
from the statement made by the defendants and thus it was held that
this document though kept as marked can be taken into
consideration as evidence in the form of a secondary evidence.
There was no argument raised before the Appellate Court in this
regard. Mere admission of the document as secondary evidence
would not mean that its contents will also stand proved. This would
not be enough to show that this document contains truthful account
of adoption and can be relied upon. Mere marking a document or
exhibiting the same would not dispense a party to prove the contents
thereof. Mere proof of signature on a document would not lead to
proof of the contents or truth of the account given therein. Here even
signature or the thumb impression was not proved to say that
documents or contents stood proved. Though elementary but
document can be proved by various methods. Ordinarily handwriting
and signatures can be proved by calling a person as witness, who
wrote it, signed it or saw it being written or signed or who is qualified
to express an opinion as to the handwriting or signatures in terms of
Section 47 of the Evidence Act or as an expert under Section 45 of
the Evidence Act. It can be proved by a comparing handwriting under
Section 73 of the Evidence Act or by admission of the person against
whom it is tendered. Signature alone does not in all cases complete
the execution of a document for the purpose of giving it legal validity.
Merely by proving the handwriting or signature of the person writing
or signing a document through another witness, the contents or the
correctness of the said document could not be said to have been
proved.
Let us now proceed to see if this adoption deed has been
R.S.A.No.119 of 1982 (O&M) : 18 :
proved or not. The courts below have given cogent and valid
reasons in this regard to discard this exhibit from consideration.
Various reasons were noticed to hold that the adoption deed can not
be believed. The adoption deed is dated 14.11.1936. From the copy
which is marked `A’, it is seen that it contains a recital that Ganda
Singh was 70 years old and thus there was no prospect of his getting
any child and he being issueless had brought up Karam Kaur
daughter of his real brother Babu Harnam Singh (deceased) like his
own daughter and that he had married her to Babu Gurbachan Singh
of District Ludhiana. It is further mentioned that he was keeping
Gurbachan Singh and Karam Kaur as his son-in-law and daughter
and that they had two sons born at his house and that he had
adopted Shamsher Singh as his son in the presence of panchayat
baradari and with the consent of parents of Shamsher Singh
(appellant-plaintiff). The document also contains a reference that he
had taken Shamsher Singh in his lap. He brought him up like his own
son, married him and was giving him education and that there was a
treatment of father and son between them. It is further mentioned
that he, his mother and father Gurbachan Singh were serving him
and that Shamsher Singh would be entitled to all the rights in his
property like his natural son and that after his death he would
succeed him as his natural son. Thus, the recital in the document
would show that Shamsher Singh was married prior to 14.11.1936
and that marriage of his mother Karam Kaur was performed by
Ganda Singh with Gurbachan Singh. It is also recorded in the
document that Gurbachan Singh and Karam Kaur were living with
Ganda Singh at his house and plaintiff Shamsher Singh had been
R.S.A.No.119 of 1982 (O&M) : 19 :
adopted by Ganda Singh right since the day he was born. Harnam
Singh is recorded as real brother of Ganda Singh.
Majority of the recitals in the adoption deed are factually
incorrect and rather are wrong. The recitals in this document are also
contrary to the evidence on record. Harnam Singh, who is recorded
as brother of Ganda Singh, is not his brother. In fact, Harnam Singh
is merely a collateral. Gurbachan Singh (PW-1), while appearing as
witness has stated that his marriage with Karam Kaur was performed
by his father-in-law Harnam Singh. This is again contrary to the
recitals in the adoption deed that PW1 was married by Ganda Singh.
Harnam Singh in fact had died a year prior to 1920-22. Harnam
Singh’s property was inherited by his real brother Amar Singh.
Appellant-plaintiff was born in the year 1919. Thus, marriage of his
father Gurbachan Singh took place prior to 1919, i.e., during the life
time of Harnam Singh. Thus, Harnam Singh would have married his
daughter and no occasion would arise for Ganda Singh to marry
Karam Kaur with Gurbachan Singh. In the year 1936, age of Ganda
Singh is given as 70 years. Obviously, the adoption being in the year
1920 (immediately after birth of appellant-plaintiff) Ganda Singh was
50-52 years old at that time. Would he think of adopting a child at
that age where he could certainly expect a birth of some child from
the womb of his wife.? He was not certainly of that old age to lose
hope of begetting a child. One may not lose sight of the fact that prior
to 1955, there was no hindrance for Ganda Singh to get married
more than once. Could he then think of adopting a child as is being
made out.? This aspect would certainly cast another doubt regarding
the fact of adoption as pleaded. It has also not been sufficiently
R.S.A.No.119 of 1982 (O&M) : 20 :
established by any evidence on record that Gurbachan Singh’s
marriage with Karam Kaur was performed by Ganda Singh. Rather it
has come on record that it was performed by Harnam Singh as
stated by Gurbachan Singh (PW1). Karam Kaur is not the real
daughter of Ganda Singh nor was she brought up by Ganda Singh as
his own daughter. Evidence on record also would not show that
Gurbachan Singh and Karam Kaur ever lived with Ganda Singh at
village Sukhgarh.
As per the stand of appellant-plaintiff, he was adopted by
Ganda Singh soon after his birth by performing necessary
ceremonies. In support of the same, he has produced on record the
oral account of some of the witnesses. The appellant himself has
appeared as a witness to say that on attaining the age of discretion
he found himself to be adopted son of Ganda Singh. He has stated
that he used to address Ganda Singh as his father and Sham Kaur
as his mother. Gurbachan Singh (PW-1), natural father of the
appellant, has appeared in support of the version of the appellant. He
has stated that he has given the appellant in adoption to Ganda
Singh when he was 5-6 months old. As per PW-1, panchayats of
village Sukhgarh and that of the surrounding villages had collected in
the house of Ganda Singh, when appellant Shamsher Singh was put
in the lap of Ganda Singh, who had then proclaimed that from the
said date Shamsher Singh would be his son. His evidence further is
that Ganda Singh and his wife kissed the head of appellant
Shamsher Singh, besides proclaiming that he would thereafter be
their son. It is also stated by PW-1, that the appellant-plaintiff
thereafter lived with Ganda Singh and Sham Kaur and was married
R.S.A.No.119 of 1982 (O&M) : 21 :
by Ganda Singh in village Karoran. This witness has also disclosed
that in the year 1936, an adoption deed was executed by Ganda
Singh, copy of which is mark `A’. This deed was statedly attested by
Devi Dial and Sahib Dass, both of whom had died and were not
available to depose. It is also claimed that this deed was attested by
Sub Registrar and was signed by Ganda Singh. It is in this
background that Ganda Singh, according to this witness, had brought
up the appellant-plaintiff. He had also taken him to Pakistan Chak
No.130 in Sargodha District along with Sham Kaur. Ganda Singh,
after the death of Amar Singh, had inherited the property belonging
to Amar Singh which he owned in Pakistan. It is in the evidence of
this witness that appellant-plaintiff was married by Ganda Singh at
village Sukhgarh before he left for Pakistan.
Other witnesses examined in support of the case set up
by the appellant are Amar Chand (PW-5), Hari Singh (PW-6) and
Nand Singh (PW-8). Amar Chand (PW-5) stated that he has seen
appellant living with Ganda Singh and being treated by both Ganda
Singh and Sham Kaur as their son. Hari Singh (PW-6) is the real
uncle of Amar Chand and stated that he was the Pandit of Ganda
Singh’s family and thus knew that the appellant-plaintiff was an
adopted son of Ganda Singh. According to PW-6, appellant was
adopted about 50 years back and this witness claims to be present at
the time of adoption. He has also given evidence that natural father
of appellant, i.e., Gurbachan Singh (PW-1) had put appellant
Shamsher Singh in the lap of Ganda Singh, who had then kissed
forehead of Shamsher Singh and thus treated him as his son. At that
time, appellant’s natural mother was also present and both natural
R.S.A.No.119 of 1982 (O&M) : 22 :
father and natural mother had proclaimed that their relationship with
appellant Shamsher Singh would cease. Amar Chand (PW-5) also
gave evidence that appellant is adopted son of Ganda Singh. He
gave his age as 50 years. His version was doubted by the courts on
the ground that he had a motive to give evidence in support of the
appellant and against the interest of respondent-defendants. In fact,
he was the mortgagee of land and mortgage in his favour had been
got redeemed by Basant Kaur and Baljit Kaur, mothers of the
respondent-defendants. PW-5 thus had to give up the possession of
the land and thus was found to have interest and motive to give
evidence against the respondents and in favour of the appellant-
plaintiff. Hari Singh (PW-6) gave his age as 65 years on 3.9.1977. On
this basis, it was noted by the court that he must be 8-10 years old in
the year 1920, when this adoption allegedly took place. It is to be
noted that appellant Shamsher Singh was born on 19.11.1919 and
according to his natural father was given in adoption when he was 5-
6 months old. Thus, this adoption was in the year 1920, when PW-6
would be 8-10 years of age. There is substance in the observation
made by the court that a person who was 8-10 years old would
hardly be able to recollect the happenings which took place 55-60
years ago. The witness would not be having the age of discretion
where he would have been able to understand the niceties of
adoption ceremony and to give evidence thereof after such a long
lapse of time in the manner he has deposed. Devi Dial, Sahib Dass,
Dasondha Singh and others were stated to be present but two out of
these could not be examined as are dead. It is not clear if this deed
was required to be registered as per law. If so, then Sections 68 and
R.S.A.No.119 of 1982 (O&M) : 23 :
70 of Evidence Act would come into play. Execution of adoption deed
is not admitted and as such the appellant was required to prove this
document in the absence of attesting witnesses. PW-5 and PW-6
were also found to be belonging to village Mauli Baidwan and not to
village Sukhgarh. They have not explained as to how they were
called though not belonging to the village of Ganda Singh. In fact,
none from village Sukhgarh has been produced to prove adoption
except Nand Singh (PW-8). PW-8 has given evidence in regard to
the ceremonies performed at the time of adoption. This witness
himself has claimed that he was 15-16 years old while his father was
40-50 years old at the time of adoption. He is Saini by caste. Ganda
Singh was a Jat. It is difficult to accept that a person of Saini caste,
that too aged 15-16 years, would be called to witness the adoption
ceremony and no Jat would be so called to come present. No one
has appeared from the brotherhood of Gurbachan Singh (PW-1) to
prove the adoption. The respondents, thus, pleaded that the
evidence led on behalf of the appellant-plaintiff in support of the
adoption was properly analysed and discarded for valid and justified
reasons. The versions of these witnesses were not found safe for
reliance to come to a conclusion that adoption of the appellant-
plaintiff stood proved or established. I would not find any justifiable
reasons to interfere with this reasoning given by both the courts
below in ignoring the evidence of such witnesses in this Regular
Second Appeal. Merely because a different view may also be
possible on the basis of evidence, which is available on record,
cannot be a sufficient reason under law to interfere in the findings of
fact as recorded on proper appreciation of that evidence. This is
R.S.A.No.119 of 1982 (O&M) : 24 :
more so in the background that there is rather more convincing
evidence led by the respondent-defendants to show that the adoption
indeed was never executed or acted upon subsequently. As held in
Inder Singh v. Gurdial Singh, 1967 SC 119, the formalities necessary
for adoption are declaration of adoption and then general treatment
of the appointed heir as a son. It is further held that a mere
declaration or even the execution of a deed of adoption
unaccompanied by precedent or subsequent treatment is insufficient.
If really Ganda Singh had adopted appellant-plaintiff, it was bound to
be reflected in the school record, where Shamsher Singh was got
admitted. In the school leaving certificate, he is shown as son of
Gurbachan Singh and not as adopted son of Ganda Singh. This
certificate issued by Khalsa High School, Sohana is on record as
Exh.D2. The plaintiff was admitted in the school on 26.2.1936 and
withdrawn on 31.3.1936. Similarly, the plaintiff was admitted in
Government Primary School, Raipur Kalan on 1.12.1927 and
withdrawn on 31.3.1930, where again he was shown as son of
Gurbachan Singh. Another fact of significance, as may be noticed, is
that the appellant-plaintiff was admitted in Primary School, Raipur
Kalan, District Ropar by Ganda Singh, who described him as his
“Dhota’. The appellant-plaintiff had joined the Army service where he
remained in the service for 2-3 years and was discharged in the year
1945. In the Army record, the name of the father of the appellant-
plaintiff is mentioned as Gurbachan Singh. Similarly, he became
member of the Co-operative of Village Sukhgarh where he again
gave his father’s name as Gurbachan Singh. Thus, it can be seen
that neither in the year 1920 nor after 1936, the appellant-plaintiff
R.S.A.No.119 of 1982 (O&M) : 25 :
was ever treated by Ganda Singh as his adopted son. Even if some
adoption was done or ceremony performed, it was not acted upon as
can be seen from the subsequent treatment both by appellant-
plaintiff as well as by late Ganda Singh. The evidence led by
respondents is more convincing and is in the form of old documents,
whereas the appellant would seek support from oral account given by
persons, whose evidence is not free from doubts. This evidence is
thus insufficient.
When the appellant-plaintiff was confronted with this fact
that name of his father is mentioned as Gurbachan Singh in the
school and other records, he was seen to be changing his stance a
bit by suggesting to the defence witnesses that he was adopted in
the year 1936 by Ganda Singh. This would expose him and his stand
and bring the falsity thereof. Earlier evidence was led to show that
adoption was immediately after birth, which was in 1919. To explain
this fact, the appellant introduced another falsehood by saying that
he was adopted in 1936. This rather exposed his entire game that he
was resorting to one falsehood after another.
The respondents relied upon one Tamliknama (Exh.D1)
which was executed in the year 1943. This Tamlik is in favour of
Smt.Sham Kaur wife of Ganda Singh where he gave ½ share of
squares No.18 and 19 to his wife to enjoy the income of this ½ share
giving her right to lease out and enjoy the lease money but not to
have the right to sell or mortgage the same. It is further mentioned in
the Tamlik that in case she pre-deceased Ganda Singh, then the
ownership would revert back to him (i.e. Ganda Singh) and after his
death, it would pass on to one who was nominated as heir by him. It
R.S.A.No.119 of 1982 (O&M) : 26 :
is rightly urged by the respondents that in case Ganda Singh had
validly adopted Shamsher Singh, he was not required to mention in
the Tamlik that his property would go to any heir nominated by him
and he could have easily recorded therein that it would go to his
adopted son. This is another factor which certainly would again go to
cast doubt on the adoption deed relied upon by the appellant-plaintiff.
As per the counsel for the appellant, this Tamliknama should not be
given much importance as it will not give any indication that
Shamsher Singh was not treated as adopted son. The counsel would
explain that Ganda Singh had played safe in giving this right to his
wife in Tamliknama and not much significance can be attached to the
averment that Ganda Singh had mentioned therein that the property
will go to his nominated heir. Describing this to be conjectural and
unsustainable, the counsel has attacked the finding in this regard. In
my view, this cannot be described as purely conjectural finding. This
can be more appropriately termed as inferential finding. In fact an
inference can certainly be drawn from this fact that Ganda Singh may
not have been treating the appellant as his adopted son. If he had
been treating appellant as his adopted son, he could be expected to
write in his Tamliknama that the property would go to his adopted
son and would not have recorded that it would go to an heir to be
nominated by him. From this, it is possible to deduce an inference
that Ganda Singh did not treat Shamsher Singh appellant as his
adopted son. No fault can be found in this regard on the part of the
courts below to so infer. This is not a conjecture but is an inference
which is available to be drawn on the basis of material led in
evidence. This finding could be termed as conjectural if there had
R.S.A.No.119 of 1982 (O&M) : 27 :
been no material available on record to base the finding. Material and
evidence is on record to infer and deduce a finding as is done. Thus,
this inference is a possible one and rightly drawn.
There is another very important and significant piece of
evidence available on record which would cause serious dent to the
case of the appellant-plaintiff. Ganda Singh, who died in the year
1948, held land in Chak No.130, District Sargodha (Pakistan). His
wife Sham Kaur was also having land in District Sargodha in Chak
No.130. The land, which was standing in the name of Ganda Singh,
was required to be allotted by the custodian to Sham Kaur and
Shamsher Singh, if indeed Shamsher Singh had been an adopted
son of Ganda Singh. Instead, entire land standing on the name of
Ganda Singh was allotted to Sham Kaur, his wife. The appellant-
plaintiff thereafter filed a suit in the year 1958 seeking possession of
½ share of the land held by Ganda Singh and allotted to Sham Kaur.
In this suit, the appellant-plaintiff had alleged that he was the
adopted son of Ganda Singh and so land of Ganda Singh should
have been allotted to him and to Sham Kaur in equal shares. Copy of
the plaint in this regard is on record as Exh.D4. Sham Kaur filed a
written statement in this suit which is also on record as Exh.D3. This
written statement was filed by Sham Kaur through her attorney
Gurbachan Singh, none other than the natural father of appellant-
plaintiff Shamsher Singh. In this written statement, the fact of
adoption of Shamsher Singh or he being adopted son of Ganda
Singh is denied. Natural father of Shamsher Singh, thus, has filed a
written statement on record on behalf of Sham Kaur that plaintiff
Shamsher Singh was not the adopted son of Ganda Singh. It is also
R.S.A.No.119 of 1982 (O&M) : 28 :
mentioned that Ganda Singh could not have adopted Shamsher
Singh son of Karam Kaur as Ganda Singh could not have legally
married Karam Kaur, she being daughter of Harnam Singh, a cousin
of Ganda Singh. It is, thus, stated that Ganda Singh could not have
legally produced Shamsher Singh because of his relationship with
Karam Kaur. This suit filed by plaintiff was dismissed by Sub Judge
Ist Class, Kharar on the ground that the jurisdiction of the civil court
was barred. Still, Shamsher Singh never took any action to challenge
the said finding or to otherwise make any approach before
Rehabilitation Authorities to claim ½ share of the land held by Ganda
Singh and which stood allotted to Sham Kaur. If really Shamsher
Singh had been adopted as a son by Ganda Singh, he was bound to
pursue his claim, which, he did not and this fact accordingly would
stand against him and the plea that he has raised in the present suit.
This fact again cannot be easily ignored. If really Shamsher Singh
had been adopted by Ganda Singh, then would his natural father
Gurbachan Singh file a written statement to say that he was not the
adopted son?. This happened in the year 1958, much after the
adoption or the deed being of the year 1936.
How would Gurbachan Singh explain this admission on
his part?. This admission is rather categorical. His evidence which
has now given in the present suit to say that Shamsher Singh was
adopted by Ganda Singh is also contrary to the admission made by
him in the earlier suit filed in the year 1958. At any rate, it can
certainly be said that he is not a reliable witness to base the finding
as he has chosen to take different stands at different times. In fact,
this admission made by Gurbachan Singh is in line with the record
R.S.A.No.119 of 1982 (O&M) : 29 :
where appellant is described as his son in all the records as referred
to above. He has now changed his version which is with interest to
favour his natural son. It is not possible for Gurbachan Singh to
explain this contradiction. He cannot plead any ignorance on his part.
Version of this witness is again contradictory in another suit filed by
Baljit Kaur and Basant Kaur in the year 1951. In this suit, Sham Kaur
had admitted the fact that Ganda Singh her husband had adopted
Shamsher Singh. This fact has been highlighted by the counsel for
the appellant also. Baljit Kaur and Basant Kaur, both daughters of
Harnam Singh, had instituted this suit for possession of land against
Shamsher Singh and Sham Kaur. In a joint written statement filed by
Sham Kaur and Shamsher Singh, it was pleaded that Shamsher
Singh was the adopted son of Ganda Singh and on death of Ganda
Singh, they both are entitled to inherit the property. The courts below
have found this so called admission made by Sham Kaur to be one
which was obtained by Gurbachan Singh and Shamsher Singh
exerting undue influence. This aspect cannot be completely ignored
from consideration. It is seen that Gurbachan Singh had been an
attorney of Sham Kaur and this admission apparently has been
obtained by Gurbachan Singh or Shamsher Singh because of the
peculiar situation and circumstances in which Sham Kaur was then
placed in a suit filed by Baljit Kaur and Basant Kaur. This is also an
admission made in a joint written statement filed by Shamsher Singh
and Sham Kaur. Sham Kaur got a chance to explain this admission
in the subsequent suit filed by the appellant in 1958, where she
denied the adoption through the natural father of the appellant. This
admission, as such, would not be worthy of much credence and this
R.S.A.No.119 of 1982 (O&M) : 30 :
would not have much legal value. Further it can be explained to have
been made under some compulsion or duress. Subsequently, same
Gurbachan Singh had denied the aspect of adoption while filing a
written statement in a suit filed by his own son Shamsher Singh in
the year 1958. Gurbachan Singh could have easily then said that
Shamsher Singh is the adopted son, the stand which Sham Kaur
took in this suit filed in the year 1951. The courts had rightly
discarded this piece of evidence as an admission, which was wrongly
made, besides it being a joint admission and not such an admission
which was exclusively made by Sham Kaur. This admission is
certainly explained by subsequent conduct of Sham Kaur through
Gurbachan Singh. It is settled position of law that admission is not a
conclusive as to the truth of the matter stated therein, though it may
operate as estoppel in certain circumstances. Admission can also be
explained to be made under duress or on some misconception. It is
also required to be appreciated that the adoption was by Ganda
Singh and not by Sham Kaur. There is no admission made and
brought on record by Ganda Singh about the factum of he having
adopted Shamsher Singh. Record rather would show that Ganda
Singh denied adoption. He referred the appellant as his `Dhota’ when
he admitted him in school. Thus, the record as reflected subsequent
to the adoption of Shamsher Singh and which had been referred to
above, like school leaving certificate and record in the Army service
would clearly fall in line with the admission made by Gurbachan
Singh, wherein he has denied that Shamsher Singh, his natural son,
was adopted son of Ganda Singh and Sham Kaur. Gurbachan
Singh, while appearing as PW-1 in the present suit was confronted
R.S.A.No.119 of 1982 (O&M) : 31 :
with this fact and it would be relevant to refer to his version in this
regard. PW-1 deposed that he cannot say whether Shamsher Singh
was ever treated as adopted son by Ganda Singh or not. He further
admitted that on asking of Sham Kaur he made an application in Civil
Suit No.3, Shamsher Singh Vs. Sham Kaur in the court of Sub
Judge, Kharar on 16.12.1959 for vacating ex-parte proceeding.
Gurbachan Singh further admitted to have sworn affidavit as general
power of attorney of Sham Kaur and of having filed a written
statement on 25.8.1959, where on asking of Sham Kaur he had
denied the adoption of Shamsher Singh by Ganda Singh (emphasis
supplied). His version now given in examination-in-chief, as such,
cannot be believed. He is not a reliable witness and can change his
stand according to his convenience. This will also go, to an extent, to
explain the stand of Sham Kaur taken in the year 1951, because of
the compulsion and it not being true statement, which in any case
was joint written statement filed by her and the appellant.
The counsel for the appellant-plaintiff then attempted to
contend that adoption deed dated 14.11.1936 is a registered
document, duly signed by Ganda Singh. Learned counsel has not
been able to appreciate that this document is not exhibited on record
having not been properly proved or established. A detailed
discussion has been made above to show that the aspect highlighted
by the counsel that it should be treated as an admission also cannot
be accepted. Admissibility of a document in evidence and proof of its
contents are two different aspects. Even mere proof of signature on
the document can not lead to proof of its contents. The counsel has
made reference to some of the judgments to say that admission of a
R.S.A.No.119 of 1982 (O&M) : 32 :
document would amount to proof of contents. Even then it is no proof
of its truthfulness.
Reference has been made to the case of Life Insurance
Corporation of India v. Narmada Agarwalla and others, AIR 1993
Orissa 103. This was a case where document was marked on
admission and it was observed by the court that the question of
admissibility recedes to background. It is further observed that it was
open to the plaintiffs not to admit the document and if it was wrongly
stated to be marked on admission, plaintiffs could have brought the
same to the notice of the court to correct the error. It is in this
context observed that once a document is marked on admission, the
contents thereof are also treated to be admitted. The court further
held that contents may have been admitted but not its truth as the
party admitting a document even has a right to explain that though
the document contains such a statement but it is not correct or true.
The ratio of law as laid down in this case certainly is not attracted to
the facts of the present case. In the instant case, there is no
admission made by the respondents of the document concerned and
rather this document is seriously disputed. The plea of admission by
respondents being urged by the counsel for the appellant has been
rejected. It cannot, thus, be said that this document was marked on
admission and that its contents would also stand admitted. Document
has still remained a marked one and not exhibited. Reference is then
made to the case of M/s. Sharda Talkies (Firm) and another v.
Smt.Madhulata Vyas and others, AIR 1996 Madhya Pradesh 68 to
urge that where an admission is made in the written statement, then
the absence of primary evidence would not mitigate against filing of a
R.S.A.No.119 of 1982 (O&M) : 33 :
suit on the ground that primary evidence was missing. This was a
case where evidence proving that the amount was paid to the plaintiff
under a cheque was admitted in the written statement and it was said
that in the absence of primary evidence, i.e., the cheque, no reliance
could be placed on the evidence. The court had observed that
cheque might have been the primary evidence but the issue
between the parties was in relation to the payment. Once the
defendant had admitted the payment, the absence of the cheque was
held, would not mitigate against the filing of the suit. The contention
as being raised again apparently is not attracted to the facts of the
present case. Here it has not been admitted that plaintiff was
adopted as is being construed by the learned counsel. In this regard,
the absence of adoption deed or the proof in regard thereto would,
thus, be material.
Much emphasis was then made by the learned counsel
for the appellant that the adoption deed being of the year 1936 is a
30 years old document and as such as per Section 90 of the
Evidence Act, presumption in regard to genuineness thereof is
required to be made. In this regard, the counsel has placed reliance
on Sri Lakhi Baruah and others v. Sri Pama Kanta Kalita and others,
AIR 1996 Supreme Court 1253. No doubt, Section 90 of the
Evidence Act is founded on necessity and convenience because it is
otherwise difficult and sometimes not possible to lead evidence to
prove handwriting, signature or execution of old documents after
lapse of thirty years. The presumption that can be drawn relates to
execution of the document that is its signatures, attestation etc. but
not to the truth of its contents. Party wishing to rely on this section
R.S.A.No.119 of 1982 (O&M) : 34 :
has also to show that it has come from proper custody. Even when it
is so shown, still it is for the court to draw presumption or require the
proof of its execution. In other words, the courts have a discretion not
to admit document without formal proof. The rule of presumption is to
be applied with great caution and where circumstances throw
suspicion on genuineness of document, no presumption under
Section 90 can be drawn. Court has even a discretion not to admit
document without formal proof. There are more than one reason to
doubt the genuineness of the document, which may require the
appellant to formally prove the document instead of seeking support
from Section 90. Even the appellant or his real father has taken a
different stand at different times. No such plea was ever raised
before the trial court or lower Appellate Court. Mere fact that
document is 30 years old would not make it admissible without proof
under Section 90 of the Evidence Act. It is to be noted that the
presumption under the section is rebuttable presumption. This
presumption of due execution is liable to be rebutted by proof of
suspicious circumstances and if these are created on record, the
propounder is bound to remove them. Where document contains
incorrect and to an extent unnatural details and witnesses are found
changing stand from time to time, the document can be doubted to
be genuine.
In Sri Lakhi Baruah’s case (supra), it has also been
observed by the Hon’ble Supreme Court that presumption that arises
under Section 90 does not apply to a copy or a certified copy even
though thirty years old though presumption can so arise in regard to
a copy or certified copy thereof if foundation is laid for admission of
R.S.A.No.119 of 1982 (O&M) : 35 :
secondary evidence under Section 63 of the Evidence Act. Apart
from admission, if any, incorporated in the certificate issued by
Registrar, there has to be evidence to corroborate admission. Mere
permission to lead secondary evidence would not dispense the
appellant to prove the contents thereof, its existence and execution.
It is further to be shown that copy has come from proper custody.
The question of drawing presumption from a copy, as such, can arise
only if it is proved to be executed by the executant. This piece of
document has not been exhibited on record as a secondary
evidence, which could have then entitled the appellant to ask for any
presumption. Even if presumption is drawn, it would not amount to
proving the contents of the document to be true. This has been found
to be containing details which are contrary to the pleas raised in the
suit. In fact, in the absence of the document having been exhibited,
the same is not such an evidence which can validly be taken into
consideration. Perhaps realising this difficulty only, the counsel for
the appellant has made laborious efforts to show that the adoption
deed was admitted so that the requirement of the proof of the same
or contents thereof are dispensed with on this ground.
The proof of contents of a document may either be
proved by primary or secondary evidence. The primary evidence
means the document itself produced for inspection of the court,
whereas secondary evidence is defined under Section 63 of the
Evidence Act. Concededly the document in original has not been
produced and as such primary evidence is not forthcoming to prove
the contents of the adoption deed. Even mere marking of a
document as an exhibit, which is even not the case in hand, does not
R.S.A.No.119 of 1982 (O&M) : 36 :
dispense with its proof. In this regard Sait Tarajee Khimchand and
others v. Yelamarti Satyam & others,i AIR 1971 SC 1865 may be
referred. There is, thus, no valid case made out by the appellant for
placing reliance on the adoption deed either on the ground that it is
proved or admitted or on the ground that it is a secondary evidence
and presumption would arise about it under Section 90 of the
Evidence Act. Otherwise also, the adoption deed has been analysed
on the basis of contents thereof and evidence led in this regard to
show that it certainly does not reflect the correct state of affairs. The
possibility as such cannot be ruled out that this document had been
subsequently prepared or fabricated by the father of the appellant as
is the allegation of the respondent-defendants. There is no evidence
available on record to prove the contents of the document by proving
signatures/thumb-mark of Ganda Singh on this document. As such
the document was not rightly exhibited. There is no reliable evidence
on record to show that this document was ever thumb marked by
Ganda Singh. This document can not be treated as valid evidence in
the eyes of law which would require consideration.
Both the courts on the basis of evidence led and the
material placed on record came to conclude that adoption deed was
not worthy of acceptance as the contents contained therein were not
found to be factually true or proved by the appellant-plaintiff. The trial
court in this regard found holes in the recital as contained in the
adoption deed. Concededly, the appellant-plaintiff was born on
19.11.1919 and as per the version given by the witnesses, he was
adopted by Ganda Singh sometimes in early 1920. Reference is then
made to the version of Gurbachan Singh (PW-1), father of the
R.S.A.No.119 of 1982 (O&M) : 37 :
appellant-plaintiff, who stated that Shamsher Singh was brought up,
educated and married by Ganda Singh. As per PW-1, Shamsher
Singh was married before going to Pakistan. There is an evidence
through Amar Chand (PW-5) that Shamsher Singh was married 30-
35 years before while he appeared as a witness in the court in the
year 1997. Thus, the marriage of Shamsher Singh could be fixed to
some where 1942. This may not be definite but certainly not
anywhere near 1936, which was the date on which this adoption
deed was prepared. It is mentioned in the adoption deed, which was
executed In the year 1936, that Ganda Singh had already performed
the marriage of Shamsher Singh. This fact, as such, cannot be
reconciled in the evidence given by this witness and the fact that
Amar Singh died in 1942 and thereafter Ganda Singh allegedly took
Shamsher Singh along with him to Pakistan. This would also make
the marriage date to be somewhere in the year 1942. As already
noticed, Harnam Singh has been referred to as a real brother of
Ganda Singh in the adoption deed, which fact is also not correct as
he is collateral and cousin of Ganda Singh. As per the evidence,
marriage of Karam Kaur daughter of Harnam Singh was performed
by him, i.e., Harnam Singh, whereas in the adoption deed it is stated
that Karam Kaur was treated like a daughter and was married by
Ganda Singh. All these wrong facts, which have been mentioned in
the adoption deed, would tend to show that this deed was in fact
prepared to show only the adoption which may not be valid.
There apparently was no need to prepare an adoption
deed in the year 1936, i.e., when the appellant-plaintiff was married
and was 17 years old, whereas adoption had taken place in the year
R.S.A.No.119 of 1982 (O&M) : 38 :
1920. The trial court has also validly noticed this fact that the person
responsible for executing the adoption deed perhaps was aware of
the legal position that no stranger could be adopted by Ganda Singh
and that is why Karam Kaur has been shown as daughter of Ganda
Singh, whose marriage was also statedly performed by Ganda Singh
as per the adoption deed, which is factually found
inaccurate/incorrect. Even the evidence of PW-8 can be referred to
say that the marriage of plaintiff-appellant Shamsher Singh took
place somewhere in the year 1940 or thereafter. According to PW-8,
plaintiff was married 4-5 years after he stopped his studies and
according to Exh.D2, plaintiff was in school upto 31.3.1936. Thus, his
marriage, according to PW-8, was performed somewhere in the year
1940 or thereafter. Obviously, he was not married when the adoption
deed was executed in the year 1936. This would cast another doubt
in regard to validity of this adoption deed. Finding these infirmities in
the recital of the adoption deed, courts below have rightly come to
the conclusion that this deed was prepared with a calculated attempt
to show the adoption to be valid one. Thus, the evidence of the
witnesses while giving oral account about the adoption of appellant-
plaintiff, in my view, was rightly disbelieved.
The respondent-defendants also referred to provisions of
customary law to urge that a sonless proprietor of a land may appoint
one of his kinsman to succeed him as his heir. The trial court had
made reference to para 35 of Rattigans Digest of Customary Law,
which provides “a sonless proprietor of land in Central and Eastern
parts of Punjab may appoint one of his kinsman to succeed him as
his heir”. On this basis, it was urged that appellant-plaintiff is not the
R.S.A.No.119 of 1982 (O&M) : 39 :
kinsman of Ganda Singh being son of Karam Kaur daughter of
Harnam Singh, who was cousin of Ganda Singh. He was accordingly
found stranger to Ganda Singh. The custom, as noticed above, was
referred to point out that only a heir could be appointed and no
stranger, thus, could be adopted. According to the respondent-
defendants, the appellant-plaintiff could not even be appointed as a
heir. Instead of meeting this legal position, the counsel for the
appellant tried to make a capital out of some observations made by
the lower Appellate court in this regard. Reference is invited to para
20 of the judgment where it is recorded by the lower Appellate Court
that even if it is assumed that there was an adoption, it was under
custom and not under Hindu Law. The counsel would say that this
would be enough to allow the appeal as the Appellant Court gave a
finding that adoption was there. This approach of relying on some
observations which are only made to bring home the correct legal
position for argument’s sake cannot be read to hold in favour of the
appellant-plaintiff. The lower Appellate Court went on to observe that
the adoption even if be there was nothing more than an appointment
of an heir by a sonless proprietor and it created no more than
personal relationship between the appointor and the appointed heir.
It is to be noted that both the courts below have
concurrently held that valid adoption of Shamsher Singh by Ganda
Singh is not established. Accordingly, to a custom, adoption of
daughter’s son was not permissible and it has been urged that even
adoption would be invalid on this count. As held in Kehar Singh v.
Dewan Singh, AIR 1966 SC 1555 a customary adoption in Punjab is
ordinarily no more than a mere appointment of an heir creating a
R.S.A.No.119 of 1982 (O&M) : 40 :
personal relationship between the adoptive father and the appointed
heir only. The general custom negativing the right of the appointed
heir to succeed collaterally in the family of adopted father is stated in
Art.49 of Rattigan’s Digest as per which relationship is purely
personal one. In Kehar Singh’s case (supra), the Hon’ble Supreme
Court has taken note of Riwaj-i-am recognising the adopted son’s
right to collateral succession in adoptive father’s family should be
taken to apply to cases of customary formal adoption and not to
cases of adoption by way of customary appointment of heirs. It is a
question of fact in each case whether the adoption by a Jat is formal
or informal. The adoption is stated to be formal if the parties manifest
a clear intention that there should be a complete change of the
family of the adopted son, so that he cases to be a member of his
natural family and loses his right of collateral succession in that
family and at the same time becomes member of the adoptive
father’s family and acquires a right of collateral succession in the
family. It has been found a fact that the late appellant Shamsher
Singh could not succeed in showing a clear intention that there was
a complete change of family. Appellant was continuously shown as
son of his natural father in the records which would rather indicate
that the parties did not manifest any intention of change in the family
of appellant. It is in the background of this legal position that the
Appellate Court has observed that even if some adoption is noticed
as having been carried out, it will be only informal and would not lead
to a position that appellant was transformed to the adoptive family.
The legal position that would emerge from the custom as
noticed above, would appear to be so. It has rightly been urged by
R.S.A.No.119 of 1982 (O&M) : 41 :
the counsel for the respondent-defendants that even it be conceded,
only for the sake of argument that adoption of Shamsher Singh is
somehow seen, then it is informal and under customary law and he
would not become a son of Sham Kaur and Ganda Singh and it will
only create a personal relationship between Ganda Singh and
Shamsher Singh, the latter having been appointed as an heir and
nothing more. No efforts were made to show that the adoption was
formal and manifested by prior or subsequent intention. Rather the
case set up in the plaint is that appellant-plaintiff was adopted as per
the customs and as such this would only mean an appointment of an
heir by sonless proprietor and thus it only created a personal
relationship between the appointor and the appointed heir. The
Appellate Court has thus rightly observed that such an appointment
did not bring about transplantation of Shamsher Singh into the family
from the family of his birth to the adopted family. Reliance in this
regard is made on Niranjan Singh Vs. Kishan Singh alias Kishna,
1967 Current Law Journal 387. In this case, it was observed that in
the absence of cogent evidence relating to observance of formalities
of adoption, it is to be presumed that adoption is no more than mere
appointment of an heir creating personal relationship between the
appointor and the appointee where the parties are governed by the
agricultural customs in the State of Punjab. It is further observed that
such a position could neither establish the tie of kinship between the
appointed heir and the appointor nor has the effect of transplantation
of the appointee in the adopted family resulting in complete and
absolute severance of appointee’s relations with his natural family
unless a special custom to the contrary is proved to exist either in the
R.S.A.No.119 of 1982 (O&M) : 42 :
particular tribe in a given district or in the particular family of the
parties. Reference in this regard can also be made to Kehar Singh’s
case (supra). It was neither shown from the evidence nor was so
pleaded before me that this was a case of formal adoption where
there was complete transplantation.
The lower Appellate Court has further gone on to observe
that the manner of adoption otherwise would not make any material
difference in this case. It is noticed as a fact that after death of
Ganda Singh, the property devolved upon his widow Sham Kaur. He
would be entitled to succeed to the property of Sham Kaur as an heir
if he has been transplanted as a son of Ganda Singh and Sham
Kaur. As already held, the manner of adoption at the maximum even
if taken for the sake of arguments, would prove only to show that
appellant-plaintiff was only appointed as an heir and was not and
cannot even be treated as an adopted son. It has further been
observed that the appellant-plaintiff, being a son of the daughter of
the cousin of Ganda Singh, could not be appointed as an heir being
not a kinsman, who only could succeed him as per the custom and
could be so appointed as an heir. Legally, thus, there was a doubt in
regard to the validity of the appellant being appointed as an heir as
per the customary law and even if it was so, it would only go to create
a personal relationship and thus he would not be entitled to succeed
to the property of Sham Kaur as a son.
The appellant-plaintiff has relied on some entries of
mutation made in his name of a land at village Sukhgarh. Some land
in this village was mutated in the names of Sham Kaur and
Shamsher Singh, both as heirs of Ganda Singh. This has been
R.S.A.No.119 of 1982 (O&M) : 43 :
referred to as an admission which is thus highlighted by the counsel
for the appellant to say that the adoption of the appellant-plaintiff
would stand established from this fact. Exh.D5 is an extract from the
register of mutation, which contains an endorsement by Assistant
Collector IInd Grade. It is not understood as to how this is being
referred to as an admission by Sham Kaur. It is only an entry
containing a mention by revenue official at the time of mutation in his
own words. It was rightly observed by both the courts below that an
admission can be considered as such when the whole context is
before the court so that it can be seen as to under what
circumstances such a statement was made. Ishar Dass Vs. Arjan
Singh and others, 1996 Current Law Journal 537 can be referred to
in this regard. Moreover, this entry cannot be treated as an
admission made by Ganda Singh though he lived for 12 years after
the execution of the deed dated 14.11.1936. The lower Appellate
Court has with justification referred to the law laid down in Kishori Lal
Vs. Mst.Chalti Bai, AIR 1959 Supreme Court 504 to say that the
admission made by Hindu widow surrounded by members of family,
whose interest it was to foist an adoption on her will necessarily carry
very little weight. As observed, when adoption itself is not proved as
a fact, no value can be attached to admission contained in mutation
or written statement. The pedigree entries showing Shamsher Singh
to be adopted son of Ganda Singh is only a record prepared by the
revenue authorities without much basis, which can not be considered
as a valid evidence. The stand taken by father of appellant-plaintiff
Gurbachan Singh which has been noticed in detail in the foregoing
paragraphs can also not be ignored. As already noticed, Gurbachan
R.S.A.No.119 of 1982 (O&M) : 44 :
Singh (PW-1), natural father of the appellant denied the adoption of
Shamsher Singh and in this background the observations of the
courts below that Sham Kaur agreed to the so called adoption earlier
only when Basant Kaur and Baljit Kaur went into litigation against
her and was for her self protection can well be noticed as valid
explanation to explain this so called admission. This admission, as
such, can easily be ignored as has been done by the courts below.
Before concluding, two aspects of the case would need
attention. The counsel for the appellant has pleaded that his
application for additional evidence was not considered and this would
be sufficient ground to interfere in the order passed by the lower
Appellate Court. It may be noticed that the appellant had made an
application for permission to adduce additional evidence under Order
41 Rule 27 CPC to produce a copy of the judgment passed by Senior
Sub Judge, Ambala on 31.10.1952 dismissing the suit of Basant
Kaur and Baljti Kaur for possession of a land. The lower Appellate
Court considered this application and came to the conclusion that
this judgment is not relevant for deciding the controversy in the
present case. As observed by the lower Appellate Court, the question
involved in the instant case was to see as to who would succeed
Sham Kaur, i.e., whether plaintiff or Basant Kaur and Baljit Kaur and
as such the judgment rendered by Senior Sub Judge, Ambala would
not have much relevancy in this regard. The copy of this judgment
was otherwise placed before me and perusal thereof would show that
the suit was dismissed when the plaintiff therein refused to amend
the plaint to restrict their claim to the property situated in District
Ambala. There was no adjudication on merits. Even otherwise, the
R.S.A.No.119 of 1982 (O&M) : 45 :
counsel could not show if the plaintiff had made out a case for
leading additional evidence at the appellate stage. It can not be said
that the application for additional evidence was not considered by the
Appellate Court.
Another application has been moved by Gursharan Kaur
for being impleaded as a party. At this stage, it is too late for any
body for being impleaded as a party. Even otherwise, the rights of
the respondents flow in terms of the provisions contained in the
Succession Act. Applicant has not been able to show if she is a
necessary or proper party. The applicant would have to seek her
right, if any, not through the present litigation, but through a remedy if
she otherwise has any. I am, thus, not inclined to accept this
application and the same is also dismissed.
It may require a notice that no substantial question of law
was mooted by the appellant. Since certain substantial questions of
law do arise in this case regarding admissibility of evidence, adoption
deed and customary law, the appeal would not be liable to be
dismissed on that count.
It is required to be noticed that the appellant-plaintiff
asserted his right as an adopted son for the first time when he filed a
suit in the year 1958. This was after ten years of the death of Ganda
Singh, his alleged adopted father. Why would he wait for ten years
and allow the property to be mutated in the name of Sham Kaur
cannot easily be explained. He still did not succeed and thereafter
did not pursue the matter. Subsequently, he has filed this suit in the
year 1976. Why did he wait for 1958 to 1976 to file the present suit?
In the initial suit filed by him in the year 1958, his natural father filed a
R.S.A.No.119 of 1982 (O&M) : 46 :
written statement on behalf of Sham Kaur to say that the adoption
never took place. All these issues have been properly discussed and
adjudicated by the courts below. I do not find any legal infirmity in any
of the findings recorded by the lower Appellate Court. Findings of the
trial court on issue Nos.8 and 11 have been correctly reversed. Even
otherwise, no submissions were made before me on the remaining
issues and accordingly the findings on all these issues as given by
the lower appellate Court would stand affirmed.
As a result thereof, the present appeal is found
without merit and is dismissed.
July 2, 2008 ( RANJIT SINGH ) ramesh JUDGE