Sukhwinder Singh Etc. v. Gurcharan Singh Etc.

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Date of Order:16th October, 2018 Sukhwinder Singh and others ..Appellants

Versus

Gurcharan Singh and another ..Respondents

(2) RSA No.5 of 2005 (O&M) Bujha Singh ..Appellant

Versus

Gurcharan Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. Harsh Bunger, Advocate, for the appellants (in RSA No.1072 of 2004) Mr. Sunny Deep Joneja, Advocate, for the appellant (in RSA No.5 of 2005) Mr. S.S.Siao, Advocate, for respondent no.1.

ANIL KSHETARPAL, J.

This judgment shall disposed of Regular Second Appeal No.1072 of 2004 and Regular Second Appeal No.5 of 2005 as both the judgments are arising from a single suit decided by the learned trial court as well as by the learned first appellate court by a common judgment. Separate defendants have filed these two separate appeals against the concurrent findings of fact arrived at by the courts below.

-2A family feud has resulted into this litigation. Plaintiffrespondent who is natural son of Chanan Kaur, sister of Bujha Singhdefendant no.5, has filed a suit for joint possession and declaration, claiming that he was adopted by Bujha Singh when he was studying in 4th class as his natural father Chanchal Singh had already died. Bujha Singh was unmarried, therefore, it is claimed that he adopted plaintiff as a son. It may be noted here that on 28.09.1971, a registered deed was executed which acknowledged that the adoption took place when the plaintiff was child. It may further be noticed here that defendants no.1 to 4 are grand sons of Ujagar Singh who was brother of Bujha Singh. A sale deed executed by Bujha Singh on 17.12.1996 registered on 18.12.

1996 is subject matter of challenge in the present suit as the aforesaid property is claimed to be Joint Hindu Family Ancestral Coparcenary property. Stand of defendant nos.1 to 4, who are appellants in RSA No.1072 of 2004 is to the effect that Bujha Singh never adopted the plaintiff and it has been pleaded that Bujha Singh entered into an agreement to sell with Sukhwinder Singh, defendant no.1 on 15.05.1996 and received a sum of Rs.1,00,000/- as earnest money. Bujha Singh, who is defendant no.5, has also denied the adoption of plaintiff.

Both the courts below after appreciating the evidence decreed the suit filed by the plaintiff after recording a finding that the adoption of plaintiff by Bujha Singh is proved as it has been acknowledged by a registered document executed on 28.09.1971, registered on 29.09.1971. The courts have further found that a revenue official has proved that the property is Joint Hindu Family Ancestral Property and, therefore, Bujha Singh had no right to sell the property without legal necessity. In fact, it has

-3been found by both the courts below that the sale deed is a sham transaction as it is between the close relatives and no payment of sale consideration is proved.

This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.

Learned counsel appearing for the appellant has submitted that the deed of adoption dated 28.09.1971 is not signed by Chanan Kaur, the natural mother. Only photocopy of the revenue record was produced, whereas as per the High Court Rules and Orders, original record is to be produced for proving the excerpt prepared by the revenue officials. Custom to the effect that adoption of a child beyond the age of 15 years was permissible, was required to be pleaded and proved. In the passport name of natural father and mother has been recorded and, therefore, the factum of adoption is not proved.

On the other hand, learned counsel for the respondent-plaintiff has submitted that adoption had taken place when the plaintiff-respondent was a child studying in 4th class. He has read over the registered document dated 28.09.97 wherein this fact is specifically recorded. Hence, he submitted that the registered document dated 28.09.197 is only acknowledging the adoption which has already taken place. He further submitted that natural father of the plaintiff-respondent died when he was 11⁄2 months' old. His natural mother was sister of Bujha Singh-defendant no.5. Since, Bujha Singh was unmarried, therefore, he adopted the plaintiff. He further drew attention of the court to the effect that Bujha Singh had also executed a General Power of Attorney in favour of the plaintiff-respondent

-4who in turn thereafter executed a sale deed with regard to some land in favour of his wife which resulted into a suit filed by Bujha Singh in which compromise took place and 1⁄2 of the property was re-entered in the name of Bujha Singh, whereas remaining half remained with the plaintiff's family. He further submitted that Bujha Singh had also executed a sale deed in favour of children of the plaintiff-respondent. This court has considered the submissions and analyzed the evidence. No doubt, document dated 28.09.1971 is not signed by Chanan Kaur. However, it is not a deed of adoption. It is only a memorandum of adoption which took place when the plaintiff-respondent was a child. Hence, the document was not required to be signed by Chanan Kaur.

Once that is a factual position, the pleadings of custom and proof thereof become insignificant. However, it may be noticed that in the plaint, plaintiff has specifically pleaded this fact and custom amongst Jatts in the State of Punjab permitting adoption of children beyond the age of 15 including married one is well recognized by judicial precedent. Reference in this regard can be made to the judgment passed by the court in the case of Amar Singh vs. Tej Ram, 1982 PLR 237. This judgment has been followed by the court in subsequent judgments i.e. in the case of Mohar Ram vs. Bhim Singh, 2018(1) PLR 519 and Sube Singh vs. Parveen @ Manjeet and others. 2017(3) R.C.R.(Civil) 1022. Hence, this court does not find any substance in the argument of learned counsel for the appellant on first two submissions.

The next argument of learned counsel is that with a view to prove the ancestral nature of the property, only photocopy of the record has been produced. It may be noted that Atma Nath, a revenue official had

-5prepared excerpt as provided under the High Court Rules and Orders. He produced the same on 16.02.2000 while appearing in the evidence. Atma Nath was examined in evidence. Opportunity was given to the defendants to cross-examine to the learned counsel for the defendants. The evidence of the revenue official is categoric and prove that the property was Joint Hindu Family Ancestral Property. Still further, the argument of learned counsel for the appellant that only photocopy has been produced is factually incorrect. Sh. Atma Nath has only stated that along with the excerpt he has attached the revenue record and other documents which are photostat from the original and the same is attested by him. It is nowhere suggested to the revenue official that he has not brought the original record at the time his evidence was recorded.

In fact, learned counsel for the defendant has not really cross-examined the aforesaid witness properly. Except while giving suggestion to the effect that excerpt is wrong, attention of the witness has not been drawn to the excerpt produced and there is no challenge in the cross-examination to various entries which have been made on the basis of the revenue record.

Although, no argument has been addressed by learned counsel for the appellant on the validity of the sale deed executed by Bujha Singh in their favour, however, this court as well as both the courts below have found that the aforesaid sale deed was a sham transaction. Bujha Singh and defendants no.1 to 4 were closely related and courts have correctly found that defendants no.1 to 4 misused their position by creating a rift between father and adopted son. Both the courts have found that payment of the sale consideration is not proved. Total sale consideration was Rs.2,00,000/- but not a single penny was paid before the Sub-Registrar. Although, it is the

-6case of the defendants that Rs.1,00,000/- was paid at the time of entering into an agreement to sell and the remaining amount was paid when the sale deed was registered but it is surprising that no payment was paid before the Sub-Registrar.

In view of the aforesaid discussion, this court does not find any substance in both the regular second appeals. Hence, both the regular second appeals are dismissed.

16th October, 2018 (ANIL KSHETARPAL) nt JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No