Miss Kamla Kumari vs Shri Ved Prakash Gupta
2011 Latest Caselaw 1148 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 22.02.2011
                   Judgment Delivered on: 25.02.2011

+            RSA No.236/2004

MISS KAMLA KUMARI                               ...........Appellant
             Through:         Mr. S.P. Jha, Advocates

                   Versus

SHRI VED PRAKASH GUPTA                          ..........Respondent
              Through: None

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?             Yes

  3. Whether the judgment should be reported in the Digest?
                                                       Yes
INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

08.04.2004 which had endorsed the findings of the trial Judge

dated 27.01.2003 whereby the suit filed by the plaintiff Kamla

Kumari Gupta seeking a declaration to the effect that she is the

legally adopted daughter of late Sh. Joginder Nath Gupta had been

dismissed.

2 The plaintiff had averred that she is the adopted daughter of

Sh. Joginder Nath Gupta. She was residing with him till the time of

his death. They were residing in property bearing No. R-705 B,

New Rajinder Nagar, New Delhi. The defendant Ved Prakash

Gupta was the son of late Sh. Joginder Nath Gupta. The plaintiff

was adopted by the deceased and all necessary ceremonies

required for adoption had been performed on 10.06.1976. The

Pandit performing the ceremonies of adoption was Pandit Durga

Das. A document to the said effect had also been prepared. The

plaintiff was recognized as the daughter of late Sh. Joginder Nath

Gupta. He was a store keeper in „COD‟, Delhi Cantt. He had written

a letter to his Department recommending the name of the plaintiff

for a job. The defendant had applied for succession certificate qua

the properties of his deceased father; plaintiff had filed objections.

3 In the written statement it was denied that the plaintiff was

the adopted daughter of deceased Joginder Nath Gupta. It was

stated that the deceased was neither competent to take the

plaintiff in adoption nor was she adopted.

4 On the pleadings of the parties, the following six issues were

framed:-

"1. Whether the plaintiff has no locus standi or cause of action and therefore suit is not maintainable? OPD.

2. Whether there is bar under Sections 10 and 11 of the Hindu Adoption and Maintenance Act in adopting the plaintiff as daughter? OPD.

3 Whether the present suit for declaration is barred under Section 34 of the Specific Relief Act? OPD 4 Whether the plaintiff is the legally adopted daughter of late Sh Joginder Nath Gupta and had been living with deceased till his death as pleaded in para 1 of the plaint? OPP 5 Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP.

      6      Relief. "



5     Oral and documentary evidence had been led before the trial

court. Four witnesses were examined on behalf of the plaintiff

which included the plaintiff herself who was examined as PW-1.

The Pandit who performed the adoption ceremonies was examined

as PW-4. Three witnesses had been examined on behalf of the

defendant which included the defendant himself who was examined

as DW-1. Sections 10 & 11 of the Hindu Adoptions and

Maintenance Act, 1956 (hereinafter referred to as the „said Act‟)

had been adhered to; being mandatory a person more than 15

years of age could not be taken in adoption unless there was

custom to the contrary which custom was neither pleaded nor

proved. Suit was accordingly dismissed.

6 The first appellate court had reaffirmed this finding.

7 This is a second appeal. After its admission on 21.02.2011,

the following substantial question of law was formulated:-

"Whether the finding in the impugned judgment dated 08.04.2004 dismissing the suit of the plaintiff qua his pleading that the plaintiff is not the legally adopted daughter of late Sh. Joginder Nath Gupta is a perverse finding? If so, its effect?"

8 On behalf of the appellant, it has been urged that the

findings of the two courts below are perverse; plaintiff was

admittedly 30-31 years of age at the time of her adoption on

10.06.1976 yet the custom prevailing in their community permitted

such an adoption; the parties were of the „Vaish‟ community and

there was no bar of age. The adoption ceremony had been proved

through the version of Pandit PW-4. Under Section 57 of the Indian

Evidence Act, 1872, judicial notice can be taken of admitted facts;

a custom prevailing in the community of the plaintiff permitting

adoption of person of more than 15 years of age did not necessarily

have to be either pleaded or proved. For these propositions,

reliance has been placed on AIR 1991 SC 1180 Kondiba Rama

Papal Vs. Narayan Kondiba Papal to substantiate this submission

that once a custom is judicially recognized, it is not required to be

independently proved. Reliance has been placed upon AIR 1959 SC

1041 Ujagar Singh Vs. Mst. Jeo; it is submitted that under Section

57 of the Evidence Act nothing need be proved of which judicial

notice can be taken by the Court. In the instant case, the custom

prevailing in the „Vaish‟ community permitted the plaintiff to be

taken in adoption. Reliance has also been placed on JT 2010 (12)

SC 441 Atluru Brahmanandam Vs. Anne Sai Bapuji to support the

same submission. Reliance has also been placed upon a judgment

of the Andhra Pradesh High Court reported in AIR 1994 AP 134

Jupudi Venkata Vijaya Bhaskar Vs. Jupudi Kesava Rao & Others

which had been upheld in appeal by the Supreme Court in AIR

2003 SC 3314.

9     None has appeared for the respondent.

10    Perusal of the record shows that the testimony of witnesses

of the plaintiff and the defendant had been scrutinized in detail as

also the mandate of the provisions of the Act of 1956. The Court

had returned a finding that there was no evidence on record either

oral or documentary to substantiate the averment that there was

any custom in the family of the plaintiff which permitted adoption

of a person more than 15 years of age. PW-4 Pandit had come into

witness box but had nowhere deposed that there was any custom in

the family of the parties which permitted such an adoption;

adoption deed (Ex. PW-4/1) which has been specifically averred to

by the plaintiff had also not been proved; only a photocopy of the

said document had been placed on record; the Court had

disregarded this document for another reason also that neither was

it registered & nor attested by any independent witness. In para 15

of the judgment of the trial court, it had been noted that the

daughter of the deceased Joginder Nath Gupta was admittedly

alive when the adoption took place on 10.06.1976 which was also a

bar for a legal valid adoption under provisions of the said Act of

1956. Suit of the plaintiff had been dismissed.

11 The first appellate court had re-appreciated the evidence

both oral and documentary and arrived at the same finding. In the

impugned judgment, it had been noted that the appellant/ plaintiff

had failed to prove the existence of any custom in his family or in

the family of the deceased Joginder Nath Gupta whereby a person

over and above age of 15 years could be adopted.

The Act of 1956 had been promulgated to amend and codify

the law relating to adoptions and maintenance among Hindus.

Admittedly the parties are Hindus in this case.

Chapter II deals with adoption.

Under Section 5 no adoption shall be made except in

accordance with the provisions of this Chapter; adoption contrary

to the said Chapter would be void.

The requisites of a valid adoption are contained in Section 6.

The person adopting must necessarily have the capacity to adopt;

further the person adopted must be capable of being taken in

adoption.

Under Section 10 no person shall be capable of being taken

in adoption when the 4 conditions contained therein are fulfilled.

Clause (iv) reads as under:-

"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 "

Section 11 stipulates the other conditions for a valid

adoption. Clause (ii) reads as under:-

"if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son‟s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption."

12 Admittedly on 10.07.1976 i.e. on the date of the alleged

adoption, the deceased Joginder Nath Gupta had a daughter living.

This has been recorded in para 15 of the judgment of the trial

court. Section 11 (vi) thus stood violated.

13 The plaintiff was aged 30-31 years on the date of her alleged

adoption. She had neither pleaded nor proved that there was any

custom which permitted her adoption i.e. adoption of a person of

more than 15 years. Categorically findings were returned by the

two courts below that these provisions being mandatory and not

having been adhered to, such an alleged adoption in view of these

mandatory provisions was void. The onus was upon the plaintiff to

establish a local or family custom validating such an adoption. She

had come into the witness box as PW-3; Pandit who had performed

the ceremonies had been examined as PW-4. Neither of them had

whispered a word on this count.

14 The judgments relied upon by the learned counsel for the

appellant do not come to her aid. In Kondiba Rama Papal (Supra),

the Supreme Court had recognized the fact that once a custom

permitting adoption of a child as prevailing in the Bombay State, it

was not required to be proved in a subsequent case. In the present

case, there was no such recognized custom; as already noted this

submission was also not pleaded. The ratio of Ujagar Singh (Supra)

is that judicial notice can be taken of such a custom which is

recognized. The judgment of Atluri Brahmanandam (Supra) is also

on the same ratio. The judgment of Jupudi Venkata Vijaya Bhaskar

(Supra) had relied upon an adoption agreement which was held to

be valid and binding inter-se between the parties; further in the

„Vaish‟ community custom permitted adoption of a boy of above

age of 15 years. It was never the plea of the plaintiff that she is of

the Vaish Community which argument has now been urged. Before

the Supreme Court, this judgment was assailed but in para 3, the

Supreme Court had noted that the invalidity of adoption under

Clause IV of Section 10 of the said Act of 1956 had not been

challenged.

15 The findings in the impugned judgment call for no

interference. The plaintiff being more than 15 years of age had to

cross the hurdle of Section 10 of the said Act of 1956 before she

could claim a valid adoption. There was no averment in the plaint

that there was any custom prevailing amongst the family of the

plaintiff or in the family of deceased Joginder Nath Gupta which

enabled him to adopt a person more than 15 years of age. Neither

had this been pleaded nor proved. The capacity of deceased

Joginder Nath Gupta to adopt was also vitiated in view of the fact

that he had a living daughter at the time of alleged adoption. There

was a bar under Section 11 (ii) of the said Act. The photocopy of

the adoption deed Ex. PW-4/1 had not been proved; it was neither

attested nor registered; the original of the same had not been

produced. There is no merit in the appeal.

16    Dismissed.




                                               INDERMEET KAUR, J.

25 FEBRUARY, 2011
A