R.L. Anand, J.
1. Shri Rajpal Singh claiming himself to be adopted son of Shri Gurbachan Singh, resident of Village Sanghol, Tehsil Samrala, District Ludhiana, has filed the present regular second appeal and it has been directed against the judgment and decree dated 23.10.1999 passed by the Court of Additional District Judge, Fatehpur Sahib who affirmed the judgment and decree dated 31.1995, passed by the Court of Additional Senior Sub Judge, Fatehgarh Sahib who dismissed the suit of the plaintiff-appellant as prayed for.
2. Rajpal Singh, present appellant, filed a suit for declaration to the effect that he was the owner of the land measuring 129 Kanals 7 Marias, situated in Village Sanghol and one house as detailed in the head note of the plaint.
3. The case set up by the plaintiff in the Trial Court was that Shri Bur Singh formed a joint Hindu family with his two sons Gurbachan Singh and Labh Singh. Bur Singh owned agricultural and other immovable property in Village Gojra, District Sialkot in Pakistan. On the death of Shri Bur Singh, the property held by him devolved upon his two sons. They migrated from Pakistan and Shri Gurbachan Singh was allotted the property in dispute in lieu of the property owned by him in Pakistan. It is further alleged that Shri Gurbachan Singh had no male issue. He had three daughters by the names of Charanjit Kaur, Joginder Kaur and Surinder Kaur who were already married and they were living comfortably in the houses of their husbands. Shri Gurbachan Singh was looked after and served by his nephew Manjit Singh and his family members, as a result of which Shri Gurbachan Singh had a great love and affection for the plaintiff who took birth in the house of Shri Manjit Singh. Amar Kaur, wife of Shri Gurbachan Singh had also died in the year 1973. Shri Gurbachan Singh was a man of sound mind and he had the capacity to form a rational judgment. He adopted plaintiff with the consent of the parents of the plaintiff by performing the necessary ceremonies. Essential ceremony of give and take was also adopted in the presence of the parents, relatives and other respectables. So much so shri Gurbachan executed a registered adoption deed which was registered on 16.10.1984. The effect of this document of adoption is that plaintiff will be deemed to have taken birth in the family of Shri Gurbachan Singh. In consideration of the gift of his son Rajpal Singh plaintiff by Manjit Singh and Beant Kaur in adoption, said Gurbachan Singh executed an agreement dated 16.10.1984, undertaking that he would not dispose of his property by transfer or by Will and that plaintiff will be the absolute owner of the property after his death. The original agreement is not traceable at present. Shri Gurbachan Singh died on 7.10.1987. After his death, his three daughters alleged Will dated 31.7.1985 executed by Gurbachan Singh in their favour though Shri Gurbachan Singh did not execute any Will in their favour. Even otherwise, the Will, if any, is surrounded by suspicious circumstances. Shri Gurbachan Singh was not in position to execute any Will on 31.7.1985 in view of the agreement dated 16.10.1984. The property was ancestral in the hands of Shri Gurbachan Singh and, therefore, no Will of the property could be executed by Gurbachan Singh in favour of the defendant. After the death of Shri Gurbachan Singh, Gurpreet Singh, defendant No. 4 in collusion with the revenue officials got false entries made in the Khasra Girdawari regarding possession and those entries are not binding upon the plaintiff. Defendant Nos. 1 and 3 on the basis of the Will dated 31.7.1985 intend to alienate the property and if they succeed in doing so, the plaintiff will suffer irreparable loss.
4. Notice of the suit was given to the defendants who filed a joint written statement and they took a preliminary objection that plaintiff is not in possession of that suit property; that suit is not maintainable; and that plaintiff has no locus standi to file the suit.
5. On merits, it was stated that Shri Gurbachan Singh had no male issue. He had only three daughters. In spite of the marriages of the daughters they had been residing with Shri Gurbachan Singh. Manjit Singh had been residing with his parents separately and never came to reside with Gurbachan Singh. Gurbachan Singh was looked after by his daughters only. No document was ever executed by Gurbachan Singh and if same is proved, it. is not valid in view of the provisions contained in Sections 6 and 11 of the Hindu Adoptions and Maintenance Act. The adoption deed seems to have been got prepared with malicious intention to grab the property of Gurbachan Singh. Even otherwise, the adoption deed is void in view of the provisions as contained in Section 17 of the Hindu Adoptions and Maintenance Act. Even on 31.7.1985, Shri Gurbachan Singh cancelled the illegal adoption deed by executing the document. On that very day, he executed the Will in favour of defendant Nos. 1 to 3 when he was in sound disposing mind for the service rendered by the daughters towards Gurbachan Singh.
6. The plaintiff filed a rejoinder to the written statement of the defendants in which he reiterated the allegations made in the plaint while denying those of the written statement and from the above pleadings of the parties, the Trial Court' framed the following issues :
(1) Whether plaintiff was adopted by Gurbachan Singh through registered adoption deed dated 16.5.1988 validly ?
(2) If Issue No. 1 is proved, whether plaintiff is owner of the suit ?
(3) Whether the plaintiff is entitled to possession of the suit property as alleged in the plaint ?
(4) Whether the plaintiff is entitled to the injunction prayed for ?
(5) Whether Gurbachan Singh executed a valid Will in favour of defendant Nos. 1 to 3 on 31.7.1985 ?
(6) Whether the suit is not maintainable in present form ?
(7) Whether the suit is properly valued for the purpose of Court-fee and jurisdiction ?
(8) Whether the plaintiff has no locus-standi to file the present suit ?
(8A) Whether the property in dispute was ancestral property in the hands of Gurbachan Singh qua plaintiff ?
(8B) If Issue No. 8A is proved, then whether Gurbachan Singh deceased was not competent to execute any Will regarding the ancestral property ?
7. Parties led oral as well as documentary evidence in support of their case and on the conclusion of the trial, Issue No. 1 was decided against the plaintiff. Issue Nos. 2, 3 and 4 were also decided against these plaintiffs. Issue No. 5 was decided in favour of the defendant by holding that Gurbachan Singh executed a Will in favour of defendant Nos. 1 to 3. Issue No. 6 was decided again against these plaintiffs. However, Issue No. 7 was decided against the defendants. Issue No. 8 was also decided in favour of the defendant. Issue No. 8-A was decided against the plaintiff. Issue No. 8-B was decided against the plaintiff and finally on the basis of Issue No. 1, which is the material issue in this case, the plaintiff was non-suited by the Trial Court vide judgment and decree dated 3.1.1995.
8. Aggrieved by the judgment and decree, Shri Rajpal Singh filed the appeal before the first Appellate Court, which for the reasons given in para No. 11 of its judgment dated 23.10.1999 dismissed the appeal.
9. The First Appellate Court also affirmed the findings of the Trial Court on Issue No. 5 and held that Shri Gurbachan Singh executed a valid Will in favour of his daughters. In this matter, the plaintiff is aggrieved by the judgment and decree of the Courts below and he has filed the present regular second appeal.
10. I have heard Mr. A.S. Cheema, Sr. Advocate, appearing on behalf of the appellant and with his assistance have gone through the file of this case.
11. I am of the considered opinion that this appeal deserves dismissal in limine for the following reasons.
12. Before, I deal with the submissions of the Counsel for the appellant, it will be proper for me to reproduce para No. 11 of the judgment of the First Appellate Court :
'The main point involved under this issue is, whether the appellant was legally adopted son of Gurbachan Singh since deceased. Although the learned Counsel for the appellant had proved the adoption deed Ex. P5 from these testimony of P.W. 5 Melu Ram Deed Writer, the Scribe of this deed, P.W. 6 Deena Nath one of the attesting witness to this deed, apart from this P.W. 9 Beant Kaur, the natural mother of the appellant, yet the real question arises, whether the appellant was actually adopted by Gurbachan Singh since deceased or this Adoption Deed Ex. P5 was a paper transaction.
Before adverting to other discussion under this issue, it is very interesting to note that Gurbachan Singh, the alleged adopted farther since deceased was 80 years of age, whereas the appellant was 4/5 years of age, when the alleged adoption took place. It is also an admitted fact that the wife of Gurbachan Singh since deceased Gurbachan Singh has three daughters who were married and this appellant was none else, but the son of the nephew of deceased Gurbachan Singh and this fact was also in the knowledge of Manjit Singh, the natural father of the appellant that all the three daughters of said Gurbachan Singh since deceased were married out of which two were married near Karnal (Haryana) and 3rd was married in District Gurdaspur. Firstly, why the grand old man of 80 years will adopt the minor child of 4/5 years when he knows that he had already played his innings and that there is no female to look after the child of 4/5 years old. Even if the version of the appellant is taken to be correct, which is actually not so, that Gurbachan Singh since deceased was living all alone and was looked after by Manjit Singh, natural father and Beant Kaur the natural mother of the appellant and also that Gurbachan Singh since deceased owned landed property also and in these circumstances, in order to grab the property of Gurbachan Singh since deceased, the natural parents of the appellant adopted this novel method of giving their only son, i.e. appellant in adoption to this grand old man Gurbachan Singh since deceased knowing fully well that he had no son and can exploit the sentiments if at all this adoption deed was challenged in a Court of law. It has been admitted by P.W. 10 Randhir Singh who is none else but the real brother of natural father of appellant that appellant was the only son of Manjit Singh natural father of the appellant when he was given in adoption because he had admitted that appellant had also one elder brother with, the name Amritpal Singh, but he was also given in adoption to Jagir Singh and that adoption was much prior to the birth of the appellant and this fact is admitted by P.W. 9 Beant Kaur the natural mother of the appellant that at the time of giving Amritpal Singh, his other son in adoption to Jagir Singh, the appellant was not born and it proves the facts that at the time when the appellant was given in adoption to Gurbachan Singh since deceased, the appellant had no other brother in his natural family. Although under the law there is no bar for the person to give the only son in adoption yet where the person has already given their one son in adoption will not give in adoption second son born subsequently after giving the first son in adoption and it proves the fact that only intention of this Manjit Singh, natural father of the appellant was to grab the property even at the cost of giving his only son in adoption. It is very interesting to note that a grand old man is alleged to have adopted the appellant yet the villagers were not joined in that ceremony. Even the daughters of Gurbachan Singh since deceased were not invited. Although P.W. 9 Beant Kaur the natural mother of the appellant has admitted in her cross-examination that they invited the daughters and other relations of the Gurbachan Singh since deceased but no such evidence has been proved or produced on record through whom the invitation was sent, Even this P.W. 9 Beant Kaur admitted in her cross-examination that the only ceremony that took place was distributing 'Ladoos' and 'Patasas' and she has also admitted that no nuindas were recorded in any book and if it is so then this argument of the learned Counsel for the appellant that the child was given in adoption is all without merits, because there was no actual giving or taking in adoption of the appellant by the natural pareius of Gurbachan Singh deceased because the essential ingredients of adoption ceremony, i.e. giving and taking of child is not proved from the testimony of this P.W. 9 Beant Kaur because she was much emphatic in her cross-examination that no other ceremony except distribution of Ladoos and Patasas took place on that day and it falsifies the entire claim of the appellant that he was given in adoption by his natural parents.
Although P.W. 10 Randhir Singh has stated in his examination-in-chief that the appellant was adopted after due ceremonies by Gurbachan Singh deceased yet in his cross-examination he has admitted that he was not present when the adoption took place. So, his evidence in fact, completely falsifies the factum of adoption rather his evidence is all hearsay evidence, and no reliance can be placed on this aspect. The other fact that was revealed by P.W. 1 Randhir Singh was that he got admitted the appellant in the school at the instance of Gurbachan Singh since deceased and the admission form was also signed by him (P.W. 10 Randhir Singh). It can be understood that a person is not in a position to go to the school, but he can put his thumb impression or signatures on the form sent through the person who had gone for admitting the child in the school but it is not so here and it proves that in fact there was no actual adoption of the appellant. In fact this arrangement was made by Manjit Singh, nephew of the deceased Gurbachan Singh and natural father of the appellant to give a colourful version to this false story propounded by the natural parents of the appellant in order to grab the property of Gurbachan Singh since deceased. It has been admitted by both P.W. 9 Beant Kaur and P.W. 10 Randhir Singh that Gurbachan Singh since deceased had three daughters, namely Surinder Kaur, Charanjit Kaur and Joginder Kaur. The respondents have produced on record certificates Ex. D.W. 4/A, Ex. D.W. 4/B, D.W. 4/ C, D.W. 5/A, D.W. 6/A and Ex. D.A. to prove that right from the year 1969 upto 1977, the daughters and grand daughters were staying with Gurbachan Singh deceased. Even this Ex. DA certificate shows that Kuldip Singh son-in-law of Gurbachan Singh took his education from Malwa College, Samrala while staying with his father-in-law and these facts are further fortified from the testimony of D.W. 15 Gurpreet Singh and he has categorically stated that after the year 1968, when the wife of Gurbachan Singh since deceased died, Charanjit Kaur defendant No. 2 along with her husband Kuldeep Singh lived with Gurbachan Singh deceased and served him, and children Parminder Kaur and Lakh winder Singh of defendant No. 2 Charanjit Kaur studied at village Sanghol. He alongwith his wife defendant No. 1 also remained with Gurbachan Singh since deceased. The last rites of Gurbachan Singh since diseased were performed by him along with his sisters-in-law. He has also proved the receipt Ex. D.W. 15/A which was obtained from Gurudwara Keshgarh Sahib after immersion of last remains of deceased Gurbachan Singh. This witness has further proved receipt Ex. D.W. 15/C regarding the payment of money to the Ragis who recited from Holy Granth Sahib at the time of last Bhog of deceased. Then it is proved on record that the daughters of deceased Gurbachan Singh stayed with him after the death of his wife in the year 1968 clearly proves that Gurbachan Singh since deceased had love and affection for his daughters, sons-in-law and their children and in these circumstances, how it can be believed that when right from the year 1968 till the day of adoption the deceased never felt all alone and remained in the company of his daughters will think of adoption a son of his nephew who was living in the village adjoining the house of deceased Gurbachan Singh, makes all this story false, fabricated and handiwork of mischievous brain of Manjit Singh, natural father of the appellant. Even if for the sake of arguments, it may be assumed that deceased Gurbachan Singh might (have) thought of adopting a son then why he will adopt a child of 4/5 years when he knows that there is no female member in the house to look after him makes this story propounded by Manjit Singh highly doubtful. It is not the case of the appellant that Gurbachan Singh since deceased was residing with his natural parents because it is an admitted case of the parties that he was residing in his house separately, then in these circumstances, how it is possible that grand old man will look after the child of 4/5 years, i.e. appellant, alleged to have been adopted by him. Even the other witnesses, namely D.W. 1 Malook Singh, D.W. 2 Narinderpal Singh, D.W. 3 Ranjit Singh, D.W. 4 Paramjit Kaur, D.W. 5 Ajmer Singh and D.W. 6 Gurmail Singh coupled with the testimony of D.W. 15 Gurpreet Singh, has amply proved on record, that the so-called alleged adoption by the appellant was not a valid adoption because how it is possible that the father who has got so great love and affection for his daughters will not inform his intention to adopt the appellant to his daughters when they along with their husbands and their children were residing with Gurbachan Singh since deceased continuously after the year 1968. No such evidence has been produced on record that the deceased Gurbachan Singh was never served by his daughters. Even otherwise, it is basic principles of civil law that the plaintiff has to prove his own case but when from the evidence led by the appellant, it is proved that this adoption was a novel method adopted by Manjit Singh, natural father of the appellant to grab the property of Gurbachan Singh since deceased, men certainly the adoption deed Ex. P5 is all a paper transaction. It is very interesting to note that even Manjit Singh, the natural father of the appellant did not join his real brother Randhir Singh even at the time of said ceremony proves that no such adoption ceremony was performed by deceased Gurbachan Singh. In fact all this exercise of paper transaction was done by Manjit Singh under the cover of darkness in connivance, with P.W. 6 Jeena Nath Kashmir Singh and one P.W. 5 Molu Ram deed writer. Section 11 of the Hindu Adoptions and Maintenance Act, 1956 deals with the conditions for a valid adoption which run inter alia :
(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(iii) If the adoption is by a male and the person to be adopted is a female, the adoptive mother is at least twenty-one years older than the person to be adopted.
(iv) If the adoption is by a female and the person to be adopted is a male, the adoptive mother is atleast twenty-one years older than the person to be adopted.
(v) The same child may not be adopted simultaneously by two or more persons.
(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned (or under their authority with intent to transfer the child from the family of its birth (or in the case of art abandoned child or child whose parentage is not known, from the place of family where it has been brought up) to the family of its adoption.
Section 12 of the Act ibid deals with the effects of adoption, which runs as under :
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such persons subject to the obligations, if any attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
The combined effect of both these sections is that the essential condition for valid adoption is the ceremony of actual giving the child in adoption and actually taking the child in adoption by the adopted father, but in the cross-examination of P.W. 9 Beant Kaur, she has categorically stated that apart from the distribution of Ladoos and Patasas, no other ceremony was performed and her statement is very vital to prove that whether there was a valid adoption and from her statement it is clearly proved that there is no valid adoption. Although in the written arguments, the appellant has stated that P.W. 9 Beant Kaur has proved the essential conditions of valid adoption yet it is in cross-examination which testifies the veracity of the witnesses and once the witness is emphatic in her cross-examination on that apart from distribution of the Ladoos and Patasas, no other ceremony was performed, then statement of P.W. 6 Jeena Nath cannot give a life to the deadwood. Although Section 15 of the Act ibid proclaims that no adoption which has been validly made (emphasis on word validly) can be cancelled by the adopted father, yet under Section 16 of the Hindu Adoptions and Maintenance Act, 1956, the presumption attached to adoption deed Ex. P5 is rebuttable presumption which stands rebutted and this Section 16 of the Act ibid runs inter alia :
'Whether any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.'
And from the evidence led by the respondent, it is amply proved on record that there was no valid adoption rather this was all a forged and fabricated document procured by Manjit Singh, natural father of the appellant being the nephew of Gurbachan Singh since deceased to grab his property and so neither the adoption is proved nor any presumption can be drawn in favour of his adoption deed Ex. P5 being a forged and fabricated document. If it is so then certainly the cancellation of deed of adoption vide cancellation deed Ex. D.W. 7/A Gurbachan Singh since deceased got cancelled the adoption deed Ex. P5 is a valid and legal one and from the perusal of this cancellation deed, it is very interesting to note that the testator has categorically recorded that Manjit Singh, natural father of the appellant and the real nephew of testator Gurbachan Singh deceased obtained his signatures on adoption deed Ex. P5 by misrepresentation and taking advantage of the old age of the testator to which he never consented and this statement of the deceased testator falsifies the tall claim of the appellant that he is the adopted son of deceased Gurbachan Singh. The cancellation deed Ex. D.W. 7/A has been duly proved on record from the testimony of D.W. 7 Mangat Rai, deed writer, who is the scribe of this cancellation deed and D.W. 8 Lekh Ram, one of the attesting witnesses of this cancellation deed. Even otherwise, it is an admitted fact that Gurbachan Singh since deceased remained sick at the fag end of his career and was provided medical aid from Ludhiana by his daughters and this fact has been fortified from the testimony of D.W. 9 Naranjan Singh, Record Keeper of Guru Teg Bahadur Hospital, Ludhiana and D.W. 10 Jokesh Kumar, Senior Cashier, Daya Nand Medical Hospital, Ludhiana. The authorities relied upon by the appellant Pathivada Ramasivami and Ors. v. Komda Surya Parkash Rai and Anr.., 1993 (2) HLR 219, and AIR 1902 (P and H) 282 (b) and 1975 RLR 136,1983 RLR 205,1972 PLR 50 and AIR 1968 Rajasthan page 51 are relevant where there is valid adoption but when it is amply proved on record that the appellant was not validly adopted and that the paper transaction was also set at rest vide cancellation deed Ex. D.W. 7/A, then these authorities do not, in any way, further the case of the appellant and the authorities cited by the respondents, Hari Ram v. Surja and Anr., 1993 (Suppl.) CCC 429; Smt. Urmila Devi and Anr. v. Hemanta Kumar Mohanta @ Hemanta Mohanta and Ors., AIR 1993 Orissa 213; Harjit Singh v. Union of India and Anr., 1991 (1) PLJ 403; Madhusudan das v. Namyanibai and Ors., 1983 HLR 485, 1993 (2) HLR 367, and AIR 1990 NOC 13, applies with full force to the facts of the present case. The other argument put forward by the appellant that the time of the execution of the adoption Ex. P5 the deceased Gurbachan Singh also executed agreement, copy of entry of the Register of the deed writer is Ex. P6 vide which he has proclaimed that as he has adopted the son, so his daughters or any other person will not have any right in his property automatically goes, once the adoption has been proved to be a paper transaction being result of fraud and misrepresentation practised by Manjit Singh natural father of the appellant, The learned Counsel for the appellant has also mentioned in the arguments that in the pleadings the appellant has mentioned that Amar Kaur, wife of Gurbachan Singh died in the year 1973 was not specifically denied in the written statement be admitted to be true is without any merit because Beant Kaur who is the natural mother of the appellant who appeared as P.W. 9 has categorically stated in the examination-in-chief that the wife of Gurbachan Singh since deceased died in the year 1968, in fact falsifies the pleadings of the appellant itself.
In view of above discussions, I do not find any infirmity in the findings of the lower Court in its impugned judgment on Issue No. 1 and the same are liable to be affirmed and the same are hereby affirmed.'
13. The learned Counsel for the appellant relied upon Section 16 of the Hindu Adoptions and Maintenance Act and submitted that there is a legal presumption as to a registered deed of adoption and in this case it is proved that Gurbachan Singh executed a registered adoption deed adopting the plaintiff as his son. The Counsel submitted that Shri Gurbachan Singh had no male issue. He had only three daughters who were married. They were not residing with him and in this eventuality, it was thought proper by Shri Gurbachan Singh to adopt the son of Shri Manjit Singh. The deed of adoption was acted upon in many aspects. All the ceremonies have been proved including the ceremony of giving and taking and as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956 there is a presumption as to registered document relating to the adoption. According to this section, whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. In such a situation the proving of giving and taking of a child is not necessary. He further submitted that since there was a valid adoption, it cannot be cancelled by the adoptive father or mother or any other person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.
14. I do not accept the contention raised by the learned Counsel for the appellant. So far as the legal position of Section 16 is concerned, it cannot be doubted but there is one rider to Section 16 that the presumption to the registered document is a rebuttable presumption and it is not a conclusive proof of valid adoption. If the evidence on the record has been appreciated rightly by the Courts below suggesting that the document of adoption which is being relied upon by the plaintiff, was in fact a waste paper and it has been managed by Shri Manjit Singh just to grab the property of Shri Gurbachan Singh and in such a situation, such document cannot be acted upon nor any legal effect can be given to such a document which has been managed as a staged drama show just to deprive the rightful owner of the property. There are strong suspicious circumstances proved on the record which would show that this deed of adoption though registered and is alleged to have been executed by Shri Gurbachan Singh, is nothing but a waste paper or document.
15. Let me first give the facts which have been proved on the record.
16. On the date of the alleged adoption the deceased Shri Gurbachan Singh, the adoptive father was an old man of 80 years, whereas appellant was of 4/5 years of age. The wife of Gurbachan Singh had already expired somewhere in the year 1968. It is also proved and uncontroverted on the record that Shri Gurbachan Singh had three daughters and they were married. Two daughters of Gurbachan Singh are married in Haryana near Karnal and the third was married in District Gurdaspur. Whether in such a situation, when Gurbachan Singh was man of 80 years, would adopt a minor child of 4/5 years especially when there is nobody in the family of Shri Gurbachan Singh to look after a child of 4/5 years? In such a situation, the adoption of a child of 4/5 years will be a liability for Shri Gurbachan Singh. If at all Shri Gurbachan Singh wanted to bring a child in his family, he could make a request to any of his daughters to give a child to him so that he may be able to have such a child. It is not proved on the record that Shri Gurbachan Singh had strained relations with his daughters. Why such a person would try to divest his daughters of his inheritance by adopting a male issue It is the case of the plaintiff himself that his natural parents Manjit Singh and Smt. Beant Kaur had been allegedly looking after Shri Gurbachan Singh. In these circumstances, Shri Manjit Singh took the advantage of the situation of the loneliness of Shri Gurbachan Singh and managed an adoption deed of his son Rajpal Singh so as to grab the property of Shri Gurbachan Singh. The preponderance of evidence is basic yardstick on which the civil suit can be disposed of and decided. It has been admitted by Shri Randhir Singh who is real brother of Shri Manjit Singh, natural father of the appellant, that the appellant was the only son of Manjit Singh when he was given in adoption because the appellant had one more brother by the name of Shri Amrit Pal Singh. He was also given in adoption to Shri Jagin Singh. Meaning thereby how Shri Manjit Singh can afford to give the plaintiff in adoption to Gurbachan Singh when he had already given elder brother of the plaintiff in adoption whose name was Shri Amrit Pal Singh. From this, irresistible conclusion can be drawn that the intention of giving the plaintiff to Shri Gurbachan Singh was only to grab his property.
17. Now it is to be seen whether the essential ceremony of giving and taking was ever performed or not The statement of Beant Kaur which has been quoted in the judgment of the First Appellate Court shows that only the ceremony of distributing 'Ladoos' and 'Patasas' were performed and no other ceremony was performed. If Shri Gurbachan Singh wanted to adopt the plaintiff with his free and open mind, he would be the first person to consult his daughters in this regard or at least he could have called his daughters at the time of the alleged ceremony. It is on the record that the daughters were not invited by Shri Gurbachan Singh. The ceremony of giving and taking was also not performed.
18. Faced with this difficulty, the Counsel for the appellant submitted that as ,per the statement of P.W. 1 Randhir Singh, it is proved that necessary ceremonies were performed including the ceremony of giving and taking but the statement of this witness is not of any help to the appellant because he has stated in his statement that he was not present at the time of the adoption. It was then submitted by the Counsel for the appellant that it is proved on the record that after the date of the alleged adoption, the plaintiff has been shown as the son of Shri Gurbachan Singh in the record of the school. This argument is again not acceptable to this Court. It appears to me that this case is again is stage managed drama. Randhir Singh P.W. 10, who is the real brother of Manjit Singh, natural father of the plaintiff, stated that he got admitted the appellant in the school at the instance of Shri Gurbachan Singh and the admission form was also signed by him. In fact, Shri Manjit Singh is the nephew of the deceased Gurbachan Singh. He in order to grab the property of his uncle Gurbachan Singh, gave a colour to show that his son, i.e. the plaintiff has been adopted by Gurbachan Singh and this adoption has been acted upon.
19. On the contrary, it is proved on the record that Shri Kuldip Singh who is the son-in-law of Shri Gurbachan Singh took the education at Samrala. He stayed with his father-in-law Shri Gurbachan Singh. It is also proved on the record that the daughters of Gurbachan Singh has been coming to the house of their father along with their children. The last rites of Gurbachan Singh were also performed by Shri Kuidip Singh, son-in-law, who placed on record the receipt Ex. D.W. 15/A which was obtained from Gurdwara Keshgarh Sahib after immersion of the last remains of the deceased. This witness also paid the money to Ragis who recited from Holy Granth Sahib at the time of last Bhog of deceased. Even after the death of their mother, the daughters of Shri Gurbachan Singh had stayed with their father. In such a situation, Shri Gurbachan Singh would think hundred times to adopt a child of 4/5 years who could contribute nothing to him at the old age of 80 years. It has been rightly remarked by the First Appellate Court that the deed of adoption is a handiwork of mischievous brain of Shri Manjit Singh, the natural father of the appellant. If Shri Manjit Singh wanted to give his child in adoption then in order to constitute a valid adoption he would be the first person to include his own brother Shri Randhir Singh but as per the statement of Shri Randhir Singh he was not present at the time of the alleged adoption. It clearly suggests that in fact the deed of adoption was only a paper transaction which was never acted upon. In the given circumstances, there was hardly any cause of action to Shri Gurbachan Singh to adopt a small child of 4/5 years of Shri Manjit Singh who was the nephew. The master brain of Shri Manjit Singh was so fertile that he managed one deed of adoption allegedly executed by Shri Gurbachan Singh. Taking advantage of the old age of the deceased and also that Shri Manjit Singh was residing in the next door neighbourhood of Shri Gurbachan singh, he got the document even registered. Execution of document is not simply a putting of signature on the part of a person, but he must place the signatures with the intention that he wants the desired results after due execution. Even the registration of a document will not give rise to the conclusive proof of adoption. The circumstances in this case are so strong that it disproves the deed of adoption and the alleged factum of adoption. The villagers would have been joined in such a sacred ceremony. There is no satisfactory evidence that the villagers did participate in such ceremony or that they gave Sagun, etc. either to the adoptive father or to the natural father.
20. When this aspect came to the Knowledge of Shri Gurbachan Singh that he was misled by Shri Manjit Singh he did not lose time and executed the deed of cancellation which is Ex. D.W. 7/A on the record. Assuming for the sake of arguments that Ex. D.W. 7/A would become meaningless but it will become meaningless only if the alleged adoption deed Ex. P5 is held to be a genuine document. The moment Ex. P5 is held to be illegal document, it will be presumed and inferred that Shri Rajpal Singh was never adopted by Shri Gurbachan Singh and in this manner, his estate will devolve upon his three daughters according to the provision of Hindu Succession Act. It will devolve according to his Will because the property in the hands of Shri Gurbachan Singh was his personal property as he had no male issue and, therefore, he was even competent to execute the Will and could dispose of the property through the Will which is proved in this case also. The Will is dated 31,7.1985. It is proved from the statement of Shri Mangat Rai, deed writer, and from the statement of Shri Lekh Raj who was one of the attesting witnesses apart from the statement of Shri Balraj Kishan, Sub Registrar.
21. Be that as it may, the point for determination in this case is whether Shri Gurbachan Singh made a valid adoption of the plaintiff The answer is negative.
22. Learned Counsel for the appellant cited Smt. Chandan Bilasni v. Aftabuddin Khan and Ors., AIR 1996 Supreme Court 591=I (1996) DMC 567 (SC). The ratio of the judgment relied upon by the Counsel is not applicable to the facts in hand. In the said case, adoption was by an old lady of 86 years. She could not be produced in Court for giving the evidence. However, other three witnesses who were present at the time of adoption ceremony were examined. One of them was priest and other was a person who was present at the time when the deed of adoption was executed by the adoptive mother. After considering the entire evidence on record, the Hon'ble Judges of the Supreme Court came to the conclusion that adoption had taken place by the ceremony of giving and taking. In the present case, reverting to the facts in hand, there is hardly any similarity between the facts' Randhir Singh, real brother of Manjit Singh was not even invited. How the father of the plaintiff could afford to leave him for the family of Shri Gurbachan Singh, when his other son is already under adoption. In the present case, the essential ceremony of giving and taking was not even proved. The conduct of Shri Manjit Singh that he even got an agreement in his favour from Shri Gurbachan Singh that the latter will not transfer or alienate the property by Will or by sale, etc. itself is a suggestive of the conduct of the plaintiff's father that his intention was not sincere or lawful
23. The Counsel for the appellant also relied upon Smt. Chhoto v. Sardar Singh, (1993-3) 105 PLR 740. This cited judgment will also not advance the case of the plaintiff because the presumption under Section 16 though strong but is rebuttable one and it has been successfully rebutted.
24. The Counsel for the appellant also submitted that it is not the case of the ' defendant that deed of adoption was the result of fraud, etc. The argument is not acceptable. Plaintiff is claiming the property on the basis of the adoption deed. He has to prove his valid adoption. The defendants have denied any act of valid adoption in favour of the plaintiff so much so they have relied upon the Will and the deed of cancellation. In the deed of cancellation, it is stated by the deceased that he never adopted the plaintiff. The Counsel also relied upon Kehar Singh v. Dharam Singh and Anr., (1995-3) 111 PLR 490. The cited judgment, in my opinion goes against the plaintiff. In the cited case, the natural father made a statement that he gave his son in adoption in consultation with his wife and brother. In the present case, Randhir Singh brother of Manjit Singh stated that he was never consulted upon so much so he was not present at the time of the alleged ceremony. Moreover, in the cited case the ceremony of actual giving/handing over the child was performed. In the present case, there is no such evidence. Section 15 of the Hindu Adoptions and Maintenance Act will also not be applicable in the present case because a valid adoption is required to be proved. In the present case, it has not been proved. Therefore, I approve the judgments and decrees of the Courts below and do not see any merit in this appeal which is hereby dismissed. No order as to costs.