The validity of the adoption deed and will, and the application of Section 16 of the Hindu Adoption and Maintenance Act, 1956 in property disputes.

JUDGMENT :

1. Instant appeal filed by the appellant-plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 10.12.2019 passed by Additional District & Sessions Judge No.15, Jaipur Metropolitan in Civil Suit No.32/2012, whereby learned trial court had dismissed the suit filed by the plaintiff.

2. Facts of the case are that plaintiff and respondent No.11 jointly filed a civil suit for permanent injunction and mandatory injunction against the respondents-defendants (for short ‘the defendants’) claiming themselves to be owners of the suit properties being natural successors of deceased Smt Lalita Devi and Late Shri Gopi Chand. Respondent No.1-defendant (for short ‘the defendant No.1’) claimed himself to be sole owner of the suit properties on the basis of Will dated 10.09.1996 of Smt Vimla Devi and stating himself to be adopted son of Smt Vimla Devi.

3. Trial court has framed the following issues on the basis of pleadings of the parties:

(1) Whether plaintiffs are entitled to get permanent injunction against defendants to the effect that neither they should not mortgage, sale, gift, transfer, destroy the suit property as mentioned in para 8 of the plaint in favour of any person, company, institution and in favour of defendant Nos.2 to 7 nor to get it done from others?

(2) Whether plaintiffs are entitled to get mandatory injunction to the effect that defendant Nos.2 to 7 should not pay rent of the suit property to defendant No.1 and either pay the same directly to plaintiffs or deposit the same in the Court?

(3) Whether plaintiffs are legitimate children of Gopi Chand Ji. Late Gopi Chand had not executed any Will and in the year 1972 as he was unable to execute any will?

(4) Whether Smt Vimla Devi Tholia had adopted Neeraj Jain younger son of her younger brother Nirmal Kumar Jain by registered adoption deed, so defendant is the absolute owner of all movable and immovable property of Late Sh. Prakash Chand Jain and Smt. Vimla Devi?

(5) Relief?

4. In order to prove his case, plaintiffs examined PW1-Asha Sanghi, PW2-Jitendra, PW3-Naresh and exhibited some documents. Defendants examined DW1-Neeraj, DW2-Nirmal Kumar, DW3- Hemlata, DW4-Mahendra Kumar and exhibited some documents. Trial court after considering the evidence led by the parties and hearing the arguments of both sides, dismissed the suit filed by the plaintiff.

5. Learned senior counsel for the plaintiffs submits that the judgment dated 10.12.2019 passed by the trial court is contrary to the facts as well as law and liable to be quashed and set aside. Learned senior counsel for the plaintiffs also submits that the trial court had not appreciated the evidence led by the parties in the right perspective. Learned senior counsel for the plaintiffs also submits that the defendant No.1 failed to prove the will dated 13.09.1978 executed by Sh. Gopi Chand in favour of Prakash Chand. Learned senior counsel for the plaintiffs also submits that the said will was not proved according to law. So, plaintiff is entitled for 1/3rd share in the properties of Late Gopi Chand. Learned senior counsel for the plaintiffs also submits that defendant No.1 relied on will executed by Smt Vimla Devi on 10.09.1996 but said will was not proved as per law. Smt Vimla Devi was not absolute owner of the properties. Learned senior counsel for the plaintiffs also submits that as per contention of the defendant No.1, he was adopted by Smt Vimla Devi on 12.09.1997 but adoption deed was registered on 04.03.2000. Learned senior counsel for the plaintiffs also submits that no adoption ceremony took place. So, giving and taking ceremony was not conducted. Learned senior counsel for the plaintiffs also submits that at the time of registration of adoption deed, defendant No.1 was 17 years old, so legally he could not be adopted. So, adoption deed is void ab initio. Finding of the trial court that plaintiffs had not challenged the adoption deed and Will is contrary to the fact because there is no need to cha