IMPORTANT POINT
Adoption Deed - Where a deed of adoption is held, invalid still it can act as testamentary disposition.

RANJIT SINGH, J.

1. A short but a substantial question of law that arises for determination in the present Regular Second Appeal is whether Adoption Deed can be treated as testamentary disposition in favonr of a person where adoptions beld illegal.? This question may not be arising for the first time but it needs to be detennined in the present case.

2. This Regular Second Appeal is of the year 1979 and has journeyed the trial Court to High Court and then back to the trial Court again to reach High Court. In view of earlier order dated 10.5.1999 vide which the case was referred back for deciding the additional issue, this order may be read in continuation of theLorder dated 10.5.1999. The facts, in brief, can be listed out as follows:

3. Respondent nos. 1 to 4, 6 and respondent no.5 (since dead) had filed a suit against appellant Sher Singh seeking declaration and possession in regard to agricultural land measuring 46 Kanals 8 MarIas situate at Village Kakaheri. As disclosed in the plaint, one Biru died on or about 12.11.1973 leaving behind the above referred respondents as his legal heirs. It was stated that Biru deceased was brother of respondent no.1 Parsanni Devi and was maternal uncle of respondent nos. 2 to 6, and that the appellant-defendant Sher Singh had taken forcible possession of the suit hind on the basis of a sham and bogus adoption deed alleged to have been executed in his favou~ on 9.11.1968 by Biru. Appellant- Sher Singh, as per the respondents/plaintiffs, had no right, title or interest in the property of said deceased Biru. The adoption deed was stated to be null, void, ineffective, illegal, sham and bogus, as such, had no binding effect on the respondents. It was further pleaded in this regard that the said adoption deed was never executed and in case it had been so executed, then the same is shrouded by suspicious circumstances and that it was never intended to take effect. Plea was also made that Biru deceased was not competent to adopt the appellant under any provision of law and further that adoptee was not capable of being taken into adoption as he was stranger to the adoptor and was aged 16 years at the time of alleged adoption. Other averments were also made.

4. Notice in the suit was issued to the defendant - appellant.

5. In the written statement filed, the appellant raised preliminary objection that the respondents-plaintiffs had no locus to file the suit and the said suit was not maintainable in the form it was presented. It was also stated that the suit was not within time and that the same had also not been properly valued for the purpose of court fee. Otherwise it was admitted that Biru son of Sada was the owner of the suit land but it was denied if respondent no.1 was his sister or that respondent nos. 2 to 6 were his relatives, as alleged in the plaint. The appellant also took a stand that he was legally adopted son of Biru who had executed adoption deed in his favour which was duly registered before the Sub-Registrar. Further- the appellant pointed out that all the ceremonies of giving away and taking of adoption were performed according to the custom prevailing among the caste of Gujjars to which he and Biru belonged. It was also urged that Biru deceased was competent to adopt the appellant.

6. After the filing of replication, the trial Court framed the following issues on 8.4.1975 :

1. Whether the Biru deceased was brother of plaintiff no.! and maternal uncle of plaintiff no.2 to 6 and being so whether plaintiffs are the only legal heirs of the said deceased Biru ?If so, to what effect? OPP

2. Whether the defendant is a duly adopted son of the deceased Biru ? If so, to what effect? OPD

3. If issue no.l is proved in affirmative, whether the plaintiffs have no locus standi to file the suit ? OPD

4. Whether the suit is not maintainable in the present form ? OPD

5. Relief.

7. Parties led evidence in support of their respective stands and after discussing the evidence in detail in reg