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2018 Supreme(P&H) 795
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Tarlok Singh - Appellant
Versus
Kirpal Singh (deceased) through his LRs - Respondent
RSA No.1295 of 1988 (O&M)
Decided On : 17-01-2018
Advocate Appeared:
For the Appellant : Mr. Sanjay Majithia, Mr. Inderjeet Singh
For the LRs of Respondent: Mr. P.S. Thiara
Document--Proof of Execution--Once the document is not required to be attested, examination of the attesting witnesses cannot be considered mandatory before the execution of document can be held to have been proved
Adoption Deed--Consent of natural mother and adoptive mother is necessary at the time of adoption and consent is not required at the time of execution of the Memorandum of Adoption.
Headnote:
(A) Registration Act, 1908--Registration of Document--Proof of Execution--Whether a document which is not required to be attested by marginal witness but is registered as per provisions of Registration Act, 1908 can only be proved on examination of attesting witness--NO--Held; once the document is not required to be attested, examination of the attesting witnesses cannot be considered mandatory before the execution of document can be held to have been proved--Evidence Act, 1872, S.68.
(B) Registration Act, 1908--Registration of Document--Adoption Deed--Proof of Execution--Held; provisions of Hindu Adoption and Maintenance Act does not require that deed of adoption or memorandum of adoption must be attested by attesting witness--Thus, examination of attesting witness cannot be considered mandatory before memorandum can be held to have been proved--Once one of the Executant and Scribe has been examined, the document stood proved in accordance with law-- Memorandum of Adoption is registered under the Registration Act, 1908--Registered document has a presumption of genuineness having been registered by the Registrar in discharge of his official functions--Hindu Adoption and Maintenance Act, 1956, S.7 & 9.
(C) Hindu Adoption and Maintenance Act, 1956, S.7 & 9--Adoption of Son--Consent of mother--Contention that consent of adoptive mother and natural mother are not proved at the time of execution and registration of memorandum of adoption--Held; No doubt, the consent of natural mother and adoptive mother is necessary as per the provisions of Sections 7 and 9 of the Hindu Adoptions and Maintenance Act, 1956 at the time of adoption--However, consent is not required at the time of execution of the Memorandum of Adoption.
In the present case, Gurdit Singh, the natural father has appeared as DW3. He has deposed that Sohan Singh and his wife had given consent for taking Tarlok Singh in adoption and that is how Tarlok Singh was put in the lap of Sohan Singh. Gurdit Singh also says that the adoption had taken place with his and his wife's consent. Therefore, the requirement of Sections 7 and 9 of the Hindu Adoptions and Maintenance Act, 1956 stood complied with.
It is further proved on the file from the evidence of Tarlok Singh and Gurdit Singh that after adoption, Tarlok Singh lived in the Village Smalsar i.e. the place of residence of Sohan Singh. Sufficient evidence have been produced on file to prove that Tarlok Singh was married by Sohan Singh. Invitation Card for marriage of Tarlok Singh, which is part of the record, proves that Sohan Singh had invited near relations as a father of Tarlok Singh. Mother-in-law of Tarlok Singh, Surjit Kaur has also appeared in the witness-box as DW2 and has proved that fact.
Anil Kshetarpal, J.
The defendant-appellant is in the Regular Second Appeal against the judgment passed by the learned Additional District Judge, the First Appellate Court, reversing the judgment passed by the trial Court.
2. In the considered opinion of this Court, following substantial questions of law needs determination:-
(I) Whether a document which is not required to be attested by marginal witnesses but is registered as per the provision of the Registration Act, 1908 can only be proved on examination of attesting witnesses?
(II) Whether the judgment passed by the First Appellate Court is result of mis-reading and non-reading of the material evidence available on the file?
FACTS
3. Dispute in the present case is with respect to the property owned by late Sh. Sohan Singh. The plaintiffs are brothers of Sohan Singh namely Kirpal Singh and Mohan Singh, whereas defendant-appellant-Tarlok Singh claims himself to be adopted son of Sohan Singh and hence owner of the property. Sohan Singh died on 23.08.1983. It is the case of the defendant-appellant that he was adopted by Sohan Singh in the year 1962- 63 and ceremonies of adoption were performed at that time. It is further the case of the defendant-appellant that on 12.12.1972, Sohan Singh and Gurdit Singh (natural father of Tarlok Singh, defendant-appellant) executed and got registered a Memorandum of Adoption acknowledging the factum of adoption having been taken place approximately 9 years back.
4. Learned trial Court, on appreciation of the evidence, dismissed the suit filed by the plaintiffs after recording a finding that the adoption of Tarlok Singh by Sohan Singh and Hardial Kaur (wife of Sohan Singh) has been proved.
5. Learned First Appellate Court reversed the finding by giving the following reasons:-
1. Execution of the Memorandum of Adoption dated 12.12.1972 Ex.D1 is not proved as attesting/marginal witnesses have not been examined.
2. Consent of Hardial Kaur wife of Sohan Singh is not proved at the time of the execution of Ex.D1 i.e. a Memorandum of Adoption dated 12.12.1972.
3. Adoption is not valid as consent of Nasib Kaur wife of Gurdit Singh (natural mother of Tarlok Singh) has not been proved at the time of the execution of the Memorandum of Adoption dated 12.12.1972.
4. Tarlok Singh after knowing that Sohan Singh has died issueless, wants to grab the property of Sohan Singh.
5. Ceremonies of adoption like giving and taking are not been proved.
Stage now set for considering the questions of law.
(I) Whether a document which is not required to be attested by marginal witnesses but is registered as per the provision of the Registration Act, 1908 can only be proved on examination of attesting witnesses?
6. A Memorandum of Adoption Ex.D1 dated 12.12.1972 is not required to be attested by the two attesting/marginal witnesses. Provisions of the Hindu Adoption and Maintenance Act, does not require that deed of adoption or Memorandum of Adoption must be attested by attesting/marginal witnesses. In the present case, the Memorandum of Adoption has been proved from the statement of Gurdit Singh (natural father of Tarlok Singh) who has appeared as DW3. The defendant-appellant has also examined Scribe-Hukam Chand as DW1. Gurdit Singh is one of the Executant of the document. No doubt, the Memorandum of Adoption is attested by two marginal witnesses, however, once the document is not required to be attested, examination of the attesting witnesses cannot be considered mandatory before the Memorandum of Adoption can be held to have been proved. Once one of the Executant and Scribe has been examined, the document stood proved in accordance with law.
7. Memorandum of Adoption is registered under the Indian Registration Act, 1908. Registered document has a presumption of genuineness having been registered by the Registrar in discharge of his official functions. In view thereof, question No.1 is answered in favour of the appellant.
(II) Whether the judgment passed by the First Appellate Co
