A claim of adoption requires substantial evidence, and the non-production of a Will undermines its validity; secondary evidence insufficient for proving its execution.

JUDGMENT :

DEEPAK GUPTA, J.

1. The present second appeal is directed against the concurrent findings of the Courts below. The plaintiff (appellant before this Court), Noor Mohammad, filed a suit for declaration and consequential relief of permanent injunction, which was dismissed by the trial Court on 30.03.2018. The first Appellate Court affirmed that judgment, and dismissed the appeal on 27.02.2024

2. For clarity, the parties will be referred to according to their status in the trial Court.

3.1. Dispute pertains to the estate of one Alaudeen resident of Village Kot Basawa Singh, Tehsil Chhachhrauli, District Yamuna Nagar. Said Alaudeen was married to defendant No.1 Sadiken. Admittedly, the couple did not have any issue.

3.2. The case of the plaintiff Noor Mohammad i.e. appellant herein is that he is the adopted son of Alaudeen & defendant No.1 Sadiken, and had been adopted about 40 years ago in the presence of respectables and that necessary religious ceremonies were performed at that time and ever since then, he had been treated as a son by Alaudeen and his wife-defendant No.1.

3.3. Plaintiff further pleaded that Alaudeen had executed a Will dated 10.08.1997 regarding his property and that after the death of Alaudeen on 30.10.1997, he (plaintiff) became owner in possession of the suit property regarding which mutation No.662 was sanctioned on 29.05.2011. It was alleged further that defendant No.1, on the instigation of her nephews got mutation No.820 sanctioned in her favour regarding the suit property and thereafter, sold the same to defendant Nos.2 and 3 by virtue of sale deed dated 02.07.2012.

3.4. Plaintiff sought decree of declaration to be owner in possession of the suit property; and challenged the mutation in favour of defendant No.1 and subsequent sale made by her in favour of defendant Nos.2 and 3 to be null and void.

4. Defendant Nos.2 and 3 contested the suit and denied the plaintiff to be adopted son of Alaudeen. The original Will was not produced before the trial Court and as such, trial Court held the Will to be not proved in accordance with law. The mutation in favour of defendant No.1 regarding the estate of Alaudeen was held to be valid. The sale in favour of defendant Nos.2 and 3 was also held to be valid and genuine. Suit was accordingly dismissed.

5. Before the first Appellate Court, an application under XLI Rule 27 CPC was moved to prove the Will by way of secondary evidence. The said application was declined. On merits, the findings returned by the trial Court were affirmed and the appeal was accordingly dismissed.

6. Assailing the findings, it is contended by learned counsel that original Will of Alaudeen was produced by the plaintiff before the concerned Area Patwari for entering the mutation; that said Halgqa Patwari was examined during evidence as PW-4, who brought the mutation proceedings but did not produce the Will and therefore, the Appellate Court committed error in declining the permission to the plaintiff-appellant to prove the Will by way of secondary evidence. It is further the contention of learned counsel that attesting witnesses to the Will duly proved due execution of the Will by Alaudeen and that Courts below wrongly discarded their testimony. Besides, there was ample evidence to prove that plaintiff-appellant was the adopted son of Alaudeen. With these submissions, prayer is made for setting aside the judgments and decrees of the Courts below and to decree the suit, by allowing this appeal.

7. Having gone through the entire paper-book and the reasoning given by the Courts below, this Court does not find any merit in the appeal.

8. It is not disputed that original Will dated 10.08.1997 as propounded by the plaintiff was not produced d