1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL FIRs.APPEAL NO.125/2005 Anil Kumar versus Ashok Kumar Date of Judgment :: 09th October, 2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.S.L.Jain, for the appellant.
---- BY THE COURT: This fiRs.appeal under Section 96 CPC is directed against judgment and decree dated 19.02.2005 passed by Additional District Judge, Nimbahera, whereby, the suit filed by the appellant-plaintiff seeking declaration as adopted son has been dismissed.
The facts in brief may be noticed thus : the appellant- plaintiff filed a suit on 16.11.2004, inter alia, with the averments that defendant – Ashok Kumar and plaintiff's natural father Laxman Das are real brotheRs.defendant has no son and has only three daughters viz.
Savitri, Pinki and Premlata; name of defendant's wife is Meera Devi; as defendant has no male issue, he adopted his brother's son (plaintiff) on 14.01.1984 as per the accepted practices and rituals of Sindhi Community, ever since plaintiff is defendant's adopted son and was living with him as such; at the time of adoption, plaintiff's age was 16 yeaRs.the adoption took place in the presence of persons belonging to the Community/Panchayat and in presence of 2 natural father and mother and adoptive mother; it was claimed that the plaintiff was living as adoptive son of defendant ever since and, a document in this regard, has also been executed; it was further claimed that defendant's elder brother and plaintiff's father – Laxman Das died recently, whereafter, on account of mala fides, the defendant has refused to accept the plaintiff as his adopted son and wants to adopt someone else; plaintiff and several persons tried to know the reason from the defendant; however, he was not ready to accept the plaintiff as his adopted son and, therefore, the suit was being filed; it was claimed that the cause of action arose on 24.10.2014 when the defendant refused to accept the plaintiff as his adopted son and the suit was within limitation.
A written statement dated 25.01.2005, admitting the claim made by the plaintiff in the suit, was filed by the sole defendant - Ashok Kumar, inter alia, stating that he had no male issue, he had adopted Anil Kumar on 14.01.1984 as per traditions and rituals of Sindhi Community, since then plaintiff was living with him as his adopted son; the adoption took place in the presence of plaintiff's natural parents and other members of the community; ultimately, it was stated that if the suit was decreed, the defendant had no objection.
On behalf of plaintiff - he himself was examined as PW-1 and Smt.
Meera wife of defendant was examined as PW-2, by way of documentary evidence Exhibit-1 adoption deed was exhibited; on behalf of defendant DW-1 Ashok Kumar was examined.
3 After hearing the parties, the trial court analyzed the averments, oral and documentary evidence available on record and came to the conclusion that plaintiff was aged 16 years at the time of alleged adoption on 14.01.1984; in the document Exhibit-1, plaintiff's father's name has been indicated as Laxman Das, who is the natural father of plaintiff, though titled as adoption deed, the document Exhibit-1 was not a adoption deed; the plaintiff failed to produce voters list, ration card and employment/education related documents to indicate as to whether the defendant was being described as adoptive father between the period 1984 to the date of filing of the suit; the trial court concluded that the adoption was contrary to the provisions of Sections 10(iv).11(iii).11(iv) and 6(iii) of the Hindu Adoption and Maintenance Act, 1956 ('the Act') and, therefore, under Section 5 of the Act, the adoption was void and, consequently, dismissed the suit.
Feeling aggrieved, the present appeal has been filed by the plaintiff.
Despite service, the sole respondent has chosen not to appear.
It is submitted by learned counsel for the appellant that the trial court committed grave error of law in dismissing the suit; it is submitted that once the admission of defendant had been made in the pleading, it was incumbent under Order XII, Rule 6 CPC for the trial court to give judgment and, in view of the categorical admission of the defendant and the entire plaint, allegations regarding date of adoption, ceremonies conducted at 4 the time of adoption, execution of document (Exhibit-1).it was not open for the trial court to thereafter reach a conclusion that the adoption was void and, therefore, the impugned judgment deserves to be set aside; it was further submitted that the various observations made by the trial court are factually incorrect, inasmuch as, the document (Exhibit-1) an adoption deed is a registered document, however, at page 6, the trial court has assumed the same as unregistered, the adoption has been held violative of provisions of Section 11(iv) of the Act, which provision has no application; further, there was no requirement to produce the documents like voters list, ration card and employment/education related documents on account of admissions made by the defendant; the adoptive mother had appeared in the witness box, which fact has been ignored by the trial court; the document (Exhibit-1) has wrongly been discarded despite the same being an adoption deed and, therefore, the impugned judgment, even otherwise, cannot stand the scrutiny and the same, therefore, deserves to be set aside and the suit deserves to be decreed.
Reliance was placed on Payal Vision Ltd.v.Radhika Choudhary : (2012) 11 SCC405 Karam Kapahi & Ors.v.M/S.Lal Chand Public Charitable Trust & Anr.
: 2010 AIR SCW2697 Vathsala Manickavasagam & Ors.v.N.
Ganesan & Anr.
: (2013) 9 SCC152 I have considered the submissions made by learned counsel for the appellant.
Provision of Order XII, Rule 6 CPC reads as under:- 5 “6.
Judgment and admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1).a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
.
A bare reading of the provision reveals that where admissions of fact have been made either in the pleading or otherwise, having regard to the admissions, the Court may make such order or give such judgment as it may think fit.
It is significant to notice that the provision gives discretion to the Court regarding passing of the order or judgment having regard to the admissions, the submission made by learned counsel for the appellant that once the admissions were made in the written statement by the defendant, the adoptive father, regarding the factum of adoption and he recorded his no objection to the suit being decreed, the trial court had no discretion except to decree the suit filed by the plaintiff- appellant, has apparently no warrant in law.
Hon'ble Supreme Court in the case of Karam Kapahi (supra) cited by learned counsel for the appellant, noticed the principles behind Order XII, Rule 6 CPC and observed as under:- “46.
The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment.
Under this Rule either party may get rid of so much of the rival claims about 'which there is no controversy' [See the dictum of Lord Jessel, the Master of Rolls, in Thorp v.
Holdsworth in (1876) 3 Chancery Division 637 at 640].In this connection, it may be noted that Order 12 Rule 6 was 6 amended by the Amendment Act of 1976.
47.
Prior to amendment the Rule reads thus:- “6.
Judgment on admissions.
- Any party may, at any stage of a suit, where admissions of facts have been made, either, on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just.”
.
48.
In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion.
It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it 'ex debito justitiae', a Latin term, meaning a debt of justice.
In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right.
However, the Court always retains its discretion in the matter, of pronouncing judgment.
49.
If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of Order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely: 'admission of fact..........either in the pleading or otherwise, whether orally or in writing'.”
.
However, in the same judgment, the Hon'ble Supreme Court in para 59 categorically laid down as under:- “59.
However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word “may”.
has been used.”
.
In Razia Begum v.
Sahebzadi Anwar Begum & ORS.: AIR1958SC886 in a case where declaration was sought that the appellant was a legally wedded wife, wherein, a written statement containing unequivocal admissions regarding marriage and the claim made by the plaintiff were made, the 7 Hon'ble Supreme Court noticed the contention regarding applicability of Order XII, Rule 6 CPC and observed as under:- “(9)........it is convenient to deal with the other contention raised on behalf of the appellant, namely, that in view of the unequivocal admission of the plaintiff's claim by the Prince, in his written statement, and repeated as aforesaid in his counter to the application for intervention by the respondents 1 and 2, no serious controveRs.now survives.
It is suggested that the declarations sought in this case, would be granted as a matter of course.
In this connection, or attention was called to the provisions of R.
6 of O.
12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff .
These provisions have got to be read along with R.
5 of O.
8 of the Code with particular reference to the proviso which is in these terms : “Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admissions.”
.
The proviso quoted above, is identical with the proviso to S.
58 of the Evidence Act, which lays down that facts admitted need not be proved.
Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted...............”
.
Whereafter, inter alia, arrived at the following conclusions:- “(13) As a result of these considerations, we have arrived at the following conclusions : (1)............(2)............(3) Whether the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy; (4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Ss.
42 and 43 of the Specific Relief Act; (5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from 8 the admission; (6) The result of a declaratory decree on the question of status, such as in the controveRs.in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of 'present interest', as evolved by case law relating to disputes about property does not apply with full force; and, (emphasis supplied)”.
The present case being a case seeking declaration as an adoptive son and having implications not only for the parties before the Court but generations to come and, therefore, in view of the law laid down by Hon'ble Supreme Court in the case of Razia Begum (supra) and the principle laid down in para 59 in the case of Karam Kapahi (supra).the submission made by learned counsel for the appellant regarding the mandatory nature of provisions of Order XII, Rule 6 CPC has absolutely no substance and the same is, therefore, rejected.
On the basis of mere admissions made by the defendant, the decree need not always be granted in terms of the prayer made in the suit.
The Court has the duty to see whether the plaintiff is entitled under law to get the relief sought for.
The Court should also see whether the suit is collusive meant to defeat the law concerning public revenues, public policy, etc.The Court ought not to pass a decree mechanically based on the admissions or consent of parties.
The judgments cited by learned counsel for the appellant in the case of Payal Vision LTD.(supra) and Vathsala Manickavasagam (supra) have no application to the facts of present case.
9 Coming to the merits of the decree passed by the trial court, it would be noticed that the plaintiff entered the witness box as PW-1 and deposed that he was adopted on 14.01.1984 at the Gurudwara in presence of his natural parents and adoptive parents, after death of his father on 14.06.2004 defendant wanted to take someone else in adoption, who executed the document (Exhibit-1).produced adoption deed (Exhibit-1).he was not cross-examined.
PW-2 Smt.
Meera, the adoptive mother, claimed that plaintiff was adopted on 14.01.1984, after death of Laxman Das there was dispute between the parties, whereafter Exhibit-1 was executed and now there was no dispute between the parties, she was also not cross-examined.
The defendant as DW-1 Ashok Kumar entered the witness box and claimed that plaintiff was adopted on 14.01.1984 in presence of the natural parents; after death of his brother there was some dispute when the adoption deed (Exhibit-1) was executed, which document was got registered and now there was no dispute between the parties; he was also not cross- examined.
The only document (Exhibit-1) reads as under:- “-: ग द न म :- श अश क कम र प त सगन मल ज ससन र मन न , आय 51 स ल ननव स ननम हड र ज० .....पथम क एवम श अन ल कम र प त लकमण द स ज ससन र मन न , आय 32 स ल (32 स ल).ननव स ननम हड र ज० .....द(त य क ज कक पथम क और द(त य क क प त लकमण द स ज द न सग भ ई ह- मर क ई नरसनतत नह./ ह- । इस क रण म2न अ न ड भ ई क त अन ल प त लकमणद स ज र मन न क 10 म2न ददन /क 14-जनवर.
1984 क मकर सक /नत क ददन हम र ससन सम ज क5 रम र ओ/ क अनस र गर गनथ स ह क पवत गनथ क स मन एव/ ससन च य/त क मख य; क स मन द(त य क क ग द सलय थ और द(त य क क प त लछमणद स ज व म त सन त दव न द(त य क क मझ ग द म> ददय थ । गर गनथ स ह क5 स क म> ससन च य/त क स मन उस अ न ग द.
त घ पAत ककय थ । तभ स द(त य क मर ग द.
त ह कर मर स थ रह रह ह- । इस सम र ह म> मर.
सB म र दव भ थ उसन भ द(त य क क ग द.
त ह न क5 सव कDत द.
थ । श स; क अनस र व/श रम र ओ/ म> त ह न आवशयक ह- । द(त य क मर सप णH ज स ग त ज ह- इससलए द(त य क मर ग द.
त ददन /क 14 जनवर.
1984 स ज न ज रह ह- । च/कक उस वक म2न दसत वज ननष ददत नह./ ककय थ । आग चल कर ककस पक र क क ई पवव द न ह इससलए यह ग द न म आज ननष ददत ककय ज रह ह- । मर त न त य / ह- जजनक न म स पवत, प क/ 5 व पमलत ह- । स पवत व प क / 5 क5 श द.
कर द.
ह- । ससरM पमलत क5 श द.
करन क5 ह- । द(त य क क ज स म2न ग द सलय ह- तभ स वह मर ररव र क सदसय ह- और उसक सभ सवतव अध क र हससयत त क ददन /क 14 जनवर.
1984 स प प ह गय ह- । ज सवतव अध क र मर ज य/द त क प प ह त ह2 वह सभ सवतव अध क र द(त य क क प प ह- और आग भ प प ह त रहग> । मर सभ समMक ककय कमM वगर ज भ पवत कतMवय हम र ररव ज क अनस र द(त य क क करन आवशयक ह ग वह द(त य क हससयत ग द.
त करग इस त आग चल कर ककस क क ई एतर ज नह./ ह ग । सलह ज यह ग द न म म2 जसथर पS स ब न ककस Hर द व मक5 क मर.
सB म र दव और लकमण द स व उसक5 सB सन त दव क5 सहमनत स सलख दत ह/ कक सनद रह और वक जररत क म आव> । ददन /क :- 16-10-2004 ई० A अश क कम र B C गव ह म र दव D E गव ह सन त F A अश क कम र B”.
From the above, it appears that the plaintiff claimed that he was adopted on 14.01.1984, his natural father Laxman Das died on 14.06.2004, whereafter dispute arose between the parties; on 16.10.2004, after the dispute was settled, the document Exhibit-1 was executed between the parties and the present suit was filed on 16.11.2004 with the allegation that after death of Laxman Das, the defendant mala fidely refused to accept the plaintiff as his adopted son, which was the cause of 11 action for filing of the suit and a specific date i.e.24.10.2004 was indicated as the date when the defendant refused to accept him as his adopted son; however, interestingly in the statements by all the three witnesses i.e.plaintiff and so called adoptive parents, it is indicated that by execution of Exhibit-1, the dispute between the parties was settled and no mention has been made as to any dispute between the parties having arisen after execution of document Exhibit-1.
Surprisingly, the defendant has accepted the allegations of mala fides made by plaintiff in the plaint in his written statement as well.
The entire conduct shows that the cause of action sought to be indicated in the plaint appears to be wholly non-existent in the present case; further a bare look at the document Exhibit-1 (supra) would reveal that the plaintiff has indicated Laxman Das as his father, which fact clearly negatives the assertion that he was adopted on 14.01.1984; though the document has been titled as adoption deed, the language of the document is essentially declaratory in nature; further, interestingly Meera Devi, the natural mother and Sunita, the adoptive mother have signed the documents as witnesses, which do not fulfill the requirements of Section 16 of the Act, which attaches presumption as to registered documents relating to adoption subject to certain conditions.
However, even if, the case as pleaded by the parties is examined on the touch stone of requirements of the Act for valid adoption, the admitted fact that plaintiff was 16 years of 12 age at the time of his so called adoption, it was incumbent on the plaintiff to plead and prove custom or usages applicable to the parties permitting persons, who have completed the age of 15 years being taken in adoption in view of provisions of Section 10(iv) of the Act.
In view of the claim made by the plaintiff regarding date of adoption being 14.01.1984 and the suit having been filed in the year 2004 i.e.after almost 21 yeaRs.the non-production of voters list, ration card and employment/education related documents to support the contention regarding adoption in the year 1984 assumes great significance and cannot be brushed aside lightly as the said documents would have categorically proved the factum of adoption and/or the parties having acted on the said adoption during all these yeaRs.the non-production of the natural mother Smt.
Meera in the witness box is also a significant omission.
So far as the findings of the trial court regarding violation of provisions of Sections 11(iii).11(iv) and 6(iii) of the Act are concerned, the said findings cannot be supported as in case of adoption by Hindu male with the consent of his wife, the requirement of Section 11(iv) of the Act does not come into picture at all.
However, in view of the above discussion, the finding recorded by the trial court regarding the suit being collusive and the claim of adoption being not in consonance with the provisions of the Act and, consequently, the same being void on account of violation of provisions of Section 5 of the Act 13 deserves to be sustained.
Consequently, there is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI).J.
A.K.Chouhan/- 48