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REPORTABLE

IN THE SUPREME COURT OF INDIA        CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3895-3896 OF 2013 (Arising out of S.L.P. (C) Nos. 33612-33613 of 2009)

Harnek Singh        ……Appellant(s)

Vs.

Pritam Singh & Ors.                         ….Respondent(s)

J U D G M E N T

M.Y.EQBAL,J.

Leave granted.

2. The plaintiff-appellant assailed the common judgment and  

order dated 11.05.2009 passed in RSA Nos.122/2008 and 123/2008  

whereby the learned Single Judge dismissed both the appeals and  

affirmed the order passed by the lower appellate court.   

3. The facts leading to these appeals may be summarized  

thus:-

4.   The plaintiff (appellant herein) filed a suit being Title Suit  

No. 80/1985 on 23.04.1985 for declaration that the gift  deed dated  

28.02.1985 registered on 22.03.1985 alleged to have been executed  

by  defendant  No.1  Sarup  Singh  (since  deceased)  in  favour  of  

defendant Nos. 2 and 3, Pritam Singh and Surjan Singh, in respect of  

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the suit  land is  illegal,  void,  ineffective and is  to  be set  aside.   A  

decree  for  permanent  injunction  was  also  sought  for  restraining  

defendant No.1 Sarup Singh (now deceased) from alienating the land  

fully described in the schedule of the plaint.  The plaintiff filed the said  

suit with the averments that he is the adopted son of Sarup Singh  

alias  Sarupa (now deceased) (defendant  No.1 in  the original  suit).  

The plaintiff’s case is that Sarup Singh and his wife Prem Kaur (now  

both deceased) had no child and were issueless.  They approached  

the  natural  father  of  the  plaintiff  Kesar  Singh  and expressed their  

desire to adopt the plaintiff as their son to which Kesar Singh agreed.  

Consequently, the plaintiff  was adopted as their own son by Sarup  

Singh and his wife on 16.12.1982 at Village Khatoli, District Ambala.  

There was actual giving and taking i.e. the plaintiff was allegedly put in  

the lap of Sarup Singh and Prem Kaur by the natural father Kesar  

Singh and declared that from 16.12.1982 the plaintiff  became their  

son.  It was alleged that all necessary ceremonies including religious  

and customary formalities were observed and sweets were distributed  

and since then the plaintiff became the son of deceased defendant  

No.1 Sarup Singh and his wife.  Plaintiff’s further case is that since the  

adoptive  father  and  mother  had  become  old,  the  plaintiff  started  

managing the entire property of the family including the land, houses  

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etc., and has been cultivating the suit land.  The plaintiff’s further case  

is that for a few days when he went out of the village, defendant Nos.2  

and 3 who are very strong headed and clever fellows removed the  

deceased Sarup Singh from his house and by misrepresentation and  

putting pressure to him and by giving threat and undue coercion got  

the alleged gift deed executed in their favour taking advantage of the  

unsound and mental weakness of the deceased Sarup Singh.  The  

plaintiff,  therefore,  filed  the  suit  being  No.  80/1985  against  Sarup  

Singh (defendant No. 1) and defendant Nos. 2 and 3 challenging the  

said alleged gift deed.  The plaintiff also alleged that defendant Nos. 2  

and 3 have obtained a decree against  defendant No.1 regarding the  

suit  property.  Plaintiff’s  further case is  that  the plaintiff  along with  

defendant No.1 constituted a Joint Hindu family and was having title in  

the ancestral property.

5. On being summoned, defendant Nos. 2 and 3 filed their  

joint written statement taking preliminary objection that the plaintiff is  

not the adopted son of Sarup Singh as Sarup Singh never adopted the  

plaintiff and, therefore, the plaintiff has no locus standi to file the suit.  

Defendants  also  denied  that  the  plaintiff  is  in  possession  of  the  

disputed land.  The entire story of giving and taking and celebration  

was denied.   It  was also denied that  any religious and customary  

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formalities  were ever  observed in  respect  of  the alleged adoption.  

Defendants’ further case is that defendant No.1 Sarup Singh executed  

a gift deed in their favour out of love and affection and in view of the  

services rendered by them.  It was stated that defendant No.1 was the  

absolute owner of the suit property and was fully competent to alienate  

the same in favour of defendants.

6. It is pertinent to mention here that earlier defendant Nos. 2  

and 3 had also filed a suit being Suit No. 784 of 1984 titled as Hari  

Singh vs. Sarupa (defendant No. 1) for declaration that they are the  

owners in possession of the suit land on the basis of Gift Deed dated  

22.03.1985 which was decreed by the Civil Judge vide his judgment  

and  decree  dated  15.04.1985.   The  plaintiff  who  was  having  no  

knowledge of the decree dated 15.04.1985 could not challenge the  

same in his aforementioned Suit No. 80 of 1985 filed on 23.04.1985  

and had to file a second suit being Suit No. 46 of 1987 challenging the  

decree dated 15.04.1985 alleging therein that the decree is a collusive  

one and has been obtained by committing fraud upon the Court and  

thus the same is invalid and ineffective.  The pleadings of the parties  

in Suit No. 46 of 1987 are alleged to be similar to the pleadings in Suit  

No. 80 of 1985.  

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7. Both the suits were taken up together by the trial court and  

the following consolidated issues were framed:-   

1. Whether the plaintiff is adopted son of Sarup Singh as  alleged? OPP

2. Whether  the  judgment  and  decree  dated  15.4.85  is  liable to be set aside as alleged? OPP

3. If issue No.1 is proved, whether the land was ancestral  in the hand of Sarupa Singh, if so to what effect? OPP

4. Whether the plaintiff was in possession of the suit land  as alleged? OPP

5. Whether the plaintiff  is entitled for possession of suit  land as alleged? OPP

6. Whether if the adoption deed if any is a result of forgery  as alleged? OPD

7. Whether  gift  deed dated 8.2.1985 is  liable to be set  aside as alleged? OPP

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

9. Whether the suit  is  bad for non joinder of necessary  parties? OPD

10. Whether the defendants are entitled for special costs?  OPD

11.  Whether the plaintiff has no cause of action to file the  present suit? OPD

8. The  trial  court  in  its  judgment  dated  31.08.2007  after  

analyzing the evidence and considering the facts of the case recorded  

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its findings and decided Issue Nos.1 and 6 in favour of the plaintiff  

holding  that  the  plaintiff  is  the  legally  adopted  son  of  deceased  

defendant No.1 Sarup Singh.  However, the trial court decided Issue  

Nos.  2  and  7  against  the  plaintiff  and  in  favour  of  defendant-

respondents.  So far Issue No.3 is concerned, the trial court held that  

the suit property was not the ancestral property; hence, Sarup Singh  

was entitled to alienate the property.  Consequently, the suit filed by  

the plaintiff was dismissed.

9. Aggrieved by the judgment passed by the trial court, the  

plaintiff-appellant  filed appeals before the District  Judge being Civil  

Appeal  Nos.  84  and  85  of  2007.   The  first  appellate  court  while  

narrating the facts in its judgment dated 13.12.2007, first of all noticed  

that the suit was filed by the plaintiff during the lifetime of his adoptive  

father Sarup Singh making him defendant No.1. The said Sarup Singh  

contested the suit by filing written statement denying  the averments  

made in the plaint that he ever adopted the plaintiff-appellant as his  

son.  The said Sarup Singh also denied the allegations that the gift  

deed was executed by him in favour of  the defendant-respondents  

under any pressure or coercion.  After analysing the pleadings and the  

evidence, the appellate court observed that although the plaintiff came  

up with a definite plea that he was being treated as adopted son of  

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Sarup  Singh  since  1970  but  the  alleged  actual  giving  and  taking  

ceremony took place in the year 1982; hence the plaintiff-appellant  

was not sure as to whether the adoption had taken place in the year  

1970 or in the year 1982.  Strangely enough, no date or month has  

been provided  in the pleadings of the year 1970 when the alleged  

adoption might have taken place.  Admittedly, when the appellant was  

taken in adoption, he was about 23 years old in the year 1982 and was  

a married man having children. The appellate court held that since the  

appellant was more than 15 years of age in 1982, it was incumbent  

upon him to prove that there was valid customs amongst Jats under  

which he could have been given in adoption.  The appellate court after  

noticing the fact that custom prevalent amongst the community has  

not been pleaded or proved, relied upon the decision of Lahore High  

Court in  Kishan Singh and Others  vs.  Shanti and Others, AIR  

1938 Lahore 299 for the proposition that if any party wants the Court  

to rely on a custom, onus is on that party to plead the custom in the  

precise terms and lead evidence to establish the said custom.  The  

first appellate court while dismissing the appeals discussed the other  

decisions on the point of  custom and finally recorded the following  

findings:-

“  I  have  considered  the  respectful  submissions  of  the  learned counsel for the appellant at length but before the  

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appellant  could  succeed in  his  claim  it  was  incumbent  upon the appellant to at least plead that his adoption is in  consonance  with  the  custom  prevalent  amongst  his  community. This fact has no where been pleaded in the  plaint.  This court is further of the view that it should have  been established  beyond doubt  that  there existed such  custom in the area of district Ambala that jats can adopt a  child who may be more than fifteen years of age and may  be married.   The  cited ruling of  Madhya Pradesh High  Court and of our own Hon’ble High Court pertains to the  area of M.P. and district Rohtak are of no avail to the case  of the appellant as custom differs from place to place and  from tribe to tribe.  It cannot be laid down as a general rule  that  simply  because  there  was  a  custom  in  Rohtak  amongst Jat to adopt even a married person, the same will  hold good in District Ambala also.  There was no dispute  about  this  proposition  of  law  that  once  a  custom  is  recognized through judicial pronouncements, then it need  not be  proved in subsequent cases but at the same time  this court is constrained to lay down that no judgment has  been produced by the learned counsel for the appellant  with respect to jats living in the area of District Ambala.  The  custom  amongst  jats  who are  habitants  of  district  Ambala  may be  different  then  custom  of  jats  who  are  residents of district Rohtak. It reminds  this court  that  our  own  Hon’ble  High  Court  has  laid  down  in  one  of  the  decided case reported in Hari Singh Vs. Bidhi Chand as  reported in 1997 MLJ 224 that jats of tehsil  Naraingarh  district Ambala lack the capacity to adopt.  From all this it  can be safely inferred that the custom differs from place to  place and from tribe to tribe and as such evidence should  have been led beyond shadow of doubt that there existed  custom amongst jats  of  Ambala under which a married  man and man beyond age of 15 years could have been  given in adoption.  Strangely enough, the custom has not  been pleaded in the present case and thus findings cannot  be  returned  on  issues  no.1  and  6  in  favour  of  the  appellant.  Not only this, the suit was filed during the life  time  of  Sarup  Singh,  alleged  adopted  father   of  the  appellant and in pursuance to the notice given by the court  Sarup Singh duly put in appearance before the court and  filed  a  written  statement  wherein  he  denied  the  very  

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factum of  adoption.  Once the adoptive father himself  is  alleging that he never took the appellant in adoption, this  court cannot substitute its own decision that the appellant  was taken in adoption by Sarup singh.  Prima facie the  alleged adoption is violative of the provision of section 10  of  the  Hindu  Adoption  and  Maintenance Act  1956  and  accordingly  the  same  cannot  be  held  to  be  a  valid  adoption.  The findings of the learned trial court on issues  no.1 and 6 thus cannot be sustained and are accordingly  reversed.”

10. The plaintiff-appellant  assailed the judgment  of  the first  

appellate court by filing second appeals in the High Court being R.S.A.  

Nos. 122 and 123 of  2008.  The High Court  after discussing  the  

judgments relied upon by the first appellate court and considering the  

facts and evidence on record came to the conclusion  vide  judgment  

dated  11.05.2009  that  no  fault  could  be  found  with  the  findings  

recorded  by  the  first  appellate  court  holding  that  in  absence  of  

pleading and proof of custom, no reliance could be placed on adoption  

deed, specially when the stand of the plaintiff-appellant himself  in the  

suit  was  that  he  was governed by personal  law,  and  the  plea  of  

custom was in the alternative. The High Court, therefore, affirmed the  

findings  recorded  by  the  first  appellate  court  and  dismissed  the  

appeals. Hence, the plaintiff-appellant has moved this Court by filing  

the instant appeals by special leave.

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11. Ms. Jyoti  Mendiratta,  learned counsel  appearing for  the  

appellant  assailed   the  judgment  and  order  passed  by  the  first  

appellate court and that by the High Court as being contrary to law  

settled by judicial pronouncements that there is a custom  prevalent  

amongst  the  Jats  in  Haryana  to  adopt  even  a  married  person.  

Learned counsel submitted that in view of the judicial pronouncements  

both  the  courts  have  misdirected itself  by holding  that  neither  the  

custom has been pleaded nor the same has been proved.  Learned  

counsel submitted that it  is well recognized that the Hindu Jats are  

governed by their customs and, therefore, even in the absence of a  

pleading, the appellate courts ought to have affirmed the judgment  

passed  by the  trial  court.   Learned counsel  drew our  attention  to  

various decisions favoured and against on this issue which have been  

fully discussed by the courts below.

12. Section 10 of the Hindu Adoption and Maintenance Act,  

1956  needs to be quoted hereinbelow:-

“10. Persons who may be adopted - No person shall  be  capable  of  being  taken  in  adoption  unless  the  following conditions are fulfilled, namely:-  

(i) he or she is a Hindu;  

(ii) he or she has not already been adopted;  

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15. Both  the  first  appellate  court  and  the  High  Court  have  

considered  all  the  decisions  relied  upon by the  parties  and  finally  

came to the conclusion that neither the custom has been proved nor  

the factum of adoption has been established by conclusive evidence.  

Normally, the concurrent findings recorded by the two courts need not  

be interfered with unless the findings appear to be perverse in law.  

16. Without going into the question with regard to the custom  

prevalent amongst the Jats to take in adoption a married man having  

children, the evidence which has been brought on record goes against  

the plaintiff-appellant on the basis of which  it cannot be held that there  

was a valid adoption.

17. The plaintiff-appellant impleaded his adoptive father Sarup  

Singh  as  defendant  No.1  and  alleged  that  he  was  adopted  by  

defendant  No.1.   Curiously enough,  defendant  No.1,  the so called  

adoptive  father, contested the  suit by filing written statement making  

an averment that he never adopted him as his son.  If the adoptive  

father himself asserted  that he never took the appellant in adoption,  

the court cannot come to the conclusion that appellant was taken in  

adoption by defendant No.1.  It is strange enough that when during the  

pendency of the case defendant No.1 adoptive father died the plaintiff-

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appellant  who claims himself  to be the adopted son has not  even  

performed the last ritual and other ceremonies of the deceased.  It has  

also  come  in  evidence  that  during  the  period  when  the  alleged  

adoption took place, the appellant’s natural father was Sarpanch  of  

the village and the register which was produced in court to show that  

there was some entry with regard to adoption remained with the said  

Sarpanch.   Apart  from that,  defendant  No.1 adoptive  father  in  his  

detailed written statement has denied each and every allegation and  

claimed to be in cultivating possession of the land and further denied  

that the appellant ever resided with him in his house or helped him in  

cultivating the land.   The  evidence,  in  our  view,  goes against  the  

appellant and, therefore, it cannot be held that there is perversity in  

the judgment passed by the two appellate courts.

18. In the light of the findings recorded by the two appellate  

courts  and the discussion made hereinbefore,  we do not  find any  

reason to interfere with the judgments passed by the first appellate  

court and the High Court.

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19. For the reasons aforesaid,  we do not  find any merit  in  

these appeals which are accordingly dismissed.

..……………………………J (Surinder Singh Nijjar )

…………………………….J. (M.Y. Eqbal )

New Delhi April 17, 2013

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