IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR PARTITION

Judgment delivered on: November 28, 2006

CS(OS) No.325/1984 & Crl.M.Nos.4742-43/96

Sh. Mahesh Dhingra ... Plaintiff

Through Mr.V.B.Andley, Sr. Advocate,

with Rajinder Mathur & Ms.Lakshita

Sethi, Advocates.

VERSUS

Smt.Kamla Dhingra & Anr. ... Defendants

Through Mr.Sandeep Sethi, Senior Adv.,

with Mr.Harpeet Singh for defendant

No.1.Mr.Sanjay Jain, Senior

Advocate, with Mr.Darpan Wadhwa,

Mr.Kamal Mehta & Ms.Nitika

Agarwal for defendant No.2.

Manju Goel, J.

1. This is a suit for partition and rendition of accounts. The defendant No.2 is the

sister of the plaintiff. They were both born to G.L.Dhingra and Padma Dhingra in

Pakistan before the partition of the country in 1947. The properties of which the plaintiff

seeks partition are in the possession of the defendant No.1, who allegedly married to late

J.D.Dhingra, the brother of late G.L.Dhingra and uncle of the plaintiff and the defendant

No.2. The plaintiff claims that he and the defendant No.2 were adopted in their childhood

by J.D.Dhingra and were, therefore, heirs to the properties of J.D.Dhingra. The plaintiff

and the defendant No.2 at the same time dispute that the defendant No.1 was ever

married or was validly married to J.D.Dhingra. The defendant No.1, on the other hand,

disputes that the plaintiff and the defendant No.2 were ever adopted by J.D.Dhingra and

his late wife, Sheel Dhingra, who happened to be the sister of the defendant No.1. This is

the gist of the entire gamut of the case. It is necessary to state in the beginning that there

are several sets of plaints, written statements and replications as the defendant No.1 had

to contest the plaint as well as the written statement of the defendant No.2. The defendant

No.2 also filed a reply to the written statement of the defendant No.1. The plaintiff also

came out with further facts in his replication and thereafter also amended the plaint. Sans

details, the pleadings as they chronologically appear are given below. The pedigree will

help to understand the relationship of various persons whose names will appear in this

judgment:

“Pedigree Chart

Matwalal Ram (married to Kesra Devi)

(died in 1967)

|

-------------------------------------------------------------------------------------------

| | | |

Karmo Devi (dead) Ganeshi (dead) G.L.Dhingra J.D.Dhingra

(Daughter) (Daughter) (Son)(died 1973) (Son)(died 1984)

(married to (married to (married to (married to

Bansi Narang) C.L.Chandna) (Padma) (Shanta)) (Sushil (Kamla))

| | (died 1947) (died 1973) or Sheel) (Defd.No.1)

------------------------- | | | (died 1968)

| | | | -----|------- |

Sheel Ramesh Suresh| Sarla Mahesh |

| (Defd. No.2)(Plaintiff) |

--------------------------- |

Om Rani JK -------------------

| |

Khamesh Naveen”

Plaint - dated 24.2.1984

2. The brothers, G.L.Dhingra and J.D.Dhingra, with their respective wifes, Padma

and Sheel Dhingra, were settled in Leiah in Lahore and migrated to India following

partition. On migration from Pakistan the family settled at 33/B, Pusa Road, New Delhi.

The plaintiff and the defendant No.2 were being looked after by J.D.Dhingra and Sheel

Dhingra. In or around 1955 G.L.Dhingra being a widower proposed to remarry. Before

G.L.Dhingra remarried, as agreed upon between G.L.Dhingra and J.D.Dhingra, the

plaintiff and the defendant No.2 were given in adoption by G.L.Dhingra to J.D.Dhingra

and his wife Sheel Dhingra and thereafter the plaintiff and the defendant No.2 came to

be known to friends, relatives and to the world at large as children of J.D.Dhingra and

Sheel Dhingra and they ceased to have any right as members of the family of

G.L.Dhingra. Sheel Dhingra died in February, 1968. G.L.Dhingra expired in July, 1973

leaving behind his second wife, Shanta, and two children born from his wedlock with

Smt. Shanta. G.L.Dhingra by his last will had bequeathed all movable and immovable

properties to his second wife, Shanta, to the total exclusion of the plaintiff and the

defendant No.2. In or around 1973, the defendant No.1, the real sister of Sheel Dhingra, a

mother of five children, aged about 53 years started living with J.D.Dhingra. The

defendant No.1 claimed to have obtained a decree of divorce from her previous husband,

Prof. Gupta, and has been holding out to have remarried J.D.Dhingra. No issue was born

out of the alleged wedlock between the defendant No.1, Kamla Gupta, and J.D.Dhingra.

The defendant No.1 accepted the plaintiff and the defendant No.2 as children of

J.D.Dhingra. J.D.Dhingra acquired various properties of considerable value during his

life time. He died intestate on 8.11.1983. The properties left behind by J.D.Dhingra are

set out in Schedule A to the plaint which devolved completely and absolutely on the legal

heirs and successors left behind by J.D.Dhingra in equal share. The same are required to

be divided equally between the parties to this suit. Apart from the properties set out in

Schedule A there are other properties and the plaintiff is making his best efforts to

identify those properties. At the time of death of J.D.Dhingra the plaintiff was living in

United States of America and the defendant No.2 at Bombay with her husband. The

defendant No.1 has been managing the properties left behind by J.D.Dhingra on account

of the absence of the plaintiff. The defendant No.1 has not given any returns to the

plaintiff from any of the properties. She has been selling off various properties and has

been acting to the detriment of the interests of the plaintiff. It is, therefore, necessary that

all the properties of J.D.Dhingra be partitioned and the defendant No.1 be made liable to

render truthful and correct account of all the properties and accretions thereto. The

defendant No.1 has failed to comply with the requisitions made by the plaintiff for

partition and accounts. The properties left behind and given in Schedule A would

approximately value Rs.50 lakhs and the income expected by the plaintiff out of the

accruals from those properties is to be Rs.5 lakhs, on which fixed court fees have been

paid. Hence, the suit for a decree for partition by metes and bounds and for a declaration,

that the plaintiff is entitled to joint enjoyment of usufructs of the properties which cannot

be partitioned by metes & bounds and for a decree for rendition of accounts. The

properties in respect of which the partition & rendition of accounts have been claimed are

given in Schedule A. The Schedule is reproduced below:

“SCHEDULE 'A'

ASSETS MOVEABLE AND IMMOVABLE BELONGING TO SHRI J.D.DHINGRA

1. A Bungalow at B-24, Defence Colony, New Delhi having one ground and one

upper floor and a Barsati.

2. A plot of land at Faridabad adm.500 sq.meters.

3. A plot of land at Gurgaon adm.500 sq.meters.

4. 75% interest in the partnership business of M/s. Envoys Electronics, which has a

factory, plant, machinery, land and buildings at A-21/23, Naraina Industrial Area, Phase

II, New Delhi-110023.

5. 100% Equity shares of M/s. Envoys India Pvt. Ltd. at A-21/23, Naraina Industrial

Area, Phase II, New Delhi 110 028.

6. Industrial Plot at Dundahera, Haryana.

7. Several other properties including shares of Escorts – (market value over Rs.7

lacs) and other Companies, shares, securities, ornaments etc.”

Written statement of the defendant No.1 -dated 9.5.1984

3. The suit is not maintainable in its present form. The suit has been signed, verified

and filed by a incompetent person, who is an alleged attorney. The plaint is not properly

verified. The suit lacks in material particulars inasmuch as the date of birth, alleged date

of adoption, particulars of the adoption have not been set out in the plaint. The plaintiff

and the defendant No.2 were children of G.L.Dhingra & Padma Dhingra and have forever

continued to be so. J.D.Dhingra's wife was Sushil Dhingra and not Sheel Dhingra and the

plaintiff is not even aware of the correct name of the first wife of J.D.Dhingra. On

migration J.D.Dhingra and G.L.Dhingra were in joint business and were living at 33/B,

Pusa Road. J.D.Dhingra and G.L.Dhingra had been living in the joint family and the

plaintiff and the defendant No.2 being the children of that family all the adults of the

family took care of them. G.L.Dhingra remarried for the sake of the plaintiff and second

defendant in or around 1956 and there was no decision or agreement between the two

brothers as well as Sushil Dhingra about giving or taking in adoption of the plaintiff and

the defendant No.2. There was no adoption of the plaintiff and the defendant No.2 by

J.D.Dhingra and his wife. The proposal of G.L.Dhingra to remarry brought remorse to

late J.D.Dhingra and Sheel Dhingra who were opposed to the marriage and the opposition

led to a division between the two brothers in respect of their joint business & properties

and thereafter the two parted company. In the partition the House No.33/B, Pusa Road

fell to the share of G.L.Dhingra. J.D.Dhingra and his wife moved to 104, Golf Links,

New Delhi. J.D.Dhingra started dealing in electronic items under the name and style of

M/s. Envoys India Pvt. Ltd. from the Golf Link house and his business of insurance was

set up under the name and style of J.D.Dhingra & Company run from the said house. This

event of partition took place in 1956. J.D.Dhingra had got the plaintiff admitted in

St.Colamba's School as guardian but subsequently G.L.Dhingra removed the plaintiff

from the school and admitted him in Mayo College in Ajmer where the plaintiff studied

upto 1962. The question of adoption of the plaintiff and the second defendant could not

arise as no Hindu would give his only son in adoption. The alleged adoption of the

plaintiff and the defendant No.2 could not have been the cause of G.L.Dhingra

bequeathing his properties to his second wife. The defendant No.1 was the duly married

wife of J.D.Dhingra. The marriage took place on 7.10.1973. She had obtained a divorce

from her earlier husband from whom she had five children. The plaintiff in his legal

notice dated 17.1.1984 admitted the defendant No.1 to be the wife of J.D.Dhingra.

J.D.Dhingra did not treat the plaintiff and the defendant No.2 to be his adopted children

although he extended a helping hand to both of them whenever there was any such need.

J.D.Dhingra played the role of the father for the marriage of the second defendant as

G.L.Dhingra vehemently opposed the marriage of the defendant No.2. Not all the

properties mentioned in Schedule A belonged to J.D.Dhingra. One of the properties,

namely, a plot of land bearing No.2758, Sector-8, Faridabad held in the joint name

actually belonged to defendant No.1 while J.D.Dhingra was only a benamidar. She is

making efforts to get all the other properties transferred to her name in the official

records. The plaintiff is a Canadian citizen now married, third time, to Mary Joe, an

American citizen. His Indian passport carried the name of G.L.Dhingra as his father. As

J.D.Dhingra stood by everyone at times of stress and strains he was popular, particularly

with the younger generation, on account of which he was also known as `papa' amongst

the younger ones and `JD' to his contemporaries and he was termed as `Jagat Papa' by

the family. The defendant No.1 is in complete control of the assets left behind by

J.D.Dhingra. The assets belong to her and, therefore, there is no question of her acting to

the prejudice or detriment of the plaintiff. The plaintiff is only trying to take undue

advantage of the solitary event of his admission to St. Columba's school by J.D.Dhingra.

The plaintiff has no interest of any kind in the properties left b_hind by J.D.Dhingra nor

did the plaintiff ever demand any partition. The valuation of the property given in the

plaint are incorrect and the suit is liable to be dismissed.

Additional Pleas

4. The record of the Mayo College, Ajmer shows the plaintiff as the son of

G.L.Dhingra. The plaintiff took admission at Ramjas College, Delhi where the address of

his father is given as G.L.Dhingra, 157, Golf Links, New Delhi. J.D.Dhingra never

declared himself to be the adoptive father of the plaintiff and the defendant No.2.

Whenever any question was specifically put to him in any document or application form

he specifically declared that he had no children and that he had not adopted anyone. Such

declaration could be found in the loan application form of the Life Insurance Corporation

of India. His income-tax returns always showed that he had no children although such a

declaration would have reduced the incidence of tax. On the other hand the plaintiff

declared G.L.Dhingra to be his father in the passport and related documents. J.D.Dhingra

claimed himself to be the sole surviving heir of Sushil Dhingra which also showed that

J.D.Dhingra had never adopted either the plaintiff or the defendant No.2. The plaintiff did

not perform the last rites of Sushil Dhingra. In the documents relating to his Life

Insurance Policy J.D.Dhingra left the column of children blank. The plaintiff was married

to Judy Lane in 1971 at his father's house 157, Golf Links. The defendant No.2 was

admitted to Miranda House in July, 1960 as the daughter of G.L.Dhingra and the address

given therein was 64, Regal Building, New Delhi. The defendant No.2 has also been

referred to as the daughter of G.L.Dhingra in various other important documents under

the signature of other members of the family particularly her father-in-law, Chaman Lal

Chandna. The factum, the legality and the admissibility of the alleged adoption are

denied.

5. The defendant no.1 in para-12 of her written statement has stated that late

Mr.J.D.Dhingra, at the time of death, had owned following properties out of the

properties mentioned in Schedule-A annexed to the plaint:

“1. Residential House No.B-24, Defence Colony, New Delhi, constructed in the manner

stated.

2. A plot of land bearing No.275, Sector VIII Faridabad, measuring 350 sq.yards

jointly with the answering Defendant as co-owner.

3. A plot of land bearing No.184, Sector 14 Gurgaon, measuring 525 sq.yards jointly

with the answering defendant as co-owners.

4. 75% interest in M/s Envoys Electronics.

5. 905 equity shares of M/s Envoys (India) Pvt. Ltd. (since transferred and held by

the answering defendant before filing of suit).

6. Industrial Plot at Dunda Hera Haryana.

7. 10259 shares in Escorts.

8. 28 shares in Bajaj Auto.”

Written Statement of the defendant No.2 -dated 18.5.1984

6. Most of the averments in the plaint are admitted. The performance of marriage

ceremony of the defendant No.2 and the admission of the defendant No.2 in school by

J.D.Dhingra unequivocally establish that she was the adopted child of J.D.Dhingra. The

defendant No.1 being a Hindu married lady could not have married J.D.Dhingra. The

defendant No.2 is not aware of all the properties left behind by J.D.Dhingra since she is

married and has been living in Bombay. The defendant No.1 was not validly and legally

divorced from her earlier husband, Prof. Gupta. The defendant No.2 and the plaintiff are

entitled to half share each in the estate of late J.D.Dhingra and, therefore, a decree for

partition be passed with further direction to the defendant No.1 to render accounts.

Replication of the plaintiff to the written statement of the Defendant No.1 - dated

18.7.1984 (in addition to reiteration of the plaint)

7. When the plaintiff's natural mother died he was about 10 months old while the

defendant No.2 was 4 years 10 months old. The entire family lived as joint family at 33-

B, Pusa Road, New Delhi, J.D.Dhingra and his wife took complete care of the plaintiff

and the defendant No.2 as their natural parents, G.L.Dhingra in his 20's was unable to

take care of the two children. It was decided by the entire family that G.L.Dhingra should

start life afresh by getting married. While the marriage proposal was under consideration

the family including the parents of J.D.Dhingra and G.L.Dhingra suggested that the two

children be adopted by J.D.Dhingra and his wife. The relationship between the two

brothers, G.L.Dhingra and J.D.Dhingra, became strained sometime around 1956 which

led to a partition of assets between them and G.L.Dhingra made an attempt to take back

the plaintiff and the defendant No.2 from J.D.Dhingra but the adoption was irrevocable.

G.L.Dhingra remarried in the year 1955. In March, 1956 the plaintiff and the defendant

No.2 were put in boarding school in Nainital by J.D.Dhingra acting as father for the two

children in both the schools. However, subsequently the plaintiff was withdrawn from the

school at Nainital and admitted at Mayo College at which point of time G.L.Dhingra gave

his name as the father of the child. The defendant No.2 also was subsequently admitted to

Miranda House College in 1960 when G.L.Dhingra gave his name as the father of the

defendant No.2. During their college studies both lived in hostels and in vacations lived

with their grand-parents at 157-A, Golf Links, New Delhi, an annexe of 157, Golf Links

(residence of G.L.Dhingra) but did spend time with the adoptive parents. J.D.Dhingra,

performed the ceremony of `kanyadan' of the defendant No.2 in 1963. The two brothers

eventually reconciled and by way of reconciliation the elder brother suggested that the

plaintiff's wedding and reception be held at 157, Golf Links, the house of G.L.Dhingra.

At the second marriage of the plaintiff the invitation cards were issued on behalf of

J.D.Dhingra and the defendant No.1 as the parents. Since record of the school showed

G.L.Dhingra as his father, there was no choice but to mention the name of G.L.Dhingra

as his father in his application for passport. The divorce of the defendant No.1 with

Prof.M.K.Gupta is denied.

8. The adoption had been reduced to writing and a deed of adoption was executed

which was witnessed by K.L.Ram Pal, C.L.Chandna and Smt. Karmo Devi Narang. The

original deed was in the possession of J.D.Dhingra.

Reply of the the defendant No.2 to the written statement of the defendant No.1 -dated

28.7.1984 (in addition to reiteration of her earlier written statement)

9. The defendant No.1 at the time of adoption being the real sister of the wife of

J.D.Dhingra had also accepted the plaintiff and the defendant No.2 as the children of

J.D.Dhingra and his wife and G.L.Dhingra had agreed to remarry only because the two

children had already been adopted and being taken care of by J.D.Dhingra and his wife.

The defendant No.2 was admitted to the Convent of Jesus & Mary as early as in the year

1949 when her parentage was given as the daughter of J.D.Dhingra. J.D.Dhingra had

taken her to Nainital in the year 1956 and got her admitted to Sherwood College in his

capacity as the father. In 1960 she was admitted in Miranda House College when she

lived in the hostel and during vacation she lived with her grand-parents but spent major

part of the time with the adoptive parents to nurse Smt. Sheel Dhingra, who by then was

not keeping well. J.D.Dhingra and Smt.Sheel Dhingra considered the plaintiff and the

defendant No.2 as their children from 1948-49 although the formal adoption ceremony

took place on 28.9.1954. The defendant No.1 frequently came from Chandigarh for living

with Smt.Sheel Dhingra and J.D.Dhingra on the pretext of taking care of her sister, Smt.

Sheel Dhingra, and even after the demise of Smt. Sheel Dhingra continued to visit the

family to which the mother of J.D.Dhingra took strong exceptions. After demise of Sheel

Dhingra, the defendant No.1 also lived with J.D.Dhingra at Nainital and thereafter started

living almost all the time with J.D.Dhingra unmindful of her own family at Chandigarh.

The defendant No.1 could not have married J.D.Dhingra during the subsistence of her

earlier marriage. The allegation that J.D.Dhingra had to _ct as father in her marriage

because G.L.Dhingra was opposed to her marriage as her husband was her first cousin is

wrong.

10. Even after her marriage she had been treated as the daughter of J.D.Dhingra and it

was in his house that she delivered her first child. J.D.Dhingra looked after the properties

standing in her name. The plaintiff and she are the only legitimate heirs of late

J.D.Dhingra. The allegation of the defendant No.1 regarding documentary evidence of

J.D.Dhingra not having any child were either false or without any consequence.

Counter/Reply of the defendant No.1 to the Written Statement of the defendant No.2 -

dated 14.8.84 (in addition to reiteration of her earlier written statement)

11. No school leaving certificate ever declared J.D.Dhingra as the father of the

defendant No.2. G.L.Dhingra did not even attend the marriage of the defendant No.2. Nor

did the plaintiff. In view of their opposition to the marriage, it was J.D.Dhingra who

performed the marriage as the father of the defendant No.2. The second defendant herself

filled up the admission form of Miranda House wherein G.L.Dhingra was recorded as the

father and the same was signed by G.L.Dhingra. In the record book of Pandit Shyam

Sundar of Haridwar G.L.Dhingra got recorded that he had two sons and two daughters

and named the plaintiff and the defendant No.2 as his children and J.D.Dhingra on his

visit to Haridwar gave the name of the plaintiff as well as the children born to

G.L.Dhingra from his second marriage as children of G.L.Dhingra. The second defendant

could not have been given or taken in adoption as per law prior to the coming into force

of Hindu Adoption and Maintenance Act, 1956 and the adoption would be void. The last

rites of J.D.Dhingra was performed by Gulshan Chandna, a nephew of late J.D.Dhingra.

The plaintiff and the second defendant have no right to seek partition and the claim of the

defendant No.2 is liable to be dismissed.

Amended plaint – dated 27.1.1986 (additional facts pleaded)

12. The adoption ceremony of the plaintiff and the defendant No.2 took place on

28.9.1954 at 33/B, Pusa Road, New Delhi which was attended by the entire family and

friends and a deed of adoption was executed which was witnessed by Matwala Ram

Dhingra (father of G.L.Dhingra and J.D.Dhingra), K.L.Ram Pal & Harnam Singh Myer

and the ceremony was witnessed amongst others by Smt. Karmo Devi Narang and

C.L.Chandna. The original deed was in possession of J.D.Dhingra and should now be in

possession of the defendant No.1.

Written statement of the defendant No.1 to the amendment in the plaint - dated 31.1.1986

(Reply to additional facts)

13 .There was never any ceremony nor any giving or taking of the children and there

can be no question of any Adoption deed being executed. The story of an adoption deed

is an after-thought and concoction. Affidavits of certain witnesses had been taken by the

plaintiff in support of the adoption in order to bind them down to their versions for the

future.

Written statement of the defendant No.2 to the amended plaint - dated 20.2.1986 (in

addition to the reiteration of her earlier written statement)

14. The defendant No.1 was not a Hindu at the time of her marriage with J.D.Dhingra

as she had already embraced Islam. Obtaining of a divorce decree by the defendant No.1

is denied. The defendant No.1 was not legally and validly divorce.

15. The following issues were framed for trial on 31.11.1984:

“1. Whether the plaint has been signed, verified and filed by a competent person?

OPP

2. Whether the plaintiff and defendant No.2 are the adopted son and daughter of Shri

J.D.Dhingra? If so to what effect? OPP

3. Whether the plaintiff and defendant No.2 have been known, accepted and

regarded by Shri J.D.Dhingra, defendant No.1, friends and relatives as the children of

Shri J.D.Dhingra? If so to what effect? OPP

4. Whether the plaintiff and defendant No.2 ceased to have all rights, title and

interest in the property of their natural father, Shri G.L.Dhingra? OPP

5. Whether the defendant No.1 has obtained divorce from Professor N.K.Gupta? If

not to what effect? OPD.1.

6. Whether the defendant No.1 is the legally wedded wife of Shri J.D.Dhingra?

OPD.1.

7. Whether the plaintiff and defendant No.2 are entitled to the partition of the

property in suit? If so what are their shares and in which properties? OPP

8. Is the defendant No.1 liable to render accounts? OPP

9. Relief”

The following additional issue was framed on 6.3.1985:

“(1) Whether suit of the plaintiff is barred by time?”

On that day issue No.6 was re-framed as under:

“Whether defendant No.1 is not the legally wedded wife of Shri J.D.Dhingra?OPD2”

ISSUES NOS.5 & 6

16. The plaintiff in the plaint disputes the factum of marriage of the defendant No.1

with J.D.Dhingra. Nonetheless, the plaintiff says in paragraph-12 of the plaint “the said

properties left behind by Shri J.D.Dhingra are to be divided equally between the parties

to the suit.” As such, the plaintiff admits the share of the defendant No.1 to the extent of

one third, which can be possible only if the defendant No.1 was the wife of J.D.Dhingra.

17. The defendant No.2 is also interested in disputing the marriage. Instead of

disputing the factum of marriage, she disputes its validity. In paragraph-8 of the written

statement, she says, “It is denied that the defendant No.1 being a Hindu married lady

could legally marry or ever married the adopted father of this defendant during the

subsistence and continuance of her previous marriage with one professor Mr.Gupta.”.

The defendant No.2 filed her reply to the written statement of the defendant No.1 where

she again denied that the defendant No.1 could marry J.D.Dhingra during the subsistence

of her earlier marriage. She has come out with further allegations that Sheel Dhingra

(Sushila Dhingra) wife of J.D.Dhingra remained seriously ill for several years before she

expired in February, 1968; that the defendant No.1 started frequently coming from her

home at Chandigarh to Delhi and lived with the family of J.D.Dhingra on the pretext of

taking care of her ailing sister; that after demise of Sheel Dhingra, the visits of the

defendant No.1 became more frequent, that the mother of J.D.Dhingra, who at that time

was living with J.D.Dhingra, strongly disapproved the visits of the defendant No.1 and

her stay in that house, which led to altercations between the defendant No.1 and the

grandmother, that after the death of Sheel Dhingra, the defendant No.1 accompanied

J.D.Dhingra to Nainital and that thereafter she started living with J.D.Dhingra. She

denied that the defendant No.1 had obtained a decree of divorce from her previous

husband. In the written statement to the amended plaint she further disputes the decree of

divorce. She pleaded, “The answering defendant without in any way admitting, denies

and disputes the alleged obtaining of a decree of divorce by the defendant No.1 from her

previous husband.” She further pleaded, “The answering defendant denies and disputes

that the defendant No.1 is entitled to any share of the properties left behind by the

deceased J.D.Dhingra or that she was validly and legally divorced by her earlier husband

Professor Gupta or that she was legally and validly married to Shri J.D.Dhingra.” The

plaintiff in his long statement in the witness box did not at all dispute either the factum or

the validity of the marriage of the defendant No.1 with J.D. Dhingra. Only statement

about the defendant No.1 in his testimony in chief is, “I always addressed Mrs.Kamla as

Kamla Aunty. I continued addressing Kamla Dhingra as Kamla Aunty even after her

marriage with J.D.Dhingra.” Apart from admission of the plaintiff, there are other

witnesses of the plaintiff as well as testimony of the defendant No.2 as proof of marriage

of the defendant No.1 to J.D.Dhingra. D1WC2, Pt. Ram Krishan, a Priest, who tied the

holy knot on the marriage of J.D.Dhingra & the defendant No.1 on 7.10.1973 has proved

the marriage. PW-4 Karam Devi has also stated in her cross-examination that

J.D.Dhingra married the defendant No.1 on 7.10.1973 which she attended. Both the

witnesses also state that the plaintiff and his wife were present on that occasion. Thus the

factum of marriage of the defendant No1 with J.D.Dhingra is more than sufficiently

established.

18. The defendant No.2 has raised two questions. The first is whether the marriage of

the defendant No.1 with her erstwhile husband Professor Gupta had ever come to an end

by a decree of divorce. The second is whether the decree of divorce was valid. The first

question is immediately answered when the defendant No.1 produces the decree of

divorce dated 18.7.1972, which is Exhibit D1W6/16. The defendant No.1 disputes the

validity of the decree of divorce. Unfortunately, in her pleadings she does not give any

ground on which the validity of decree of divorce can be disputed. Her objection is like a

stone thrown in the dark. Mr.Sanjay Jain, Senior Advocate appearing for the defendant

No.2, made an attempt to make out a case of fraud for challenging the validity of decree

of divorce. This challenge is not based upon any positive evidence of facts. Nor is it

based upon any positive pleading of fraud. In order to allege fraud, there has to be

specific plea of fraud and in fact, the pleadings should also give details as to how the

fraud has been played or perpetrated. The provision of Order 6 Rule 4 of the Civil

Procedure Code provides guidance to how fraud/collusion has to be pleaded. Order 6

Rule 4 CPC reads as under:

“4. Particulars to be given where necessary.- In all cases in which the party pleading

relies on any misrepresentation, fraud, breach of trust, wilful default, on undue influence,

and in all other cases in which particulars may be necessary beyond such as are

exemplified in forms aforesaid, particulars (with dates and items if necessary) shall be

stated in the pleading.”

19. The Supreme Court in Varanaseya Sanskrit Vishwavidyalaya & Anr. vs. Dr.

Rajkishore Tripathi & Anr. reported as (1977) 1 SCC 279 (284) opined that the general

allegations are insufficient to even to amount to an averment of fraud of which any Court

ought to take notice, however strong the language in which they are couched may be.

20. The defendant No.2 appeared in the witness box as D2W2. In her statement, she

substantiated the pleas regarding the visits of the defendant No.1 to the house of

J.D.Dhingra during the illness of his first wife and thereafter her continued visits after the

death of J.D.Dhingra's first wife followed by her co-habitation with J.D.Dhingra. The

following part of her testimony-in-chief is of importance:-

“Q. In what capacity, was defendant No.1 living with Shri J.D.Dhingra?

Ans. She was just living with Shri J.D.Dhingra. She had not married with Shri

J.D.Dhingra. She was definitely not living with Shri J.D.Dhingra as his wife. Mrs.

Kamla Gupta had not divorced her husband Professor N.K.Gupta. He rather used to

protest on living of defendant No.1 with Shri J.D.Dhingra.”

In another part of testimony, she has the following to say:-

“Q. What share you are expecting from defendant No.1 out of Court by way of out of

Court settlement?

Ans. Smt. Kamla Gupta states that she had no right and we would inherit everything but

my husband told Kamla Dhingra that as she was living with Mr.J.D.Dhingra despite

whatever the relationship was, he will see that she also at least gets one-third share. I

agreed with my husband”

In her cross-examination, she is asked as to on what basis, she says that the

defendant No.1 had not divorced her earlier husband and her answer was as under:-

“I deny that Kamla was married to Shri J.D.Dhingra. I have no knowledge whether

defendant No.1 got divorce from her husband or not....... I did not make any effort to find

out whether defendant No.1 was divorced by her husband or not as it was none of my

business. I do not think that I have made any enquiries till date.”

21. Therefore, even in her testimony, the defendant No.2 does not make any

allegations of any kind about the validity of the divorce decree. Hers is only a denial of

existence of the decree of divorce as well as denial of marriage. As stated earlier, there is

evidence of both, namely, marriage as well as of the decree of divorce.

22. Nonetheless it will be worthwhile to notice the basis of the pleas raised by learned

counsel for the defendant No.2. The defendant No.1 appearing as D1W6 states on oath

that the divorce petition was filed by her husband Prof. N.K.Gupta. She said that she had

embraced Islam in 1972 and her husband had sought divorce on this ground. After

leaving Chandigarh residence, she had come to Delhi and took up a job and had also

started staying in Delhi. She says that she later embraced Hinduism at Arya Samaj

Mandir on 29.6.1973 and the ceremony of reconversion to Hinduism was performed by

Pandit Ram Krishan. On conversion to Islam, she called herself Kauser and on

reconversion, she regained her own name Kamla. The plaintiff, who in fact admits the

marriage and has not disputed the validity thereof, cross-examines the defendant No.1 on

this aspect. The defendant No.1 deposes that she embraced Islam because she had some

friends, who had embraced Islam and appeared to her to be happy and she presumed that

she would get solace if she also embraced Islam. At that time, she was living separately

from her children and was not at peace. She has described how she got converted. She

says that she along with her friends Nazma and Indrish Dehlvi went to Jama Masjid

where she was made to recite Kalma and then was declared to be Muslim. She says that

she did not get her conversion to Islam publicized. She was neither Sunni nor Shia nor

does she know the difference between Sunni and Shia. She saw the holy Quran when she

was converted, but she did not carry the Quran home. She says that she remained

converted to Islam from 1972 to 1973 during which period she did not represent herself

by her Hindu name. She has given the address of the two friends Nazma and Indrish

Dehlvi, who were her friends ever since college days. She has denied the suggestion that

she became a Muslim only in order to get a divorce. She admits that she got converted to

Hinduism because J.D.Dhingra wanted her to become a Hindu.

23.Mr.Sanjay Jain does not dispute the conversion to Islam and reconversion to

Hinduism. No suggestion is put to the defendant No.1 that she actually did not get

converted to Islam. Nor is there any suggestion that she did not reconvert to Hinduism.

Pandit Ram Krishan has appeared in the witness box as D1WC2. He says that he was

told by the defendant No.2 that the Muslim religion did not appeal to her and that she

herself wanted to reconvert to Hinduism. He is questioned about the ceremony performed

on reconversion. He was also the Priest for performing the marriage between the

defendant No.1 and J.D.Dhingra. Thus her conversion to Islam was a fact. This could

give rise to a genuine ground for divorce and if a decree of divorce was granted on that

basis, the decree cannot be said to be bad.

24. The defendant No.1 has given her reasons for conversion. It is a question of an

individual's judgment as to whether conversion to another religion would give peace of

mind. In any case not every person, who converts into another religion, has a rational

reason for conversion. Strictly speaking, a man need not subscribe to any particular

religious view and need not be a member of any religious community for the purpose of

either pursuing his search for Truth or for pursuing his search for happiness. Yet for

various spiritual and secular reasons, people convert from one religion to another. Those

conversions do not become bad because others do not look upon the cause of conversion

as rational or reasonable. It cannot be said that the conversion did not take place because

the petitioner did not carry a Quran from the Masjid. Neither a Muslim, who does not

carry a Quran nor a Hindu, who does not possess Gita, ceases to be a Muslim or Hindu.

Learned counsel for the plaintiff, Mr.V.B.Andley, gives a suggestion that Professor

Gupta, J.D.Dhingra and the defendant No.1 were all a party to this arrangement, namely

that sh_ should first embrace Islam and Prof.Gupta would then file a petition for divorce

and after the divorce is granted, the defendant No.1 could marry Mr.J.D.Dhingra. Such a

suggestion could not have been given within the scope of the pleadings of the plaintiff.

Further such a suggestion does not constitute proof. As stated earlier, there is absolutely

no proof that Professor Gupta and the defendant No.1 got into an arrangement under

which the defendant No.1 would convert to Islam and a decree for divorce could be

granted in favour of Professor Gupta on account of such conversion. Without any

positive proof of their being in collusion between the defendant No.1 and Professor

Gupta, the decree for divorce cannot be said to have been obtained by collusion or by

playing fraud on the Court.

25. The pleadings in the divorce petition or the evidence produced before the District

Court, Chandigarh have not been produced before this Court. The ground on which

divorce was applied for, can be proved only by production of the petition for divorce.

One of the basic principles of Evidence Act is that contents of a document have to be

proved by production of the document itself. No effort to get a certified copy of the

document has been made. Even if it is assumed that Professor Gupta used the defendant

No.1's conversion to Islam a ground for divorce, it cannot be said without certainty that

there was no other ground for divorce. In view of the pleas raised by the defendant No.2,

namely, the relationship between the defendant No.1 and J.D.Dhingra and their co-

habitation before marriage, existence of other grounds for divorce being pleaded in the

petition for divorce cannot be ruled out. Apparently, the defendant No.1 herself did not

intend her marriage with Professor Gupta to continue and did not care to defend the

petition for divorce, which led to an ex-parte decree for divorce. The plea of fraud, based

solely on the testimony of the defendant No.1 that she converted to Islam and reconverted

to Hinduism, without any positive proof of their being any collusion between Professor

Gupta and the defendant No.1 and without any proof of fraud having been played upon

Court, cannot stand. Thus there is no strength in the challenge to the validity of the

decree for divorce.

26. On the basis of the above discussion, it can be said with certainty that the

defendant No.1 and her husband Professor Gupta had got divorced prior to the defendant

No.1's marriage with J.D.Dhingra. The marriage of the defendant No.1 with J.D.Dhingra

is admitted and proved. Hence, both these issues have to be decided in favour of the

defendant No.1.

27. Interestingly the plaintiff has raised a question about absence of any pleading

regarding conversion of the defendant No.1 to Islam and her re-conversion to Hinduism

and has raised a plea that her evidence in this regard cannot be read on account of

absence of any pleading. The objection is absolutely without merit. It was sufficient for

the defendant No.1 to prove her divorce by producing the decree for divorce. The

production of decree of divorce is sufficient to discharge the onus on her. It was the

defendant No.2 who in her written statement to the amended plaint raised the plea that the

defendant No.1 was a Muslim at the time of her alleged marriage with J.D.Dhingra. It

was for this reason that the defendant No.1, in order to prove the validity of her marriage,

produced evidence of her reconversion to Hinduism. It was the onus of the defendant

No.2 to establish grounds to challenge the validity of the decree for divorce. The onus

was squarely on the defendant No.2 to prove the ground for divorce as pleaded in the

petition for divorce and to show by further evidence that the decree had been obtained by

collusion.

28. Mr.V.B.Andley, learned Senior Counsel appearing for the plaintiff, has further

said that there is no proof to show that the Judge had fulfilled the requirement of Section

23 of Hindu Marriage Act and that he had satisfied himself that there was no collusion

between the parties. This argument again_has only to be rejected as it was the onus of the

defendant No.2 (not of the plaintiff) to prove that the decree for some reason or the other

was bad.

29. Mr. Andley has further cited judgment of the Supreme Court in the case of Lily

Thomas & Ors. vs. Union of India & Ors. reported as (2000) 6 SCC 224 which held that

change of religion did not dissolve a marriage between the two Hindus and that despite

conversion to Islam the marriage subsists and second marriage of the person converting

to Islam was not legal in law. The ruling has no relevance to the facts of this case. The

ruling applies only where a man converts to Islam and taking benefit of Mohammedan

Law takes another wife during the subsistence of the first marriage. In the present case

the defendant No.1 has been divorced by a decree of the court. She has remarried as a

Hindu. There is proof that she reconverted to Hinduism before her marriage. As proved

by her testimony as well as by the priest, Mr.Ram Krishan, D1WC2. Issues 5 & 6 are

decided in favour of the defendant No.1.

ISSUE NOS.2 & 3

30. The plaintiff claims one-third share in the properties mentioned in Schedule to the

plaint on the basis of his adoption by J.D.Dhingra, who was none other than the younger

brother of his father. Though he makes this claim of adoption in the plaint, he gives no

particulars of any date or ceremony or document. The defendant No.2 does no better and

gives no details of the ceremony of adoption. When the objection regarding absence of

particulars was raised in the written statement, the plaintiff in replication came out with

certain details, which are recapitulated in paragraph 8 above. The replication mentions a

date but no ceremony. On 16.9.1985, the petitioner files an application for amendment of

the plaint. By then issues had been framed and the process of summoning of witnesses

had already been initiated. In the application for amendment, the plaintiff states that the

actual date of adoption was 28.9.1954, which could not have been mentioned in the plaint

as the plaintiff himself was not aware of the date. Therefore, in place of “in or around the

year 1955”, “in the year 1954” is substituted and at the end of paragraph-5 of the original

plaint, the plaintiff adds the facts that adoption ceremony took place on 28.9.1954 at 33-

B, Pusa Road, New Delhi, which was attended by the entire family and friends and deed

of adoption was executed, which was witnessed by Matwala Ram Dhingra, K.M.Ram Pal

and Harnam Singh Myer and further that the ceremony of adoption was witnessed

amongst others by Smt.Karam Devi Narang and C.L.Chandna. He further pleads that the

original deed was in possession of J.D.Dhingra and, after his death, is in possession of the

defendant No.1. How he came to know of the date, the deed and the names of the

witnesses is not mentioned in the application under Order 6 Rule 17 CPC. The plaintiff

filed an affidavit of Mrs. Karam Devi Narang, sister of G.L.Dhingra, dated 24.7.1984 in

which the deponent stated that the plaintiff and the defendant No.2 had been adopted on

28.9.1954 in an adoption ceremony in presence of family members, that a deed of

adoption had been executed and that the same had been witnessed by Matwala Ram

Dhingra and K.M.Ram Pal. This date, thus, surfaced prior to the filing of the amendment

application filed in September, 1989. Although this affidavit is sworn on 24.7.1984, the

amendment application was filed several months thereafter.

31. The defendant No.1's allegation that the plaintiff's story regarding the date and

details of the adoption ceremony including the execution of the deed is an afterthought

cannot be said to be without force. While examining the evidence led by the plaintiff as

well as the defendant No.2 in respect of their adoption by J.D.Dhingra this factum has to

be kept in mind.

32. There are certain other factors, which are to be kept in view while examining the

case of the plaintiff. In the first place, G.L.Dhingra and J.D.Dhingra were real brothers

and were living in a joint family and the children were being properly looked after. The

mother of the two children was dead but they still had their grandmother as well as

Sushila Dhingra @ Sheel Dhingra, the aunt, apart from the father & uncle. There was no

need for any adoption just to enable J.D.Dhingra and his wife to look after the children or

to bring them up in the absence of their mother. The excuse for this adoption is held out

to be need of G.L.Dhingra to be free of the responsibilities of the children as he wanted to

take another wife. The defendant No.1, who could be well expected to be aware of the

affairs of the family at that time being the real sister of J.D.Dhingra's wife, says that the

second marriage of G.L.Dhingra was being contemplated to look after the children, who

had lost their mother. It is claimed that the second wife of G.L.Dhingra had expressed a

desire before marriage that G.L.Dhingra parts with the children. The second wife, the

best witness, unfortunately has not been examined in Court. This allegation is thus not

proved. The plaintiff has failed to prove that there was any need for adoption by

J.D.Dhingra of the two children of G.L.Dhingra.

33. The plaintiff was the only son of G.L.Dhingra. It is very unlikely and very

unusual that the only son of a father is given away in adoption. The origin of the practice

of adoption lies in the spiritual need. The debts owed by a son to the father is discharged

when the son begets a son. The lineage is essential for offering of oblations to the

ancestors. It is the son who delivers the father from the hell called `put' which gives him

the name `putra'. The other reason for adoption as prevailing in certain parts of this

country particularly Punjab was to appoint an heir. Both the spiritual and secular

purposes get lost when the only son of a father is adopted by another man as the natural

father loses his son depriving himself in both the spiritual and secular ways. The

following quotes from the Chapter-XXIII (Adoption) of Mulla's Principles of Hindu Law

can be extracted with profit:

“He whom his father and mother give to another as his son ......... is considered as a son

given, the gift being confirmed by pouring water. - Manu

But let no man give or accept an only son, since he must remain to raise up a progeny for

the obsequies of ancestors. Nor let a woman give or accept a son, unless with the assent

of her lord. - Vasistha.”

34. Two pronouncements on this subject can be noted. One is Addagada

Raghavamma & Anr. vs. Addagada Chenchamma & Anr. reported as

MANU/SC/0250/1963 : AIR 1964 SC 136. Disbelieving the story of adoption of an only

son the Supreme Court said “it is therefore highly improbable, unless there are special

circumstances, that an only son of an elder brother was taken in adoption by his younger

brother; though there is no legal prohibition. It is well known that ordinarily an only son

is neither given nor taken in adoption”. The High Court of Orissa in the case of

Raghunath Behera vs. Balram Behera & Anr. reported as AIR 1996 ORISSA 38

reiterated the view of the Supreme Court expressed in the case of Addagada

Raghavamma (Supra).

35. Another important factor to be kept in mind is that the defendant No.2 was a

female and there are certain specific prohibitions for adoption of a female. The Supreme

Court in the case of M. Gurudas & Ors. vs. Rasaranjan & Ors., JT 2006 (12) SC 447 went

into the question of validity of adoption of a female before coming into operation of

Hindu Adoption & Maintenance Act, 1956. The Supreme Court quoted the following part

from Mayne's Treatise on Hindu Law and Usage, 13th Edition:

“Adoption of daughters Nandapandita in his Dattaka Mimamsa would construe `putra' (or

son) as including a daughter and he draws the inference that on failure of a daughter, a

daughter of another could be adopted. He supports his conclusion by referring to ancient

precedents, such as the adoption of Shanta, the daughter of King Dasaratha by King

Lomapada and the adoption of Pritha or Kunti, the daughter of Sura by Kunti Bhoja. This

view is sharply criticized by Nilakantha in the Vyavahara Mayukha. It is now settled that

the adoption of a daughter is invalid under the Hindu law.

(Emphasis supplied by the Supreme Court)”

36. The Supreme Court further observed in this judgment Section 480 of Mulla's

Principles of Hindu Law which categorically stated that the person to be adopted must be

a male. Although the Supreme Court did not give a final decision on this aspect in this

case, it did hold that prima facie the alleged adoption of a daughter in that case was not

valid.

37. Other judicial pronouncements cited by Mr.Sandeep Sethi, Senior Advocate for

the defendant No.1, in which adoption of a female child has been examined are Lalitha

vs. Parameswari alias Ramabai & Ors. reported as AIR 2001 MADRAS 363, Brejendra

Narayan Ganguly & Anr. vs. Chinta Haran Sarkar & Anr. reported as AIR 1961

MADHYA PRADESH 173 and Balu Sakharam Powar vs. Lahoo Sambhaji Tetgura

reported as (1937) 39 BOM.L.R. 382. In the judgment of Balu Sakharam (Supra)

reference has been made to Mayne's Treaty to note that Mayne pointed out certain

instances of adoption of daughters as found in the Hindu religions. The instance of

adoption of Hindu female is given by Mayne in order to assert that the object of adoption

was not always religious or spiritual and there could be other secular motives behind it.

The final view of Mayne in this regard, however, has been quoted by the Supreme Court

in the judgment of M.Gurudas (Supra).

38. Lalitha (Supra) and Brejendra Narayan Ganguly (Supra) also accepted that there

can be an adoption of a female. However, both judgments have expressed an opinion that

adoption of a female was permissible only when a custom in this regard existed and that

if adoption of a female is alleged a custom will have to be proved.

39. In Lalitha (Supra) the Division Bench of the Bombay High Court observed after

examining various treaties on Hindu Law that prior to Hindu Adoption and Maintenance

Act, 1956 adoption of a female child was not known to Hindu Law and the same was not

permissible. It then observed that the adoption of a daughter could be an exception to the

general rule in Hindu Law depending upon existence of a caste custom.

40 .In Brejendra Narayan Ganguly (Supra) the High Court of Madhya Pradesh

observed that adoption of a girl was not known to general law of Hindu before the Hindu

Adoption and Maintenance Act, 1956 and held the same view that if any claim of

adoption of a Hindu female was made on the basis of a custom, the custom was required

to be proved.

41. However, keeping in mind the principles of Factum Valet despite the general

Hindu Law prevailing prior to 1956, it is necessary to examine the evidence on the issue

of adoption in this case in the light of the above factors. The adoption of the plaintiff and

the defendant No.2 was not sufficiently pleaded in the plaint. As has been stated above,

the plaint originally did not plead the date, the ceremony or the deed of adoption. Neither

does the defendant No.2 fulfill this requirement. The plaintiff's replication mentions only

a deed without particulars of date or any ceremony. The plaintiff then filed the

amendment application to bring in these particulars in the pleadings. The amendment

application does not give the source from which the plaintiff came to know of these

details but does say that these details were not in his knowledge.

42 .The plaintiff obtained an affidavit from Shakuntala Devi Myer, an alleged

witness to the adoption ceremony. She subsequently appears in court as PW-4. In her

very Examination-in-Chief she describes the ceremony but says that she does not

remember the date. The Examination-in-Chief is extracted below to describe the

ceremony as alleged:

“Sh. G.L.Dhingra and Sh. J.D.Dhingra were the friends of my late husband Harnam

Singh Myre. Shri J.D.Dhingra had adopted Maheshi & Sarla Dhingra, defendant No.2.

The adoption ceremony was performed at their house at Pusa Road. I and my husband

were present at the said ceremony. In the presence of few persons the Hawan was

performed and thereafter Sh. G.L.Dhingra gave the hands of Sarla land Mahesh to Sh.

J.D.Dhingra. A document was written in the drawing room of the said house. I do not

know who wrote the document. My husband had signed the said document. Mr. Ram

Paul had also signed the said document. There were about 10 to 15 persons present when

the document was written and signed by my husband and Rampaul. In the evening a tea

party was held in which a number of persons attended. I do not remember the date.”

It is not understood how this witness who volunteered to give an affidavit deposing about

the event of adoption and mentioning the date could subsequently say that she did not

know of the date of the adoption.

43 .Another importance witness of the plaintiff is Smt. Karam Devi, PW-4 (by

mistake both Smt.Shakuntala and Smt. Karam Devi have been numbered as PW-4). She

is the sister of G.L.Dhingra and J.D.Dhingra. She is a natural witness to the alleged event

and, therefore, her evidence is of particular importance. She begins her description of the

event by saying that she did not remember the year or the month when the adoption took

place. She describes the ceremony in the same manner as Shakuntala Devi Myer does,

namely, that there was a hawan and after the hawan was over Matwala Ram, the two

brothers G.L.Dhingra and J.D.Dhingra, the other sister of the two brothers, Ram Pal and

Harnam Singh met and a document was written and signed. This witness had also given

an affidavit in support of the plaintiff's case. This affidavit dated 24.7.1984 is Exh.PW-

4/D1. This affidavit gives the date of adoption as claimed by the plaintiff, i.e., 28.9.1954.

The natural question is how the date could be given in the affidavit if she did not at all

remember the date. Her answer is:

“The date with regard to the adoption was mentioned by me in the affidavit as I knew the

date at that time and also it was written by me somewhere. I do not remember whether it

was written in diary or any other document. I do not possess that document at present.”

One can hardly accept the explanation. If she knew the date on an earlier occasion, there

is no reason why she should not recall it. It is so obvious that the date in the affidavit was

not mentioned by her from her own knowledge. By the contradiction, as seen above, the

witness has made herself unreliable.

44. Before going to the evidence of the other witnesses one can stop to take stock of

the situation. Admittedly 28th September, 1954 was the 8th birthday of the plaintiff. If

the witnesses are to be believed there was a hawan in the morning in presence of guests

including all family members followed by a tea party in the evening. It must have been

quite a memorable day for the plaintiff as well as for the rest of the family. It is not likely

that the `Bua' – father's sister of the two children – could forget the date. Even if the exact

date could not be recalled it is very unlikely that she could not even say that it was the

birthday of the plaintiff. Same can be said about the recollection of the plaintiff and the

defendant No.2. The plaintiff in his own testimony says that he was about 12 or 13 at that

time which, of course, cannot be correct given his year of birth as 1946. The defendant

No.2 being three years older to the plaintiff would have been 11 years by then. It cannot

be believed that even the defendant No.2 could not remember that the event took place on

her brother's birthday. It was not necessary for the plaintiff to gather the information from

the witnesses after the suit was filed and the objection regarding the date etc. was

vehemently pressed by the defendant No.1.

45. The third important witness to prove the adoption ceremony is PW-5, K.L.Ram

Pal. He claims to have known the family ever since they lived in Lahore. He says that he

knew them from 1940-41 and were on visiting terms. He could not remember the name of

G.L.Dhingra's wife but said that the plaintiff and the defendant No.2 were the two

children of G.L.Dhingra. He then says that J.D.Dhingra, who was married at Lahore did

not have any children when the two brothers came to Delhi on partition of the country.

He proceeds to say that G.L.Dhingra remarried in the year 1954 as his wife had died on

her way to India from Pakistan. He says further that before the remarriage the friends and

relatives of the family advised a `transfer' of the children legally to the younger brother

who was already bringing-up the two children. He proceeds to say that on 28.9.1953 the

adoption ceremony took place at the Pusa Road house in a function in which he was

present. He then says that after the religious ceremony the two brothers, the wife of

J.D.Dhingra, the father of J.D.Dhingra and G.L.Dhingra, and another person whose name

he could not recall came to the drawing room where a deed which had already been typed

was signed by the two brothers in his presence and that he also signed the deed as a

witness. On an adjourned date the witness corrected himself by saying that the second

marriage of G.L.Dhingra took place in March, 1955 and the adoption ceremony took

place about 5 or 6 months before the second marriage. He says that it was birthday of

Mahesh which was held in the morning and after the birthday party in the morning there

was hawan and puja. This statement of K.L. Ram Pal is contradictory to the statement of

PW-4 Shakuntala Devi Myer who says that the tea party was held in the evening after the

hawan in the day and not as stated by PW-5 K.L.Ram Pal, i.e., the birthday party in the

morning followed by hawan. He could not remember the other person present in the room

on the occasion when the deed was written. As per the plaintiff's witnesses the other

witness was Harnam Singh. PW-5 himself referring to the marriage ceremony of the

defendant No.2 says that he attended the marriage ceremony of the defendant No.2 which

was held at the residence of a common friend, Harnam Singh, who at that time was living

at Patel Nagar. If PW-5 had information that the marriage ceremony of the defendant

No.2 was held in the house of Harnam Singh and that Harnam Singh was a common

friend he could not have forgotten the name of Harnam Singh, the other person who was

also present on the occasion of the adoption. Coming to his cross-examination there are

other instances where this witness has terribly faltered. Very interestingly he says that he

met the second wife of G.L.Dhingra, Shanta, before her marriage at the residence of

J.D.Dhingra at his Defence Colony house. Admittedly, J.D.Dhingra shifted to the

Defence Colony house sometime in 1964 whereas the marriage of G.L.Dhingra with

Shanta took place in 1955 and, therefore, there could have been no occasion for this

witness to meet Shanta at the Defence Colony house of J.D.Dhingra before 1955. In his

Examination-in-Chief he stats that J.D.Dhingra was married at Lahore but in his cross-

examination he attempts to improve his statement by saying that both the brothers got

married at Rawalpindi.

46. Despite his claim of knowing the two brothers closely right from 1940-41

onwards, in Pakistan and then in Delhi, he has not been able to give important facts about

the family. For example, he is unable to give the educational qualification of J.D.Dhingra

who was a Masters Degree holder although he could give the educational qualification of

G.L.Dhingra who was a Matriculate. He does not remember if the mother of G.L.Dhingra

and J.D.Dhingra was alive in 1948. He gives the details about the education of the

plaintiff and the defendant No.2. His testimony in cross-examination to the effect that

when J.D.Dhingra shifted to Defence Colony and the rest of the family lived in

Nizamuddin the plaintiff and the defendant No.2 came to live with J.D.Dhingra is also

falsified by the testimony of the plaintiff and the defendant No.2 themselves who

admitted that their residence was at Nizamuddin and then at Golf Link rather than at

Defence Colony.

47. It is also interesting to see that this witness also gave an affidavit like the previous

two witnesses, namely, Shakuntala Devi Myer and Karma Devi, and in his affidavit he

gave the date of adop_ion as 28.9.1954. The affidavit is Exh.PW-5/1. When asked in

cross-examination he says that he cannot remember who asked him to sign the affidavit.

Subsequently, however, he recovers saying that the affidavit was brought to him by Sarla,

i.e., the defendant No.2. He says that the affidavit was signed by him at his house in

Delhi. This cannot be correct as the affidavit was attested by Mr. C.L.Mehra, Oath

Commissioner at New Delhi and, therefore, must have been signed before him. There is a

very importance correction on the affidavit which this witness does not own. The original

sentence in question in the affidavit was, “The said document was also attested as a

witness by Smt.Karam Devi Narang and Shri C.L.Chandna”. The word `document' is

cancelled and over it the word `ceremony' has been inserted by pen. If the witness does

not own up this correction the affidavit originally sworn would be that the document was

attested by Smt. Karam Devi Narang and C.L.Chandna. This position is, however, not

confirmed by Smt. Karam Devi Narang and other witnesses as neither C.L.Chandna nor

Smt.Karam Devi Narang were said to be the witnesses to the deed. Interestingly this

affidavit was sworn on 18.7.1984 before the amendment was prayed for in the plaint.

Absolutely no reliance can be placed on the testimony of K.L.Ram Pal for hopelessly

lacking in consistency and for having made statements like his meeting Shanta Dhingra

before 1955 in the house of J.D.Dhingra at Defence Colony which is palpably false.

K.L.Ram Pal is apparently a tutored witness. Reliance of the plaintiff on such a witness

shows a weakness in the plaintiff's case. PW-5 K.L.Ram Pal has shown more enthusiasm

than the other natural witness who could not remember the date of the event of adoption.

It is K.L.Ram Pal and K.L.Ram Pal alone who says that the event took place on the

birthday of Mahesh which could not be recalled by other witnesses. K.L.Ram Pal turns

out to be a tutored, unreliable and false witness. The plaintiff and the defendant No.2

themselves do not claim to have given the date from their own knowledge and memory.

48. It will be interesting to see that the defendant No.2 who failed to give the details

of the adoption ceremony or the deed in her own written statement talks about the same

in her testimony appearing as D2-W2. She gives the date of adoption as 28.9.1954 being

the 8th birthday of her brother. She says that she was about 11-1/2 years old. The hawan

ceremony took place in the morning in which relatives and close family friends were

invited. She says that thereafter G.L.Dhingra gave the hands of her brother and hers to

J.D.Dhingra and his wife Shanta Dhingra and thereafter the document was signed which

was witnessed by her grand-father, Harnam Singh and K.L.Ram Pal. She further says that

in the evening there was a children's tea party. She says that the significance of the

ceremony of 28.9.1954 she has realized only after having grown up now. Born in the year

1943 she was 41 years by the time the plaint was filed. She has not disclosed on which

day she realised the importance of that ceremony. In this respect the following part of her

cross-examination will be interesting to note:

“Q. Between filing of the first written statement on 21st May 1984 and reply to the

written statement of defendant No.1 in July 1984 and filing of the second written

statement to the amended plaint in 1986 who informed you and when about the alleged

adoption deed and the ceremony?

A: Before ansering (sic) this qauestion (sic) I would like to see the written statements

referred to in the question. (The witness has perused the two written statements filed by

her as also reply filed by the witness to the written statement of defendant No.1.). The

persons whose affidavits have been filed informed me about the details of adoption as

given in my written statement filed in the year 1986.”

49. This answer of the defendant No.1 is belied by the testimony of K.L.Ram Pal who

says that the affidavit he swore was brought to him by the defendant No.2. He does not

claim that he gave the details for drafting the affidavit although he says that he signed the

affidavit because the facts written therein were correct. As can be seen, other than

K.L.Ram Pal the other witnesses to the ceremony could not even remember that the date

of adoption happened to be the birthday of the plaintiff. PW-5 K.L.Ram Pal has already

been held to be totally unreliable and tutored witness. Hence there is none who can claim

to have known the date of adoption or can vouch as to what was the ceremony. Since, as

stated above, the members of the family including Smt.Karam Devi and friends like

Smt.Shakuntala Devi Myer could not have forgotten that the date of adoption was the

date of birth of the plaintiff had the event actually taken place and they had attended the

same. Thus the plaintiff's story that such an event took place on his 8th birthday is

altogether false.

50 .Mr.V.B.Andley referring to certain authorities has submitted that no particular

ceremony is necessary to be performed. They are Madhusudan Das vs. Smt. Narayanibai

(deceased) by LRs & Ors. (1983) 1 SCC 35; Lakshman Singh Kothari vs. Smt. Rup

Kanwar AIR 1961 SC 1378; and Kartar Singh (minor) Through Guardian Bachan Singh

vs. Surjan Singh (dead) & Ors. (1974) 2 SCC 559. The submissions of Mr.Andley is

correct. Nonetheless each of the authorities reinforce that a formal giving and taking is

necessary to bring about an adoption. This is what the plaintiff has attempted to prove by

production of these witnesses. He has miserably failed to prove any such giving and

taking.

51. So far as the deed is concerned the same has not seen the light of the day. The

original deed is said to have been kept by J.D.Dhingra. K.L.Ram Pal says that there were

four copies of the document, of which one was given to each of the two brothers, father

and sister. If that be so, at least three of the four copies would be with the plaintiff or his

benefactors. There is no proof as to where these documents have gone and without such

proof no secondary proof of the contents of the documents can be taken.

52. Both parties have filed great deal of documentary evidence which provide

circumstantial evidence of the parentage of the plaintiff and the defendant No.2.

Interestingly in the oldest of the documents J.D.Dhingra has been shown as the father of

the plaintiff, Mahesh Dhingra. The application form for admission to St. Columba's

School is made by J.D.Dhingra, which is exhibited as Ex.PW-6/2. The request made

therein is to admit “my son Mahesh Kumar Dhingra”as a day scholar. The corresponding

application form, Ex.PW-6/1, records the name of J.D.Dhingra in the column of father or

guardian. Admittedly this document is of 1953 when the petitioner was admitted in St.

Columba's School. Thus, interestingly even before the alleged adoption ceremony took

place in the year 1954 J.D.Dhingra gave his name as the father of the plaintiff, Mahesh

Dhingra.

53. The defendant No.2 took her initial schooling from Convent of Jesus & Mary.

The certificate, Ex.D2W-7/1 issued by the Convent of Jesus & Mary says that Sarla

Dhingra daughter of J.D.Dhingra was a student of the school from January, 1949 to 29th

February, 1956. It appears that in 1949 itself J.D.Dhingra gave his name as father of the

defendant No.2. These documents cannot be read as documents in proof of the story of

adoption although it will indicate that the joint family of Matwala Ram, G.L.Dhingra and

J.D.Dhingra was a well-knit family and J.D.Dhingra had been taking care of the two

children of his elder brother relating to their education and upbringing. It will also

indicate that in the subsequent documents if the name of J.D.Dhingra appeared as father

of any of the two that will not necessarily indicate that J.D.Dhingra acted as their

adoptive father. The plaintiff has proved the following documents as indicative of

J.D.Dhingra being his adoptive father. The document, Ex.PW-3/4, is a contract between

M/s. Dhingra Brother (Insurance) Limited, New Delhi and the Norwich Union Life

Insurance Society. The document is dated 24.9.1954. On behalf of Dhingra Brothers the

same is signed by G.L.Dhingra. This document modifies a previous agreement thereby

incorporating the following proviso:

“Provided however that the payment of such commissions shall be subject to evidence

being furnished that Mr. G.L.Dhingra, Mr. J.D.Dhingra and Mrs. Sushil Dhingra wife of

Mr. J.D.Dhingra or one or more of them is alive or that Master Mahesh Dhingra son of

Mr. J.D.Dhingra is alive and under the age of twenty five years when the commission

becomes due and that one or more of them shall continue to be a shareholder or

shareholders in your Company.”

54. Again this document being earlier to the alleged adoption of 28.9.1954 cannot be

indicative of an adoption although it might indicate that J.D.Dhingra was being held out

by G.L.Dhingra to be the father of Mahesh Dhingra, the plaintiff. There is, however,

nothing in this document to show that the document was within the knowledge of

J.D.Dhingra. There is nothing to bind J.D.Dhingra or his successor interest with the

averments noted above.

55. Ex.PW-3/5 is the summary of share capital and shares of Dhingra Brothers

(Insurance) Limited made upto the day of 28th December, 1953. There is a list of persons

having shares in Dhingra Brothers (Insurance) Limited. In this list the plaintiff's name

appears as the son of J.D.Dhingra. This document is dated 28.12.1953. This is another

document of a date earlier to that of the alleged adoption and has to be treated like the

other documents mentioned above. Another Annual Return of the same kind is dated

29.11.1954 being Ex.PW-3/8 wherein also Mahesh Dhingra's name appears as son of

J.D.Dhingra. Ex.PW-3/11 is yet another document of the same nature dated 12.12.1955.

Apart from these early documents, the plaintiff relies upon a photocopy of an invitation

card purportedly issued on behalf of Kamla Dhingra (the defendant No.1) and

J.D.Dhingra. The occasion for invitation given in the card, Ex. PW3/1, is, “To meet &

bless Mahesh (our son) and Susan (daughter of Mr. & Mrs. William A.Sparrow) on their

marriage”. A witness from the Delhi Golf Club is produced to prove that on 13.3.1979

J.D.Dhingra hosted a party. This witness, PW-1 S.Daljit Singh, Chief Accountant, is

unable to say the occasion for which the invitation was issued. Nor is the printed

invitation card, produced from the custody of the plaintiff, can have much evidentiary

value.

56. As against these documents the defendant No.1 has produced a large number of

documents which indicate that the plaintiff and the defendant No.2 were children of

G.L.Dhingra and continued to be so throughout their educational career and their

subsequent lives. Even in the document of M/s. Dhingra Brothers (Insurance) Pvt. Ltd.

the name of the plaintiff appeared as the son of G.L.Dhingra. These documents have been

proved as D1W-6/20 & D1W-6/22. In the letter dated 16.3.1983, J.D.Dhingra writing to

one Kanwal referred to the plaintiff Mahesh Dhingra as his nephew. Similarly the letter

dated 9.5.1962, D1W-6/8, written by J.D.Dhingra refers to the plaintiff as his nephew.

D1W-6/7 is a letter dated 16.5.1968 written by J.D.Dhingra to National Employers'

Mutual General Insurance Association Limited in which he refers himself as the legal

heir of his late wife, Sushil Dhingra, and makes no mention of the plaintiff and the

defendant No.2. Ex.D1W-1/2 is a certificate issued by Miranda House dated 7.4.1984

wherein the defendant No.2 is shown to be a student of that institute from 1960 to 1963

and as per record she was the daughter of G.L.Dhingra. It may be stated here that the

defendant No.2, in fact, claims that in Miranda House College, she was admitted as

daughter of J.D.Dhingra. This claim is not only wrong but also false to the knowledge of

the defendant No.2 as she also signed the admission form of July 1960, D1W-1/1, in

which her father's name G.L.Dhingra duly appears. The form is also signed by

G.L.Dhingra. The document bears the address of 64, Regal Building, which is the

business address of G.L.Dhingra. D1W-6/4 is a letter dated 6.11.1978 written by

J.D.Dhingra in which he refers to Sarla Chandna as the daughter of his brother. D-1/5 is a

certificate from Sherwood College, Nainital, U.P. dated 24.7.1984 certifying that Mahesh

Kumar Dhingra was a student of that institute from March, 1956 to 15.12.1957 where the

name of his father/ guardian was given as J.D.Dhingra, 65, Regal Building, New Delhi.

Similarly for Sarla Dhingra Ex.D-1/6 is a certificate from All Saints College, Naini Tal

which show Sarla Dhingra as having studied in that institute from 1956 to 1958 and the

name of her parent/guardian was J.D.Dhingra. These two certificates show that

J.D.Dhingra had been acting only as the guardian and the did not score out any one of the

two descriptions, namely, father or guardian.

57. D1W-5/15 is an advertisement in the Hindustan Times dated 9.7.1992 informing

the death of Mrs.Naveen Mathur daughter of G.L.Dhingra. In this the plaintiff describes

himself as the brother and the defendant No.2, Sarla Chandana, as the sister of the

deceased thereby acknowledging that they were children of G.L.Dhingra. This newspaper

advertisement is of particular importance because this was issued during the pendency of

the suit.

58. The other important documents in this connection are in the nature of entries in

the books of priests of Haridwar where the family had been going for religious purposes.

Ex.CDW-1/1A is a record from Pandit Shyam Sunder of Haridwar. The entry dated

22.2.1968 mentions the plaintiff and Khamesh as sons of G.L.Dhingra. This entry was

made on the instructions of J.D.Dhingra who visited Haridwar. Ex.CDW-1/C is another

entry made on the instructions of G.L.Dhingra. Herein it is mentioned that the plaintiff is

the son and the defendant No.2 is the daughter of G.L.Dhingra. Similar other entries are

Ex.CDW-1/E, Ex.CDW-1/D, Ex.CDW-1/2A and Ex.CDW-1/2B. In all these entries the

plaintiff and the defendant No.2 have been mentioned as children of G.L..Dhingra.

59. The plaintiff was aware that but for the few initial documents of school all other

documents of importance will show him and his sister as children of G.L.Dhingra. The

passport, for example, was issued to the plaintiff as the son of G.L.Dhingra. The plaintiff

has made an effort to explain this situation in his replication to the written statement of

the defendant No.1. In this connection the following part of the testimony of the plaintiff

is quoted below:

“Q. Who is mentioned as your father in your Passport?

Ans. Sh. G.L. Dhingra.

Q. Please explain the circumstances under which his name appear in your Passport as

your father?

Ans. I am not sure about the exact reason but there can be two explanations. While I

was admitted in Sherwood College, Nainital as Mr. J.D.Dhingra's son the transfer

certificate from Sherwood to Mayo gave no mention of a father. Mr. G.L.Dhingra was

responsible for my admission into Mayo College as previously stated and might have

taken advantage of this to introduce his name as my father. From that my next College

which I had related (sic) to Ramjas College. Mayo College's School Leaving Certificate

clearly mentions Sh. G.L.Dhingra as my father. Subsequently, in Ramjas College it was

mentioned in the same way and later in my Passport. The second explanation would be

simpler which will coincide with the explanation which I just gave you regarding Mr.

J.D.Dhingra having to refer to me as uncle.”

60. As per the allegations in the replication the relationship between the brothers,

namely, G.L.Dhingra and J.D.Dhingra became strained sometime after the adoption and

G.L.Dhingra made an attempt to take the children back, that because of the strained

relations the plaintiff was withdrawn from the school at Nainital and admitted to Mayo

College by G.L.Dhingra who gave his own name as the father of the plaintiff and

similarly the defendant No.2 was withdrawn from All Saints School and later on admitted

to Miranda House College in which he got his own name recorded as father of Sarla

Dhingra. He stated further that despite such difference, G.L.Dhingra eventually

reconciled and allowed J.D.Dhingra to continue to look after the two children. It is

explained further that since the name of the father of the two had appeared in the final

school leaving certificate as G.L.Dhingra on all subsequent important documents that

name had to be given. This may be accepted as a plausible explanation for these

documents but there can be no explanation for the names appearing in the books of

priests for a priest is not dependent upon the certificates and he records whatever is given

to him verbally by his clients. Such entries in the books of priests at places of pilgrimage

were held to be admissible in evidence as proof of relationship in the case of Balak Ram

High School, Panipat & Ors. vs. Nanu Mal reported as AIR 1930 Lahore 579. Similarly

in the case of Mt. Anandi & Ors. vs. Nand Lal & Anr. reported as 1924 ALLAHABAD

575 it was held that a pilgrimage book kept by a bard was admissible evidence of the

pedigree. In the case of Amritsaria & Anr. vs. Prabh Dial & Ors. reported as AIR 1926

Lahore 157 it was held that the entry in the priest's Bahi regarding blood relationship was

admissible. The entries proved in the present case cannot be explained away by saying

that the name of G.L.Dhingra had to be given because of the final school leaving

certificates.

61. The defendant No.2 produced witness, D2W1, an Assistant Administrative

Officer from the Life Insurance Corporation of India and got the document, Ex.D2W-1/1,

proved. This is a letter dated 23.7.1984 issued under the signatures of Mr.R.S.Juneja,

Senior Branch Manager of branch office unit No.117, Jeevan Prakash, 25, K.G.Marg,

New Delhi. As per the recital of this document, Mr. J.D.Dhingra, nominated his daughter

Sarla Dhingra on 28.10.1954 in his life insurance policy Nos.87608340 & 41 but

subsequently changed the nomination in favour of his wife, Smt. Kamla Dhingra, on

23.8.1974. However, the witness himself stated that this letter has been issued against the

record. As per his record in the policy on 28.10.1954 the nomination was in favour of his

wife, Smt. Sushil Dhingra, to whom “all money secured by the within policy should be

paid in the event of my (his) death in pursuance to Section 39 of the Insurance Act,

1938”. He is categorical that no nomination in favour of Sarla Dhingra was made on

28.10.1954 in that policy. On cross-examination this witness further proves another letter

Ex.D1W1/X1 issued on 23.8.1984. The defendant No.1 wrote to the Senior Manager of

Life Insurance Corporation of India on 17.8.1984 after Ex.D2W-1/1 was filed in court.

Her letter to the Senior Manager is D1W-1/X2. The defendant No.1 pointed out in this

letter that the letter dated 23.7.1984 is based on wrong facts since J.D.Dhingra first

nominated Sushil Dhinra and then the defendant No.1 and had actually never nominated

Ms.Sarla Dhingra. The same Senior Manager, R.S.Juneja, then issued letter, Ex.D1W-

1/X1, by way of reply to the letter of the defendant No.1. He clarified that J.D.Dhingra

had initially nominated his brother, G.L.Dhingra, on 12.9.1949 but the same was

cancelled since he raised a loan from the Grindlays Bank. Thereafter on repayment of

loan, the policy was reassigned to the life assured when the nomination was made in

favour of Sushil Dhingra on 28.10.1954 and in favour of Kamla Dhingra on 23.12.1974.

This is an indication how the defendant No.2, in support of the plaintiff's case, attempted

and succeeded in pursuing a senior officer of LIC to issue a letter wherein it was

indicated not only that the defendant No.2 was the nominee of J.D.Dhingra but also that

she has his daughter. Such reliance on false evidence also indicates that the story of the

plaintiff and the defendant No.2 is a concoction.

62. The document, D1W-2/1, which is an application for grant of loan to policy

holders for construction of houses submitted to LIC of India has two very specific

questions the answer to which has direct bearing on the fact in issue. The question Nos.32

& 33 in this documents are as under:

32. Has the applicant any sons, sons' sons or sons' sons' sons? If so, give their names and

present ages.

No.

33. Has the applicant adopted any son or does he contemplate adopting a son?

No.

63. This document carries the date 22nd June. The year has not been mentioned on

the document but from column No.14 it can be ascertained that the document is

subsequent to the alleged date of adoption, i.e., 28.9.1954. The application was for loan

for construction to be carried out at B-24, Defence Colony. It is disclosed in column

No.14 that the President of India granted the lease for 99 years with effect from

31.10.1954. J.D.Dhingra was required to specifically state in answer to question No.33

that he had adopted no one. The answer is categorical `NO'. Since this declaration is

made soon after the alleged date of adoption it has a strong evidentiary value. It belies the

very claim of adoption and also shows that in all important official documents as well as

documents which could have any pecuniary implication of any kind J.D.Dhingra was

categorical that he had no son and also had not adopted any one as his son.

64. The plaintiff and the defendant No.2 claim that they used to address J.D.Dhingra

as `Papa'. This may be true. But is it indicative of the real relationship between them?

The evidence shows that the plaintiff did not actually address the other members of the

family according to the relationship. On a question in his cross-examination the plaintiff,

PW-3, says that he addressed G.L.Dhingra as `Dada'. In the community of the plaintiff,

coming from Lahore or Punjab, Dada stands for grand father. G.L.Dhingra was not the

grand father of the plaintiff and the defendant No.2 either by blood relationship nor by

the alleged story of adoption. Further, Matwala Ram, grand father, must not have been

addressed as Dada. Nor was the defendant No.1 addressed as mother or Mom or

Mummy. She was addressed as `Kamla Aunti' even after her marriage with J.D.Dhingra

which was witnessed by the plaintiff himself. Not much importance can be given to the

fact that the plaintiff and the defendant No.2 called J.D.Dhingra `Papa'.

65. It again does not stand to reason why the plaintiff and the defendant No.2 at no

point of time prior to the present litigation thought it necessary to make the corrections in

the certificates or to take steps to finally declare themselves to be the children of

J.D.Dhingra. The plaintiff became an adult in the year 1964. Both the plaintiff and the

defendant No.2 had been given good education and grew into persons of prudence. As

per the plaintiff's own case G.L.Dhingra wanted to reclaim his own children. His name

was mentioned in all important documents relating to education, passport, business

interests, etc. On attaining majority in 1964 the plaintiff could take steps for getting the

corrections made in the relevant documents. Neither the plaintiff nor the defendant No.2

took steps in this direction. This omission on the part of the plaintiff and the defendant

No.2 also gives an impression that they were not entitled to the status of being the

adoptive children of J.D.Dhingra.

66. DW2/X2 is another important document which not only is an evidence of

marriage of the defendant No.1 with J.D.Dhingra but also of the relationship between

J.D.Dhingra and the plaintiff & the defendant No.2. This is a letter written by M.S.Kohli

who was a partner in Envoys Electronics. The letter is addressed to the defendant No.2.

The letter is reproduced below:

“This has reference to your letter dated 1st August 1984. After the death of my partner in

Envoys Electronics, the late Shri J.D.Dhingra, I entered into a new partnership with Mrs.

Kamla Dhingra, the wife of the deceased. To the best of my knowledge and those of all

his friends and relative present during the last ceremonies after the death of the deceased,

Mrs. Kamla Dhingra was the only heir left behind by the late Mr. J.D.Dhingra. Although

I was free to take any person as my business partner, I took the wife of my late partner

since the possession of the shares held by Late Mr. Dhingra had passed on to his wife

Mrs. Kamla Dhingra. Further I would like to point out that the terms of the new

agreement of partnership were negotiated on behalf of Mrs. Kamla Dhingra by your

husband Shri J.K.Chandna in the presence of friends and relatives and I believe that all

this was within your knowledge.

Thus is is very clear that I had done the most correct and legal thing in entering into

agreement with the wife of my late partner. Hence your charges against me are totally

irrelevant and incorrect.

Regarding the assests (sic) of Late Shri J?D?(sic) Dhingra in Envoys Electronics, since

the matter has already been taken to court as stated by you in you (sic) letter referred

above, I have no comments to make.“

67. This clearly indicates that on the death of J.D.Dhingra neither the plaintiff nor the

defendant No.2 staked any claim as heir on the partnership in the business. It was the

husband of the defendant No.2 who made the necessary negotiations on the basis of

which the defendant No.1 was admitted to the partnership in place of J.D.Dhingra. As

stated in the letter all the friends and relatives of J.D.Dhingra knew that the defendant

No.1 was the sole surviving heir of J.D.Dhingra. The evidence that the defendant No.1

was admitted to be sole heir to the business interest of J.D.Dhingra is also admitted by the

defendant No.2 herself. In her cross-examination she deposed that on the day of `Uthala',

a ceremony after the death of J.D.Dhingra, she along with her husband went with the

defendant No.1 to install her in the seat of J.D.Dhingra in his business place with Mr.

Kohli. She also admits that her husband negotiated the terms with Mr. Kohli and that it

was her husband who negotiated with Mr. Kohli on who should be the partner in place of

deceased J.D.Dhingra. Can she now turn back and say that the defendant No. 1 had no

interest and the entire property of J.D.Dhingra devolved on the plaintiff and herself.

68. On adoption the person adopted becomes a member of the family of the adoptive

father and ceases to have the old relationship with the real father. In the present case,

however, it appears that despite the alleged adoption the plaintiff and the defendant No.2

continued to have the same relationship with G.L.Dhingra as it stood before the alleged

date of adoption. The plaintiff did not shift with J.D.Dhingra when the two brothers

parted company. They continued to live with G.L.Dhingra. Matwala Ram who was the

father of G.L.Dhingra and J.D.Dhingra lived with G.L.Dhingra or in the annexe to the

house of G.L.Dhingra. The plaintiff and the defendant No.2 never lived away from

G.L.Dhingra or Matwala Ram. They lived in the hostels of their respective educational

institutes but they claim that in the holidays they used to live with their grand parents and

did visit J.D.Dhingra and Sheel Dhingra. Refering to the conflict between J.D.Dhingra

and G.L.Dhingra the plaintiff says in his testimony that in 1957 the guardianship of the

two children changed over to the grand father and they were allowed to go to whichever

house they wanted as they were old enough to make their own choice and they continued

to be under direct guardianship of Matwala Ram. He then further says that they used to

spend their holidays with Matwala Ram and were sleeping at his place but spending their

days in J.D.Dhingra's house. After partition between J.D.Dhingra and G.L.Dhingra,

Matwala Ram moved to Nizamuddin and later to 157-A, Golf Link. There is no proof

that Matwala Ram and G.L.Dhingra lived in different accommodations at any point of

time. Admittedly, the plaintiff and the defendant No.2 lived with them. The first marriage

of the plaintiff took place in the house of G.L.Dhingra which the plaintiff does not deny

although he claims that the expenses of the marriage were borne by J.D.Dhingra.

69. Much has been attempted to made of J.D.Dhingra playing the father for the

marriage of the defendant No.2. Defendant No.1's case is that J.D.Dhingra did so because

the defendant No.2 married her first cousin and this was opposed by G.L.Dhingra. PW-4

Karam Devi, the aunt of the plaintiff, herself has confirmed this fact in her testimony.

G.L.Dhingra did not attend the marriage. His absence from the marriage indicates his

opposition to it and the necessity of J.D.Dhingra to act as the father to perform the

mandatory ceremony of `kanyadan'.

70. The burden of proof in matters of adoption lies entirely on the person who alleges

the adoption. Although this follows from the first principles one may refer to the

judgments in the case of A. Raghavamma & Anr. vs. A. Chenchamma & Anr. reported as

AIR 1964 SC 136 and Nilima Mukherjee vs. Kanta Bhusan Ghosh reported as (2001) 6

SCC 660. The situation may be different when the persons interested in denying the

adoptive status of the claimant have been found treating him as adoptive son. The onus

may then shift on the person contesting the claim of being adopted. (Govindram (through

LR's) vs. Ram Gopal & Ors. AIR 1984 Madhya Pradesh 136). In L.Debi Prasad (decd) by

LRs Vs. Smt.Tribeni Devi & Ors., AIR 1970 SC 1286, the Supreme Court ruled that

when the adoptive father and other relations including the plaintiff were found to have

treated the defendant as the adopted son of the deceased adoptive father, the adoption

stood proved. It was further opined in this judgment that in ancient transactions it is but

natural that positive oral evidence will be lacking. Mr.V.B.Andley, Senior Advocate has

placed strong reliance on these judgments. None of the two judgments can rescue the

plaintiff's case. It is so clear, from the evidence narrated above, that J.D.Dhingra did not

treat the plaintiff and the defendant no.2 as his adopted children. In all matters of

pecuniary interest the plaintiff and the defendant no.2 were referred to as children of

G.L.Dhingra. If in letters and invitations and on social occasions, the plaintiff and the

defendant no.2 were occasionally referred to as 'son' or 'daughter', that was only in a

social way and not in a legal way. In any case such reference was not consistent. More

often than not they were described as children of G.L.Dhingra and thus it cannot be said

that those claiming under J.D.Dhingra are required to discharge any onus of proof. The

Supreme Court in the case of Kishori Lal vs. Mt. Chaltibai reported as AIR 1959 SC 504

said that since the adoption results in changing the course of succession from the near

relatives to the relationship created by adoption or to the remote relatives the evidence

should be free from suspicion. It was further held in this judgment that performance of

marriage by the alleged adoptive father would not prove any adoption.

71. Mr.Sethi, Senior Advocate, has drawn the attention of the court to the judgment of

Rahasa Pandiani (Dead) by LRs & Ors. vs. Gokulananda Panda & Ors. reported as

(1987) 2 SCC 338 in which the Supreme Court gave a warning to be careful in dealing

with the allegations of adoptions. In this judgment the earlier judgment of the Supreme

Court in the case of Kishori Lal (Supra) was quoted with approval:

“As an adoption results in changing the course of succession, depriving wives and

daughters of their rights and transferring properties to comparative strangers or more

remote relations it is necessary that the evidence to support it should be such that it is free

from all suspicion of fraud and so consistent and probable as to leave no occasion for

doubting its truth. Failure to produce accounts, in circumstances such as have been

proved in the present case, would be a very suspicious circumstance. The importance of

accounts was emphasised by the Privy Council in Sootragun v. Sabitra; in Diwakar Rao

v. Chandanlal Rao; in Kishorilal v. Chunilal; in Lal Kunwar v. Charanji Lal and in

Padamlal v. Fakira Debya.”

72. The court further said:

“... Be it realized that setting up a spurious adoption is not less frequent than concocting a

spurious Will, and equally, if not more difficult to unmask. And the court has to be

extremely alert and vigilant to guard against being ensnared by schemers who indulge in

unscrupulous practices out of their lust for property. If there are any suspicious

circumstances, just as the propounder of the will is obliged to dispel the cloud of

suspicion, the burden is on one who claims to have been adopted to dispel the same

beyond reasonable doubt. In the case of an adoption which is not supported by a

registered document or any other evidence of a clinching nature if there exist suspicious

circumstances, the same must be explained to the satisfaction of the conscience of the

court by the party contending that there was such an adoption. Such is the position as an

adoption would divert the normal and natural course of succession. Experience of life

shows that just as there have been spurious claims about execution of a Will, there have

been spurious claims about adoption having taken place. And the court has therefore to

be aware of the risk involved in upholding the claim of adoption if there are

circumstances which arouse the suspicion of the court and the conscience of the court is

not satisfied that the evidence preferred to support such an adoption is beyond reproach.”

73. When the evidence in the present case is considered in the light of the warnings

extended by the Supreme Court the case of the plaintiff and of the defendant No.2 only

deserves to be discarded. As mentioned above, the oral testimony in respect of the

ceremony has been found to be untrue. No deed of adoption could be proved by the

plaintiff. The circumstantial evidence is also against the plaintiff and the defendant No.2

since J.D.Dhingra is found to have been representing himself to be the guardian or father

of plaintiff and the defendant No.2 before the alleged adoption which could not have

been the result of adoption and G.L.Dhingra has been representing himself as their father

after the alleged date of adoption. The circumstantial evidence is overwhelmingly in

favour of the defendant No.1 and against the alleged adoption of the plaintiff and the

defendant No.2. Hence there is absolutely no hesitation to hold that the plaintiff has

miserably failed to prove that he and the defendant No.2 were ever adopted by

J.D.Dhingra. These two issues are accordingly decided against the plaintiff and the

defendant No.2.

ISSUE NO.4

74. It is not necessary to answer this issue. The question in this case is whether the

plaintiff and the defendant No.2 have any right in the property left behind by

J.D.Dhingra. For deciding the claim of the plaintiff in the property of G.L.Dhingra, the

litigation has to be between the plaintiff & the defendant No.2 on the one hand and the

other natural heirs of G.L.Dhingra on the other hand. This issue cannot be answered

within the scope of the present suit.

ISSUE NO.1

75. There is no dispute that the suit has been instituted by a duly constituted attorney

on behalf of the plaintiff. The only question raised at the time of argument is that the

attorney having died a fresh Vakalatnama should have been executed in favour of the

Advocate pursuing the litigation. No doubt this could have been the proper course to be

adopted by the plaintiff. Nonetheless since the plaintiff is pursuing this case with all

diligence and the trial has been completed it will not be proper to reject the plaint or to

dismiss the suit on that ground. Issue No.1 is decided accordingly.

ISSUE NOS. 7, 8 & 9

76. The plaintiff is not entitled to any decree for partition. Nor is he entitled to any

decree for rendition of accounts. The suit must fail.

77. There is a peculiarity in the plaintiff's case. The plaintiff in the plaint does not

admit that the defendant No.1 was married to J.D.Dhingra. Admittedly all the properties

left behind by J.D.Dhingra were being managed by the defendant No.1 at the time of

death of J.D.Dhingra. The plaintiff instead of filing a suit for declaration of title &

recovery of possession has filed the suit for partition. This indicates that the plaintiff and

the defendant No.2 did not believe in their own cause. Even when the plaintiff claims

partition of the suit property, the plaintiff being out of possession, should also have

sought for possession of his share of the properties which would have required him to pay

the court fee on the part of the property falling in his share.

78. Plaintiff's claim of being the adopted son of J.D.Dhingra has been found to be

false to the knowledge of the plaintiff. The present suit is entirely frivolous, vexatious

and a blatant abuse of the process of the court. The immovable properties in the suit were

valued Rs.50 lakhs at the time of the suit. Judicial notice can be taken of nearly ten fold

hike the real estate prices in the last two decades. The plaintiff has staked an entirely false

claim on such valuable property. He has even succeeded in obtaining an interlocutory

order of injunction causing hindrance in the way of the defendant No.1 in rightful

enjoyment of the property. This is a fit case in which costs as provided for in Section 35A

of the CPC should be imposed on the plaintiff.

79. Accordingly the suit is dismissed with cost which is assessed at Rs.2,00,000/-

(Rupees Two lakhs only) over and above the normal cost of the suit. The order of

injunction dated 27.2.1984 & confirmed on 16.9.1984 is vacated.

Crl.M.Nos.4742/96 & 4743/96

80. Before parting with the judgment it is necessary to dispose of Crl.M.Nos.4742/96

& 4743/96. Crl.M.No.4743/96 prays for prosecution of the defendant No.2 (D2W2) for

prosecution for the offence of perjury punishable under Section 193 of Cr.P.C. The false

statement made by the defendant No.2 which has occasioned this application under

section 340 Cr.P.C. is her statement made in the witness box to the effect that for her

admission in the Miranda House College she had mentioned the name of J.D.Dhingra in

the column of father. Further she made a false statement about her being the nominee in

the capacity of daughter in the life insurance policy of J.D.Dhingra. It has been found in

paragraph 56 that the defendant No.2's deposition that J.D.Dhingra had been named in

the appropriate column as father in the admission documents of Miranda House was

false. Her stand that she was the nominee in the policy of J.D.Dhingra has also proved to

be false.

81. Crl.M.No.4742/96 is for prosecution of K.L. Ram Pal, PW-5. K.L.Ram Pal, as

can be seen from paragraphs 45-47, came in the witness box to depose that he was known

to the family of J.D.Dhingra and G.L.Dhngra and was present in the ceremony of

adoption which took place on 28.9.1954. He had also sworn an affidavit dated 18.7.1984

stating therein the facts in respect of which he subsequently came to depose. He has been

found to be a false witness. Mr. Sandeep Sethi, Senior Advocate, has made a strong plea

for prosecuting both these witnesses. I find considerable strength in his pleas. It is

unfortunate that the defendant No.1 has been deprived of full enjoyment of the properties,

which truly belong to her, on account of the filing of the suit. The plaintiff succeeded in

getting a temporary injunction on 27.2.1984 (subsequently confirmed on 16.9.1984) itself

restraining the defendant No.1 from transferring or alienating in any manner or parting

with possession of any of the properties mentioned in Schedule A attached to the plaint as

also from inducting any tenant or licencee in the premises B-24, Defence Colony, New

Delhi. There is no doubt that the defendant No.2 as well as K.L.Ram Pal have committed

the deplorable acts of perjury.

82. However, not in every case of perjury a prosecution is called for. The court is

required to proceed to make a complaint for the offence of perjury when such prosecution

is required to eradicate the evil of perjury. The perjury in the present case was committed

more than two decades back and prosecution for that offence at this distant day does not

seem to fulfil the purpose for which the provisions of Section 340 Cr.P.C. have been

enacted. For this reason, the applications under Section 340 Cr.P.C. are rejected.

Sd./-

November 28, 2006 MANJU GOEL,J