M.P. Mehrotra, J.
1. This is a second appeal which has arisen out of a suit wherein theplaintiffs claimed a declaration that the defendant No. 1 Sushil Chandra was not the adopted son of Raghunath Prasad. The trial Court dismissed the suit but the lower appellate court allowed the appeal filed by the plaintiffs and decreed the suit. Now the defendant No. I has come in this second appeal and in support and opposition thereof, I have heard the learned counsel for the parties. The brief facts are these:
2. A pedigree has been set out in the trial Court's judgment and from the same it will be seen that the plaintiffs based their claim as daughter or daughters' issues of one Ram Sahai. It is alleged that Ram Sahai's three sons, namely, Bhoop Ram, Phool Chand and Raghunath Prasad, all remained bachelors in their lives and alter the death of Bhoop Ram and Phool Chand, the remaining son Raghunath Prasad became the sole owner in possession of the property left by Ram Sahai. Raghunath Prasad died on 3rd October, 1963. The plaintiff No. 1 claims succession on the basis of being the real sister of Raghunath Prasad and the plaintiffs Nos. 2, 3 and 4 claimed succession on the basis of being sons of the other sisters of Raghunath Prasad. It was alleged that the plaintiffs were in possession of the property left by Raghunath Prasad but when they were seeking to get their names mutated in the record in their favour, the defendant No. 2, Krishna Behari, made objection that his son Sushil Chandra alias Sallu the defendant No. 1 had been adopted by Raghunath Prasad and hence the plaintiffs' names could not be mutated. The plaintiffs questioned the factum of adoption and denied the validity of the same. They alleged that the defendant No. 2 Krishna Behari was the Lekhpal in the village and he used to live in a portion of the house of Raghunath Prasad as a licensee and he practised undue influence and fraud on Raghunath Prasad with a view to get some writing purporting to show the adoption of Krishna Behari's son by Raghunath Prasad.
3. The defendants contested the claim. They denied that the plaintiffs were related to Raghunath Prasad in the manner as suggested in the plaint and it was alleged that they bore no relationship and were not heirs or entitled to succeed to Raghunath Prasad. The defendants affirmed that Raghunath Prasad had taken in adoption the defendant No. 1, Sushil Chandra alias Sallu, and the said adoption was not brought about by undue influence or fraud as alleged in the plaint. It was not invalid for the reasons alleged by the plaintiffs. There was a registered adoption deed dated 4th February, 1960 and the said document was not bad or vitiated on thegrounds alleged in the plaint. It was claimed that the defendant No. 1 was in possession of the property left by Raghunath Prasad. Certain other pleas were taken which it is not necessary to notice for the purpose of this appeal.
4. The trial court framed the necessary issues and tried the suit. The adoption of defendant No. 1 by Raghunath Prasad was held to be established and the suit was, therefore, dismissed. In the lower appellate Court, the contention was that the defendants had failed to prove the factum of adoption and the trial Court's verdict was incorrect. The lower appellate Court accepted the said contention and allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiffs' suit.
5. Learned counsel for the defendant-appellant had invited my attention to Section 16 of the Hindu Adoptions and Maintenance Act, 1956, which lays down as under;
'Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.'
6. He has further placed reliance on Bhola Chaube v. Man Matun Chaube (1964 All LJ 749): (AIR 1965 All 258) where Mr. Justice M. H. Beg (as he then was) laid down as under:
'Where it has been proved that the admission was made in a registered deed formally executed by a party with an endorsement showing that the executant was fully aware of the contents of the deed executed with due deliberation and full understanding, the value of the admission is considerable unless it is explained satisfactorily.'
7. Reliance has also been placed on Arjan Singh v. Kartar Singh (AIR 1951 SC 193) wherein the head note reads as follows:
'The discretion given to the appellate court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case is decided as if it is non-existent.'
8. This case has been retted on in support of the counsel's contention that thelower appellate Court was not justified in sending for the witnesses who had been examined in the trial Court and whose demeanour had been witnessed by the said court. Learned counsel's point is that sending for the witnesses and making observation about their age is in the nature of allowing additional evidence to be brought on record and this could only be done within the ambit of Order 41, Rule 27 C. P. C. But this aspect of the matter was lost sight of by the lower appellate court. Learned counsel for the plaintiffs-respondents has placed reliance on Lakshman Singh Kothari v. Smt Rup Kan-war (AIR 1961 SC 1378). In my view, this case would not be of much help inasmuch as the Supreme Court had to examine the question of adoption which was alleged to have taken place before coming into effect of the Hindu Adoptions and Maintenance Act, 1956 and in this view the facts of the instant case are completely distinguished. Now the law of adoption will be regulated by the provisions of the said Act, and, inter alia, Section 16, which has been reproduced above, casts a duty on the courts to draw a mandatory presumption to the effect that whenever there is a registered document 'purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption,' then the adoption has been made in compliance with the provision of this Act unless and until it is disproved.
9. It seems to me that the lower appellate Court failed to appreciate the significance of this provision and placed the burden on the defendants to prove the actual ceremony of giving and taking in adoption and that the adopted boy performed the last rites of Raghunath Prasad in his capacity as his adopted son. I reproduce below the following passage from the judgment of the lower appellate court to show that the burden in the instant case was placed on the defendants:
'Considering in the light of what has been said above it is clear that the defendants have totally failed to prove due execution of the adoption deed Ext. A-4 by Raghunath Prasad. Defendants have totally failed to prove the actual ceremony of giving and taking in adoption of Sushil Chandra alias Sallu by his parents to Raghunath Prasad. Defendants have totally failed to prove that Shushil Chandra alias Sallu performed the last rites of Raghunath Prasad in his capacity as his adopted son.'
It is obvious that when the plaintiffs were not disputing the thumb impression of Raghunath Prasad on the registered deed of adoption and were alleging that the execution of the same was the result of a fraud and undue influence practised by Krishna Behari, the defendant No. 2, on Raghunath Prasad, the adoptive father, then in such a situation the burden to prove undue influence and fraud was on the plaintiffs and the defendants were not called upon to prove the thumb impression of Raghunath Prasad on the document. Whatever evidence was necessary to be led in respect of an attested document was tendered on behalf of the defendants. Both the attesting witnesses of the adoption deed were examined and it seems to me that their testimony had been discarded on absolutely insufficient ground. The lower appellate court itself felt that the plaintiffs did not succeed in proving the fraud and undue influence as alleged by them. The lower appellate court observed:
'The evidence of Malikhan Singh is, no doubt, not sufficient to establish that Raghunath Prasad had executed this deed while he was under the influence of some intoxicant liquor or other intoxicant drug.
The burden of proving the due execution of this deed was on the defendant No. 1 who claimed rights of an adopted son under this deed.'
10. It seems that this approach is fundamentally wrong in law. As I stated above, the document was not denied to bear the thumb impression of Raghunath Prasad but it was alleged that the said thumb impression had been obtained by practising fraud and undue influence on him. The plaintiffs failed to prove this allegation and in the circumstances, in my view, the lower appellate court was wrong in holding that the due execution of the document in question was not proved. The lower appellate court committed this basic error and though very often the burden of proof loses its significance where the courts below have fully examined the evidence tendered by both the parties, but in the instant case, I feel that the mandatory presumption which is to be drawn under Section 16 is of such a basic and fundamental nature that its disregard by the lower appellate court has caused its judgment to be vitiated in law, I think that the matter should go back to the lower appellate court with a direction that after hearing the parties, it shall decide the appeal bearing in mind the aforesaid observations, namely, that the document in question should be treated to have been proved and thereafter the lower appellate court will decide whether taking into consideration the presumption under Section 16, the adoption, as alleged by the defendants and as disputedby the plaintiffs, should or should not be upheld. The entire evidence on record, documentary and oral, will be examined by the lower appellate court and the appeal shall be decided in accordance with law. In the circumstances, the parties shall bear their own costs.