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Ram Jagat Vs. Smt. Kanchandei and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Civil Appeal No. 719 of 1979
Judge
Reported inAIR1984All44
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 11 and 16; Evidence Act, 1872 - Sections 114
AppellantRam Jagat
RespondentSmt. Kanchandei and anr.
Appellant AdvocateVishal Singh, Adv.
Respondent AdvocateM.L. Trivedi, Adv.
DispositionAppeal dismissed
Excerpt:
.....on behalf of the plaintiff-appellant before the trial court could not have been discarded by the courts below on the ground that the best witness i. ' 9. section 16 of the act clearly indicates that if the plaintiff sets up an oral adoption in a suit, he has to prove all the conditions of a valid adoption. if this condition is not satisfied, the court will not be bound to rely upon the statutory presumption......the adoption deed by which smt rajdei adopted respondent no. 2 on 10-4-69 as also the sale deed executed by smt. raidei on that very date in favour of respondent no. 1 were bad and were liable to be cancelled2. the suit was contested. it was pleaded that plaintiff-appellant was not adopted by ram ratan as his son and smt. rajdei validly adopted by registered document respondent no. 2 as her son.3. the trial court, after framing necessary issues and recording evidence of the parties, came to the conclusion that plaintiff was not the adopted son of ram ratan. it may be stated that before the trial court, only a certified copy of the adoption deed dated 26-4-1965 was filed. during the pendency of the appeal before the lower appellate court, however, the original deed was also filed.....
Judgment:

S. Saghir Ahmad, J.

1. This is plaintiff's second appeal. The suit was filed for a decree for cancellation of the sale deed executed by Smt. Rajdei in favour of respondent No. 1, Smt. Kanchandei on 10-4-1969. It was also prayed, in the suit that the adoption deed dt 10-4-69 executed by Smt. Rajdei by which she adopted respondent No. 2 be cancelled. Reliefs of injunction and possession were also claimed. It was set out in the plaint that one Ram Ratan was the owner of certain property including whole of the plots covered by sale deed dt. 10-4-69, Ram Ratan's wife was Smt Rajdei. They had 'no issue. They consequently adopted plaintiff-appellant as their son and Ram Ratan executed a registered deed of adoption on 26-4-65. Ram Ratan died on 15-1-67 and plaintiff-appellant being his heir, was entitled to all Ms properties including the plots in question. The adoption deed by which Smt Rajdei adopted respondent No. 2 on 10-4-69 as also the sale deed executed by Smt. Raidei on that very date in favour of respondent No. 1 were bad and were liable to be cancelled

2. The suit was contested. It was pleaded that plaintiff-appellant was not adopted by Ram Ratan as his son and Smt. Rajdei validly adopted by registered document respondent No. 2 as her son.

3. The trial court, after framing necessary issues and recording evidence of the parties, came to the conclusion that plaintiff was not the adopted son of Ram Ratan. It may be stated that before the trial court, only a certified copy of the adoption deed dated 26-4-1965 was filed. During the pendency of the appeal before the lower appellate court, however, the original deed was also filed by the present appellant. Some of the witnesses were recalled and their statement was also recorded. The lower appellate court on an appeal which was preferred by plaintiff-appellant has also found that plaintiff-appellant was not the adopted son of Ram Ratan. The so-called adoption deed has not been executed in accordance with law and ceremony of adoption has also not been performed. Consequently, the decree passed by the trial court was upheld. The plaintiff-appellant has now come up in second appeal before this court.

4. I have heard the learned counsel for the parties.

5. The learned counsel for the appellant has contended that the evidence produced on behalf of the plaintiff-appellant before the trial court could not have been discarded by the courts below on the ground that the best witness i.e. natural father of the plaintiff was not produced. In this connection it is also pointed out to me that lower appellate court has observed that there was nothing on the record to show that Sheo Ram was the natural father of the plaintiff-appellant was dead. He has contended that this observation of the lower appellate court is wrong. The learned counsel for the appellant has invited my attention to the statement of DW 1 Bhagwati Singh in which it has been stated by him that Sheo Ram, who was father of the plaintiff-appellant, was dead. It has not been stated by Bhagwati Singh that Sheo Ram was dead on the date on which Ram Jagat, present plaintiff is said to have been adopted by Ram Ratan. The observation of the lower appellate court has to be read in the background of the fact that the deed of adoption does not bear the signature of Sheo Ram. In any case, this observation alone would not vitiate the findings recorded by the courts below that the plaintiff-appellant was not the adopted son of Ram Ratan.

6. Learned counsel for the appellant next contended that since the adoption in question was evidenced by a duly executed and registered deed of adoption, the courts below were bound to hold that the appellant was the adopted son of Ram Ratan. This submission has to be examined in the light of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956.

7. Section 11 of the Act lays down the conditions for a valid adoption. These conditions are in addition to other relevant conditions contained in earlier part of the Act. Clause (vi) of Section 11 of the Act provides as under:--

'(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption.'

8. Section 16 of the Act lays down the rule of presumption in respect of registered documents relating to adoption. It provides as under:--

'16. 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.'

9. Section 16 of the Act clearly indicates that if the plaintiff sets up an oral adoption in a suit, he has to prove all the conditions of a valid adoption. If, however, the adoption is evidenced by a document in writing which is also registered, then a presumption has necessarily to be drawn by the court that the adoption was made in compliance with the provisions of the Act. This is a mandatory requirement. But the presumption would arise only if the document is signed not only by the person adopting the child but also by the person giving the child in adoption. If this condition is not satisfied, the court will not be bound to rely upon the statutory presumption. The presumption required to be drawn by the provisions of Section 16 of the Act is of course a rebuttable presumption.

10. In the instant case it has been found concurrently by the courts below that the requirements of Clause (vi) of Section 11 were not proved and it was not established that the plaintiff was given and taken in adoption. The deed of adoption is also not signed by the plaintiff's father. In this situation, the courts below were fully justified in coming to the conclusion that plaintiff was not the adopted son of Ram Ratan. The suit was rightly dismissed.

11. No other point was pressed.

12. The appeal is dismissed with costs.


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