R.N. Misra, J.
1. This miscellaneous second appeal arises out of an appellate order of the learned Additional District Judge upholding the rejection of an objection under Section 47 of the Code to the execution proceeding.
2. Title Suit No. 56/44 of 1963/ 1964 was for partition. During the pendency of the suit, on 4-2-1965 the second defendant who was a co-sharer died. No substitution, however, was effected. On 23-4-66, the preliminary decree was drawn up.On 2-2-1973, the decree was made final. Thereafter execution Case No. 33 of 1973 was levied for execution of the final decree. The appellant who was judgment-debtor No. 4 made an application under Section 47 of the Civil P. C. on the allegation that the decree was a nullity, inasmuch as though he was the adopted son of the second defendant, no substitution was effected and he had not been brought on record. The objection was registered as Miscellaneous Case No. 76 of 1973 and witnesses were examined on behalf of the objector and two for the decree-holder. The objector produced a registered deed of adoption dated 22-1-1964 by which the second defendant late Baii Sahu had acknowledged to have adopted him some time prior to 1956. The voters list of 1973 prepared during the pendency of the case was also produced in support of the claim of adoption. The executing court came to hold that S* 16 of the Hindu Adoptions and Maintenance Act of 1956 had no application to the case and, therefore, proceeded to assess the evidence for judging the merit of the claim of adoption by placing the burden on the objector and ultimately negatived the claim. The appellate court looked at broad features of the case and was impressed by the fact that adoption was claimed to have taken place during the period of obsequies which is not a normal feature and upheld the order of the executing court. This concurrent finding negativing the claim of adoption is assailed in second appeal.
3. The scope of Section 16 of the Hindu Adoptions and Maintenance Act (hereinafter referred to as the 'Act') has been examined at length by this Court in the cases of Radha Krishna v. Bhuyan Shri Shyam Sundar, AIR 1964 Ori 136, Shyama Sundar Padhi v. Dharanidhar Padhi, (1971) 1 Cut WR 784 and' Manishi Krishna Murty v. Manishi Chinna Yerrayya (1971) 2 Cut WR 36. In case Ext. 1 would satisfy the tests of Section 16 of the Act, the burden to disprove the fact of adoption would be on the plaintiff-decree-holder and respondents' counsel concedes that in that eventuality the orders of the exe-cuting court and the appellate authority would not be sustainable. The main question for consideration therefore, is as to whether Section 16 of the Act would be applicable.
4. The Act came into force on 21-12-1956. Admittedly the adoption of the objector is said to have taken place prior to this date. Ext. 1 is an acknowledgment of an earlier adoption. Mr. Mohapatra for the appellant maintains that even to a deed of acknowledgment, Section 16 has application. In support of his proposition, he relies upon the observations of this Court in the case of Manishi Krishna Murty (1971 (2) Cut WR 36). In that case, while examining the scope of Section 16 of the Act, I had stated :--
'Mr. Misra for the respondents, however, contends that there are two infirmities in the document and as such it does not satisfy the require* ment of Section 16. Firstly it does not in clear terms record an adoption and secondly the natural father has not signed as required under the section but has attested the document. This criticism of -Mr. Misra does not turn out to be tenable. This document purports to record an adoption in clear terms. The use of the words record an adoption would clearly go to show that what is intended is that the document must with reference to the fact of adoption have some narration. It need not be an adoption in praesenti contemporaneous with the document. It may even be a previous adoption to be acknowledged under the document. I find support for this view of mine in the Commentary on Hindu Law by Raghavachariar. It has been stated;
'If the document is not registered or if it is only an agreement to adopt and does not record the fact of adoption either contemporaneously or previously made, or is signed only by the adopter or has not been produced into court, there is no presumption either of the factum or validity of the adoption.'
What has been said above is no authority to support the proposition that even if an adoption had taken place prior to the Act and a deed of acknowledgment was registered after the Act satisfying the requirementsof Section 16, the presumption would arise. Mr. Mohapatra fairly placed before me the observations of a Full Bench decision of the Jammu & Kashmir High Court in the case of Shamsher Singh v. Deputy Custodian General, AIR 1973 J & K 89 (FB), where it has been observed (at p. 92):
'The contention of the . learned counsel for the petitioner that there was a registered deed of adoption in favour of the petitioner which created a presumption in favour of adoption under Section 16 of the Hindu Adoptions and Maintenance Act and that therefore the courts below had committed a legal error in this regard is devoid of merit in as much as Section 16 can have no application to the present case. A presumption under Section 16 of the Act can be raised if the adoption is made under the Act. Here the petitioner is alleged to have been taken in adoption six years before the execution of the deed of adoption and before the Act came into force. According to Section 5 of the Act all such adoptions as are made after the commencement of the Act are to be regulated by the Act. It is only in respect of those adoptions made after the commencement of the Act that presumption under Section 16 of the Act can be drawn. But as pointed out above, the alleged adoption in the instant case was made in the year 1958 much before the Act came into force, therefore, no such presumption can be drawn under Section 16. This is also in view of Section 30 of the Act which provides that nothing contained in the Act shall affect any adoption made before the commencement of the Act, and validity and effect of any such adoption shall be determined as if this Act had not been passed.'
On a general reading of the Act and keeping the spirit of the statute in view, I am inclined to agree on principle with the ratio of the Full Bench decision. A post-Act acknowledgment of a pre-Act adoption would not come within the ambit of Section 16 of the Act, The courts below, therefore, were right in dealing with the claim of the appellant without application of Section 16 of the Act. Heavy burden lay on the appellant to support his claim of adoption and the courts below after examining thefactual aspects have come to the conclusion that the claim of adoption cannot be sustained. There is some force in the contention of Mr. Mcha-patra that the lower appellate court should have re-assessed the entire evidence, but I have myself looked into the evidence and am satisfied that the assessment thereof made by the executing court was appropriate. The heavy burden that lay on the propounder of adoption has indeed not been discharged. There is no merit in the appeal and the same must accordingly fail with costs.