1. This is a second appeal by Modan Singh defendant No. 1 and the facts leading to it are these. His father's first cousin Sher Singh executed on the 14th of September, 1961, a deed of adoption (Exhibit D.1) the relevant portion of which runs thus:
'I. therefore, in possession of my full senses by written adoption deed adopt my nephew Modan Singh son of Jangir Singh as a son and from today Modan Singh has been recognised as my natural son. He would perform all religious rites and after my death would be owner of my property of every kind from generation to generation and none will have any objection to this. Jangir Singh consents to the making of adoption by me.'
After Sher Singh's death his sister Sham Kaur and his other sister's son Bant Singh brought a suit challenging deed Exhibit D.1 as a mere paper transaction which did not operate to make Modan Singh defendant No.1 and adopted son of Sher Singh. Modon Singh defendant No.1 contested the suit and contended that he was validly adopted by Sher Singh as a son and also that the deed of adoption operated as a testamentary disposition of property in his favour.
At the trial evidence was led on behalf of Modan Singh defendant No.1 to the effect that the ceremony of giving and taking in relation to the alleged adoption had taken place about 10 years earlier to the execution of deed Exhibit D.1. This evidence was disbelieved by both the Courts below and it was held by them that the alleged adoption was invalid inasmuch as no actual giving and taking of Modan Singh defendant No.1 had taken place and also because the consent of his natural mother to the adoption had not been obtained. They further concluded that deed Exhibit D. 1 could not be construed as a testamentary disposition of property by Sher Singh in favour of Modan Singh defendant No.1. Both these findings have been challenged before me on behalf of Modan Singh defendant No.1.
2. Reliance has first been placed by learned counsel for the appellant on Section 16 of the Hindu Adoptions and Maintenance Act, 1956, which states:
'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.'
It is urged that deed Exhibit D. 1 being a registered document a presumption of a valid adoption must be raised in favour of the appellant by virtue of the above extracted provisions. This proposition is unexceptionable but the matter does not rest there. The presumption which must be raised under the Section is a rebuttable presumption as is clearly made out by the use of the word 'unless and until it is disproved' appearing at the end of the section. So all that is to be seen is whether the Courts below were right in coming to the conclusion that presumption which had to be raised in view of deed Exhibit D. 1 being a registered document had been rebutted. They took into consideration the circumstance that deed Exhibit D. 1did not mention that any ceremony of giving and taking had taken place about 10 years prior to its execution and that, on the other hand, it specifically stated that the adoption was effective from the date of such execution only. In my opinion, the circumstances is all important and knocks the bottom out of the stand taken by Modan Singh defendant No. 1 that the adoption ceremony had taken place 10 years earlier to the execution of the deed. The entire oral evidence led by him in support of that stand was, therefore, rightly held to be unreliable and if that be so, the alleged adoption must be held to be invalid inasmuch as it is not Modan Singh's case that any ceremony of giving and taking took place at any other time. The finding of the Courts below about the invalidity of the adoption is thus not open to any exception and is hereby affirmed.
3. I also find myself in agreement with the Courts below in holding that the above quoted portion of deed Exhibit D. 1 cannot be construed to operate as a will executed by Sher Singh in favour Modan Singh defendant No.1. The words 'he would perform all religious rites and after my death would be owner of my property of every kind from generation to generation and none will have an objection to this' occurring in the deed and sought to be construed as a testament state merely the fact of the adoption and nothing else. They do not intend to lay down that Sher Singh bequeaths his property to Modan Singh defendant No. 1 but only that because Modan Singh defendant No. 1 had been adopted as his son, he would inherit the property of Sher Singh just as a son inherits the property of his father. No intention to make a will can, on a fair reading of the deed, be gathered from its contents. In similar circumstances the same view was taken in Fanindra Deb Raikat v. Rajeswar Das, (1885) ILR 11 Cal 463(PC) and Ranjit Singh v. Garja Singh, 1967 Cur LJ 628=(AIR 1968 Punj 37 (FB)).
4. Learned Counsel for Modan Singh defendant No. 1 has drawn my attention to Krishna Rao v. Sundara Siva Rao, AIR 1931 PC 109, and Surja Ram v. Sukh Ram, Second Appeal No. 301 of 1961 decided by Harbans Singh J. (as he then was) on 4.2.1963 (Punj). In Krishna Rao's case the relevant portion of the deed of adoption was:
'As I have had no issue I have brought you up while you were young and have adopted you and celebrated your Upanayanam, etc. and have chosen you as a son; so I have communicated this fact to the revenue authorities and got your name registered for the office of the karnam held by me. Further, you shall be my son and you shall be entitled to my entire property as a son.'
The writer of the deed was a Brahmin and a karname and their Lordships were of the opinion that he must have been well aware that the document could not of itself constitute an adoption inasmuch as a formal ceremony was essential for that purpose. They further observed that it was reasonable to assume that the writer must have been fully aware of the fact which was admitted before them that no actual adoption took place and also to assume that his anxiety was to do all he could to secure the succession of the alleged adoptee to his office as karnam. Their Lordships concluded that in these circumstances the deed was liable to be construed as having a testamentary effect in favour of the alleged adoptee. The case is clearly distinguishable from the present one in which the executant of deed Exhibit D. 1 was an illiterate Jat who presumably never knew what the legal requirements of a valid adoption were and who contented himself with just writing out a deed of adoption in the belief that it was good enough to clothe Modan Singh defendant No.1 with the status of an adopted son which, however, has not turned out to be the case. No intention can be imputed to Sher Singh in these circumstances to make a testamentary disposition of his property in favour of Modan Singh defendant No.1 to whom the property was being left merely as an inheritance by virtue of the relationship created under the deed.
Regular Second Appeal No. 301 of 1961, D/- 4-2-1963 (Punj) (supra) is a case in which the deed in question was worded thus:
' * * first. Surja Ram will be our son and will inherit like a natural son and secondly after my demise Surja Ram will be the owner of all property movable and immovable and the brit.' Inheritance as a son was spoken of separately from the right to become owner of the property in question after the demise of Surja Ram and that is why it was held that the deed was liable to be construed as a testamentary disposition of property although the adoption failed. This case can also, therefore, not be an authority for the proposition that deed Exhibit D. 1 should be construed to be the will of Sher Singh bequeathing all his property to Modan Singh defendant No. 1.
5. For the reasons stated, the appeal is dismissed but with no order as to costs.
6. Appeal dismissed.