Smt. Paramjota vs D.D.C. And Others
2023 Latest Caselaw 20605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:156174
 
Reserved on 28.07.2023
 
Delivered on 04.08.2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
Court No. - 48
 
Case :- WRIT - B No. -  8709 of 1981
 

 
Smt. Paramjota				-----			    	    Petitioner
 
Through : Sri Ashutosh Singh &
 
Sri Lallan Prasad Singh, Advocates
 
Vs.
 
Deputy Director of Consolidation and others -----			Respondents
 
Through : Sri A.C. Nishad, Standing Counsel
 
Sri Shivam Agrawal &
 
Sri Pankaj Agrawal, Advocates
 
******
 
CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, J.

1. Consolidation proceedings were commenced in Village Sarhariya, Pargana Khareed, District Ballia in the year 1975. In the basic year name of Mahadeo (Respondent-5) and Bholla were recorded in revenue records on land in dispute. Original petitioner filed objection before Consolidation Officer on the ground that she has half share in Khatas No. 9 and 38 of Village Sarhariya and in Khata No. 53 of Village Dadar and the same may be separated also. Other objections were filed by Respondent-4, Yogendra that he was duly adopted by Bhola who later on become Sanyasi.

2. Consolidation Officer, Ballia vide order dated 04.01.1977 rejected objections filed by original petitioner and allowed objection filed by Respondent-4. It was held that Bhola has adopted Respondent-4 and further that later on Bhola become Sanyasi. Relevant part of order is reproduced hereinafter:

" मेरी राय में योगेन्द्र पाण्डेय के गवाही गोदनामा तथा गोद की रसम पूरा हुआ साबित किया है श्री भोला पाण्डेय का स्वयं का बयान है कि उन्होने सन्यास ले लिया है जो कि सुलहनामा में खाता २२९-बी के साबित है। काफी है कि उन्होने सन्यास ले लिया है। इस प्रकार जिस दिन सबद सन्यासी हो गये उसी दिन से कानूनी मृत्यु मानी जायेगी। अतः उसी दिन से वरासत तय होगी।

xxx

दूसरी बात यह है कि धारा २२९-बी में सुलहनामा के आधार पर डिग्री है। सुलहनामा में यह स्पष्ट है कि भोला पाण्डेय का नाम खारिज कर योगेन्द्र का नाम वंश मूल का नाम महोदय पाण्डेय अंकित किया जाये हांलाकि महादेव पाण्डेय जोत तजवीसानी खारिज हो चुकी है तथा पुनः एक तजवीसानी दाखिल की गई परन्तु जब तक मुकदमा नं०562 व 563 का आदेश रद्द करने का आदेश नहीं है इस प्रकार मेरी राय में भोला पाण्डेय का नाम खारिज करके योगेन्द्र पाण्डेय दत्तक पुत्र भोला पाण्डेय का नाम अंकित होना चाहिए।" (Emphasis supplied)

3. The above referred order was challenged by way of filing three appeals and the same were allowed by Settlement Officer of Consolidation, Ballia vide order dated 26.08.1978 and the relevant part of order is reproduced as under:

"योगेन्दर अपने को भोला का दत्तक पुत्र कहते है तथा भोला सन्यास लेना बता रहा है। गोदनामा दिनांक 24-2-1965 ई० पंजीकृत है। इस गोदनामें को भोला ने पंजीकृत दस्तावेज दिनांक 27-11-1976 ई० को निरस्त कर दिया है। गोदनामें का साबित करने के लिये छेदी एंव लक्ष्मी नरायन का व्यान हुआ है। गोद के समय का कोई फोटो प्रस्तुत नहीं किया गया है। गोद देने वाले लेने की कार्यवाही की साबित करने के लिये सुनैना जो योगेन्दर की मां है का ब्यान होना आवश्यक था। आधार वर्ष का इन्द्राज उत्तरवादी के पक्ष में नहीं था अतः सबूत उन पर था। गोद की क्रिया हिन्दु समाज के अनुसार ही हुई जिसमें देना और लेना प्रमुख है वह न तो फोटो से साबित है और न देने वाले ने वलि के ही ब्यान से साबित है जबकि दोनों साबित है। अगर यह मान भी लिया जाय कि गोद नियमानुसार हुआ। यदि वह साबित नहीं है तो भी भोला के जानिब काल में उनके सम्पत्ति पर उत्तरवादी का नाम नहीं हो सकता है। उत्तरवादी का कथन है कि भोला ने सन्यास ले लिया है। उसी समर्थन में 229-बी की डिग्री दिनांक 21-2-1973 जिसके विरूद्ध तजवीजसानी के दरख्वास्त विचाराधीन है। प्रस्तुत की गई है। सन्यास की रसम की गई इसका कोई सबूत नहीं है।

अतः जब तक साबित नहीं जाय कि भोला ने नियमानुसार सन्यास ले लिया है तब तक उनके स्थान पर उत्तरवादी के नाम दर्ज होने का प्रश्न नही उठता। गोद का लेना एवं सन्यासी होना साबित नहीं है। 229-बी की डिग्री के विरूद्ध तजवीजसानी विचाराधीन है। अतः आदेश अन्तिम नहीं हुआ। योगेन्दर भोला के स्थान पर विवादित भूमि के सहखातेदार नहीं हुये। चकबन्दी अधिकारी का आदेश अशुद्ध है।" (Emphasis added)

4. The above order was challenged by way of filing three revisions before Deputy Director of Consolidation, Ballia and all revisions were allowed by means of impugned order dated 16.12.1976. It was held that Respondent-4 was the adopted son of Bhola, who became Sanyasi in the year 1973. Relevant part of order is reproduced as under:

"इससे यह निष्कर्ष निकलता है कि अवर न्यायालय में भोला पाण्डेय द्वारा सन्यास ग्रहण किये जाने के तथ्य पर समुचित विवेचन नही किया है क्योंकि पत्रावली पर सन्यास के बाबत धार्मिक अनुष्ठान किये जाने वाले सबूतों के अभाव पर अवर न्यायालय ने सन्यास को नहीं माना है परन्तु यह विवेचन नहीं किया है कि जब भोला पाण्डेय ने सुलहनामे में सन्यास ग्रहण करने के तथ्य को स्वीकार कर लिया है तो उनकी यह स्वीकारोकित ही सन्यास के तथ्य को साबित करती है इस आधार पर यह पाया जाता है कि भोला पाण्डेय ने निगरानीकर्ता के पक्ष में पंजीकृत गोदनामा लिखा और धारा २२९-बी के मुकदमें में किये गये सुलहनामे में स्वीकारोकित द्वारा उन्होने सन्यास ग्रहण की किया।

जहाँ तक प्रतिपक्षी श्रीमती परमजोता का को विवादित आराजी को बाबत स्वामित्व का सम्बन्ध है च०अ० स्तर पर श्रीमती परमजोता की ओर से धारा ९ के अन्तर्गत विवादित खातों की बाबत जो आपत्तियां प्रस्तुत की गयी उसमे श्रीमती परमजोता ने यह उल्लेख किया कि मुकदमा नं०५४३ २६-९-७४ के आधार पर उनका नाम दर्ज कराने हेतु खतौनी में अमलदरामद हो चुका है परन्तु उसका इन्द्राज चकबन्दी के कागजात में लेखपाल से या कानूनगो द्वारा नहीं किया गया है। तस्दीक खतौनी में आकार पत्र ४ में भोला पाण्डेय १/२ व महादेव १/२ भाग का बटवारा दर्ज किया गया है जो कानून व वास्तविकता के खिलाफ है।"

(Emphasis supplied)

5. Sri Ashutosh Singh, Advocate holding brief of Sri Lallan Prasad Singh, learned counsel for petitioner, has submitted that without any valid ceremony of adoption, it cannot be proved, even there was a registered adoption deed. Deputy Director of Consolidation has returned an incorrect finding that Bhola had become Sanyasi as the same is not proved by any evidence and, therefore, when Bhola was alive Respondent-4 has no right to claim mutation in his name. Deputy Director of Consolidation has failed in its duty in not adverting to the factum of compromise filed before Consolidation Officer which was by Settlement Officer of Consolidation in appeal. Deputy Director of Consolidation has not considered the evidence on record and ignored the material documents available on record. Learned counsel for petitioner placed reliance on agreement dated 16.12.1976 that only 1/4 share comes to Bhola which can only devolve to Respondent-4, i.e., Yogendra. The registered adoption deed dated 26.02.1965 was cancelled by Bhola subsequently by way of a notary affidavit dated 27.11.1976.

6. Per contra, Sri A.C. Nishad, learned Standing Counsel appearing for State-Respondents and Sri Shivam Agrawal, Advocate holding brief of Sri Pankaj Agrawal, learned counsel for contesting-respondents, have supported the impugned order that adoption deed was a registered document, therefore, there is a presumption in terms of Section 16 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "Act, 1956"). Learned counsel for contesting-respondents submitted that alleged agreement dated 16.12.1976 has not even referred about any adoption deed and its effect, therefore, the same cannot be relied upon. He further submitted that alleged other agreement dated 12.07.1945 was rightly rejected since on the face of it, the same was outcome of a fraud. Learned counsel further submitted that in view of Section 15 of Act, 1956, a valid adoption cannot be cancelled. Counsel also referred the finding that Bhola has himself made a statement that he has become a Sanyasi.

7. Learned counsel for respondents has placed reliance on Supreme Court's judgment in Laxmibai (Dead) through L.Rs. and others vs. Bhagwantbuva (Dead) through L.Rs. and others, (2013)4 SCC 97; Jai Singh vs. Shakuntala, (2002)3 SCC 634; Pushpa Devi Bhagat (D) through LR. Sadhna Rai vs. Rajinder Singh and others, (2006)5 SCC 566; and, Trinity Infraventures Ltd. and others vs. M.S. Murthy and others, 2023 SCC OnLine SC 738.

8. Heard learned counsel for parties and perused the material available on record including written submission.

9. In the background of above referred facts and rival submissions the issue arises for determination for this Court is, that despite the factum of registered adoption deed, whether it is still mandatory to prove that necessary rituals were followed during ceremony of adoption as well as whether, Bhola has renounced the world and become a Sanyasi which gives right to Respondent-4 to apply for mutation during his life time and lastly, the effect of two alleged agreements and a notary affidavit on the adoption deed?

10. Before considering rival submissions on above referred issues it would be relevant to refer Sections 11, 15 and 16 of Act, 1956 hereinafter:

"11 Other conditions for a valid adoption. --In every adoption, the following conditions must be complied with:--

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(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 or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

Provided that the performance of datta homam shall not be essential to the validity of adoption."

"15. Valid adoption not to be cancelled.--No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

16 Presumption as to registered documents relating to adoption. -- 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."

11. In the present case factum of a registered adoption deed is not under dispute. A copy of adoption deed is annexed alongwith counter affidavit filed on behalf of respondents. It is also not in dispute that it was a registered document. Therefore, as referred above, Section 16 of Act, 1956 has certain presumption that adoption was made in compliance with the provisions of Act unless and until it is disproved. According to Section 15 of Act, 1956, as referred above, valid adoption can never be cancelled. Therefore, subsequent notary affidavit of Bhola revoking adoption deed has no legal consequence.

12. As referred above, in the present case there is no document on record which specifically cancel or revoke the adoption deed as well as nothing has been referred about the adoption deed in any of the alleged agreements.

13. Respondents have tried to dispute the adoption deed making an argument that conditions for a valid adoption, as mentioned in Section 11 of Act, 1956, was not complied with, i.e., parents of both parties were not present and due ritual process was not followed, however, it would be relevant to refer the proviso of Section 11 of Act, 1956 which provides that performance of datta homam shall not be essential to the validity of adoption. The consequence of above discussion is only one, that registered adoption deed was a valid document and respondents have failed to point out any material or circumstances to doubt the veracity of said document. Therefore, Respondent-4, Yogendra was duly adopted as son of Bhola and legal rights thereof will follow.

14. I have carefully perused the adoption deed, photocopy of which is annexed alongwith the counter affidavit as Annexure CA-1, wherein relevant details have been mentioned specifically, such as, date of adoption, presence of parents as well as that adopted son was willingly given to Bhola Pandey by putting him in his lap and adoption was took place accordingly to religious procedure, therefore, there is no ground to presume that it was not a valid adoption deed.

15. The next issue is to consider, whether Bhola during his life time has renounced the world and become Sanyasi.

16. It would be relevant to refer the specific findings in this regard returned by Consolidation Officer in its order dated 04.01.1977 that Sri Bhola Pandey himself has appeared and gave his testimony that he has renounced the world and become Sanyasi and there is no dispute that in such circumstances the day Bhola renounced the world, it will be his civil death and consequences thereof will immediately follow. No argument is raised or any material has been brought on record to contradict such statement as well as findings.

17. In this regard the contrary findings given by Settlement Officer of Consolidation in it's order dated 26.08.1978 is unsustainable since it has ignored the statement of Bhola. Settlement Officer of Consolidation has erroneously placed much reliance with regard to rituals of renouncing the world. In a very cursory manner Appellate Authority has placed reliance on a notarized affidavit dated 27.11.1976 whereby allegedly registered adoption deed was cancelled. However, as referred above, Section 15 of Act, 1956 specifically provides that valid adoption cannot be cancelled. The Revisional Authority in a very specific words has rejected said finding of Appellate Authority on the basis of legal proposition. This Court is of the opinion that reasons given by Revisional Authority are based on sound legal proposition and, therefore, it cannot be interfered.

18. It would be appropriate to refer few paragraphs from Laxmibai (Dead) through L.Rs. (supra) hereinafter:

"28. In S.T. Krishnappa v. Shivakumar & Ors., (2007) 10 SCC 761, this Court observed that the "adoption deed" must be read as a whole and that on reading the same in such a way, the intention of the parties with respect to whether the adoptive father/mother wanted to make an adoption according to law and not merely, to appoint an heir, must be clearly established.

29. In Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC 1286, this Court held that the giving and receiving are absolutely necessary to the validity of an adoption. All that is required is that the natural father be asked by the adoptive parent to give his son in adoption, and that the boy be handed over and taken for this purpose.

30. Furthermore, in Mst. Deu & Ors. v. Laxmi Narayan & Ors., (1998) 8 SCC 701, the presumption of registered documents under Section 16 of the Act was discussed. It was held that in view of Section 16, wherever any document registered under any law is produced before any court purporting to record an adoption made, and the same is signed by the persons mentioned therein, the court shall presume that the said adoption has been made in compliance with the provisions of the Act, until and unless such presumption is disproved. It was further held, that in view of Section 16 it is open for a party to attempt to disprove the deed of adoption by initiating independent proceedings.

31. Mere technicalities therefore, cannot defeat the purpose of adoption, particularly when the defendants/respondents have not made any attempt to disprove the said document. No reference was ever made either by them, or by their witnesses, to this document i.e. registered adoption deed. Undoubtedly, the natural parents had signed alongwith 7 witnesses and not at the place where the executants could sign. But it is not a case where there were no witnesses except the executants. Instead of two witnesses, seven attesting witnesses put their signatures."

19. The other findings returned by Deputy Director of Consolidation about other agreement dated 12.07.1945 that it cannot be proved, is also based on sound legal principles and factual aspect that it was a document of prior independence, therefore, the Government signs cannot be used before independence. This Court is of the opinion that alleged agreement has no legal consequence on adoption deed and the same remain in existence being a valid document and consequence thereof was that Respondent-4 was an adopted son of Bhola, who has later on renounced world, therefore, effect of adoption deed become operative and immediately thereafter property of Bhola was devolved to Respondent-4, who got right of mutation also.

20. The other argument that compromise deed filed under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 holds legal force, cannot be sustained since it is settled position that after commencement of consolidation proceedings all other proceedings shall be abeted. All other arguments raised on behalf of petitioner, as discussed above, have no merit.

21. In view of above, challenge to impugned order fails and the writ petition is accordingly dismissed.

Order Date :-04.08.2023

AK