"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.
Provided that the performance of datta homan
shall not be essential to the validity of adoption."
12. Section 11 (vi) clearly mentions that child to be adopted must be
actually given and taken in adoption by parents or guardian concerned
or under their authority with intent to transfer the child from the family
of its birth or in case of abandoned child or child whose parentage is
not known, from place or family where it has been brought up to family
of its adoption."
13. In the light of aforementioned provision, if evidence brought in record
by plaintiff is looked into, it is apparent that plaintiff (PW1) in his
evidence has stated that he was given by his biological father & mother
to adoptive father & mother with mutual consent and customs
prevailing in their community. In cross-examination he stated that at the
time of said proceeding he was aged about 5-6 years. Biological father
of plaintiff is examined as PW2 Janak Ram Yadav. In examination in
chief, he stated that he with the consent of his wife, when plaintiff was
5-6 years of age, was given in adoption by making him sit on lap. There
is no specific averment in examination-in-chief as to in whose lap
plaintiff was made to sit, whereas, plaintiff had stated that his biological
parents gave the plaintiff in lap of adoptive mother and adoptive father.
PW3 Manish Kumar Jain and PW4 Puniram Yadav had not specifically
mentioned anything in this regard as to who gave the plaintiff to whom
in categorical terms in their examination-in-chief but only mentioned
that with mutual consent and the custom prevailing in their community
plaintiff was adopted.
14. Janak Ram (PW2) in cross-examination has stated that in front of
community members he gave the plaintiff on lap of Papa Rao . At that
time sweets were distributed. He also stated that at the time when
adoption took lace it was winter season and ceremony took place in
afternoon at about 2:00 -3:00 pm. Manish Kumar Jain in his cross-
examination has stated that adoption ceremony took place in summer
season. He denied the suggestion that he was not present at the time
of ceremony of adoption. From age of plaintiff and this witness PW3
Manish Jain as mentioned in deposition sheet it appears to be 34 years
and 40 years respectively. Manish Jain was shown to be 6 years elder.
He is shown to be resident of Chirmiri. According to PW4 Puniram
Yadav in cross-examination admitted that PW2 Janak Ram is his uncle
and Papa Rao is friend of his uncle. Perusal of evidence on record by
plaintiff would show that none of witnesses has clearly stated that
where the give and take ceremony had taken place. There is
contradiction in the statement of PW2 and PW3 about the season in
which alleged adoption had taken place. None of witnesses has named
the other community members in whose presence ceremony of give
and take had taken place. Evidence of PW-3 does to appear to be
reliable evidence more particularly considering his age on the alleged
date of adoption, in the facts of case. Though according to pleading
made in deed of adoption that adoption took place on 25.03.1976, but
it was registered only on 19.02.1998, which shows that adoption deed
was prepared only in the year 1998 and not at the time of alleged date
of adoption. It is in the adoption deed only, it is mentioned that
proceedings of adoption is taken place in resident of party No.2 i.e.
adoptive father in Railway Colony i.e. Railway Station Chirmiri. Plaintiff
had filed copy of application for entering the adoption of plaintiff in
service record dated 29.08.1998 as Ex.P-7, copy of State Railway
Provident Fund as Ex.P-8 dated 15.11.1998 and copy of service record
mentioning the family member of employer. All these documents are
after getting alleged deed of adoption registered. Plaintiff has not
placed on record any document of his education like admission in
school or any other document showing him to be the adopted son of
Papa Rao and Laxmi Bai of prior to 1998.
15. Learned trial Court had not taken into consideration the requisite of a
valid adoption as provided under Section 11 of the Act of 1956 in
particular Section 11 (vi) of the Act. No witness of the community is
examined to prove the fact of give and take ceremony.
Witnesses PW3 and PW4 who are examined are the witnesses to
deed of adoption. Name of the person of their community present at
the time of adoption in year 1976 is not specifically mentioned.
16. Hon'ble Supreme Court in case of Jai Singh Vs. Shakuntala (2002) 3
SCC 634 has noted the statutory presumption envisaged by Section 16
of the Act of 1956 and observed as under:
"2. The Section thus envisages a statutory presumption
that in the event of there being a registered document
pertaining to adoption there would be a presumption that
adoption has been made in accordance with law. Mandate
of the Statute is rather definite since the Legislature has
used "shall" in stead of any other word of lesser
significance. Incidentally, however the inclusion of the
words "unless and until it is disproved" appearing at the
end of the statutory provision has made the situation not
that rigid but flexible enough to depend upon the evidence
available on record in support of adoption. It is a matter of
grave significance by reason of the factum of adoption and
displacement of the person adopted from the natural
succession - thus onus of proof is rather heavy. Statute has
allowed some amount of flexibility, lest it turns out to be
solely dependent on a registered adoption deed. The
reason for inclusion of the words "unless and until it is
disproved" shall have to be ascertained in its proper
perspective and as such the presumption cannot but be
said to be a rebuttable presumption. Statutory intent thus
stands out to be rather expressive depicting therein that the
presumption cannot be an irrebuttable presumption by
reason of the inclusion of the words just noticed above. On
the wake of the aforesaid the observations of the learned
single Judge in Modan Singh vs. Mst.Sham Kaur & Ors.
(AIR 1973 P&H 122) stands confirmed and we record our
concurrence therewith."
17. In case of M. Vanaja Vs. M. Sarla Devi (dead) (2020) 5 SCC 307,
Hon'ble Supreme Court upon taking note of relevant provision of the
Act of 1956 held that a plain reading of said provision made it clear that
compliance with the conditions in Chapter-I of the Act of 1956 is
mandatory for adoption to be treated as valid. Two important conditions
as mentioned in Section 7 and 11 of the Act of 1956 are consent of wife
before a male Hindu adopts a child and proof of ceremony of actual
giving and taking adoption.
18. In case of Smt. Dhanno and Ors. Vs. Tuhiram (died ) & Ors. 1996
SCC OnLine P & H 301 while considering the argument that Section
16 of the Act of 1956 required a registered adoption deed to be
believed, held that presumption thereunder, if any, is rebuttable and by
merely placing document on record without proving the ceremony of
deed of adoption it cannot be said that there was a valid adoption. In
that case, Court had noted that factum of adoption must be proved in
same way as any other fact and such evidence in support of adoption
must be sufficient to satisfy the heavy burden that rests upon any
person who seeks to displace natural succession by alleged an
adoption.
19. Hon'ble Supreme Court in case of Moturu Nalini Kanth Vs. Gainedi
Kaliprasad (dead, through Legal Representatives) (2024) 16 SCC
78 , while considering deed of adoption has observed thus:
"54. Ext. A-9 adoption deed records the age of
Venkubayamma as 70 years and states that she was
desirous of taking a male child in adoption as she had
no male issues. The document also records that the
adoptive child would perform the annual shraddha
ceremonies and offering of Pinda and water, as her
natural son, to her ancestors. Nalini Kanth was aged
less than a year when this adoption deed was executed
whereas the adoptive mother, going by the document
itself, was aged 70 years. Being of that age, it is strange
that Venkubayamma would have expected this toddler
to perform her obsequies after her death and such other
ceremonies for her and her ancestors. Further, it is
difficult to believe that a woman of such advanced years
would willingly take on the responsibility of caring for an
infant at that age.
55. Last but not the least, Ext. A-9 adoption deed
mentions that the adoption took place at Sri Sri
Raghunadha Swamy Temple but Ext. A-10 will records
that Venkubayamma adopted the child with the consent
of his parents in the presence of relations at the house
of his parents at Chandramanipeta, Berhampur.
Therefore, as per this document, the adoption took
place, not at a temple, but at the house of the natural
parents ie. PW 2's house. There is, thus, a contradiction
between Ext. A-9 adoption deed and Ext. A-10 will as to
the place where the adoption took place. An attempt
was made to discredit the scribe (PW 6) in this regard,
but this disparity in the two documents which were
drawn up within a short span of time speaks for itself.
56. On the above analysis, we are of the opinion that
the adoption of Nalini Kanth by Venkubayamma on 18-
4-1982 is not proved in accordance with law despite
the registration of Ext. A-9 adoption deed dated 20-4-
1982. The very adoption, itself, is not believable, given
the multitude of suspicious circumstances surrounding
it. Nalini Kanth cannot, therefore, be treated as her heir
by adoption. Further, as Ext. A-10 will dated 3-5-1982
was also not proved in accordance with law, it does not
create any right in his favour. In consequence, Nalini
Kanth is not entitled to claim any right or share in
Venkubayamma's properties. The findings of the High
Court to that effect, albeit for reasons altogether
different, therefore, do not warrant interference."
20. In case of Om Prakash Sharma Alias O.P. Joshi Vs. Rajendra
Prasad Shewda & Ors. (2015) 15 SCC 556, Hon'ble Supreme Court
observed as under:
"7........ The High Court further held that the
adoption of Sitaram Joshi was not proved and
therefore on the death of Moni Debi in 1963 the
entire suit property had devolved on her
daughter Gomati Debi."......
x x x
x x x
x x x
25. In view of the above position demonstrated
by the evidence on record the High Court was
fully justified in not entering into the issue of
validity of the adoption of Defendant No.1."....
21. In case at hand, adoption deed was not prepared and registered
immediately at the time of alleged date of adoption, but it got registered
only after 22 years from the date of alleged adoption.
22. As discussed above, no members of community present at the time of
adoption were named in the plaint or in the evidence of witnesses.
Evidence of PW3 is not inspiring confidence in view of his age to be
only about 12 years at the time of registration of adoption deed and
further his contradictory statement with regard to season in which
adoption alleged to have been taken place, with evidence of PW2.
23. Decision relied upon by learned counsel for respondent/plaintiff in case
of Atluri Brahmanandam (supra) is on different facts. The deed of
adoption in that case was dated 27.04.1966, which appears to be
prepared at the time of adoption and got registered and in that facts of
case Hon'ble Supreme Court taking into consideration Section 16-
Presumption as to registered documents relating to adoption as
provided under Act of 1956 has accepted the document and drawn
presumption .
24. Decision relied upon by learned counsel for respondent in case of
Bijender (supra) is also on different facts. In that case also adoption
deed dated 07.06.1977 (registered deed). The said adoption deed was
signed by adoptive father along with other witnesses.
25. Case of Laxmibai (supra) relied upon by learned counsel for
respondent is also on different facts. In that case also the Court upon
appreciation of evidence found that all the pre- requisites for valid
adoption have been performed like give and take ceremony of valid
adoption was conducted in presence of natural parents and adoptive
parents in presence of large number of persons including several
relatives and deed of adoption was prepared and registration of
adoption deed was done on the same day immediately after its
execution before the Registrar concerned, whereas in case at hand,
there is no evidence in record to show that at the time of alleged
adoption, the deed was prepared. Adoption Deed which is produced as
Ex.5 was registered after about 22 years from the alleged date of
adoption, only on 19.02.1998.
26. Case of Param Pal Singh (supra) relied upon by learned counsel for
respondent is also on different facts. In that case, on the date of
adoption, adoption deed was prepared by Sarpanch of Village
Panchayat and at that time apart from witnesses to deed of adoption
15-20 persons including women were also present.
27. In case at hand from perusal of document Ex. P-5 registered deed of
adoption would show that it was prepared and got registered only in
the year 1998 and therefore this adoption deed cannot be accepted as
gospel truth drawing presumption that adoption has been made in
accordance of the provision of the Act.
28. For the foregoing discussions, in the opinion of this Court, respondent-
plaintiff who wants to take the benefit of alleged adoption was having
heavy burden upon him to prove fact of valid adoption in accordance
with provision of Act of 1956, in which he failed.
29. Learned trial Court fell into error in observing that proceedings of
adoption as provided under Section 11 of the act of 1956 had taken
place in 1983-84 which is perverse to contents of adoption deed
produced by plaintiff himself as Ex.P-5 wherein there is mention of
date of adoption as 25.03.1976. Learned trial Court has heavily relied
upon registered deed of adoption Ex.P-5 which could not have been
done, in absence of admissible evidence of proof of valid adoption as
provided under Section 11 of the Act of 1956 and has arrived at wrong
conclusion of allowing the suit. Accordingly, judgment and decree
passed by leaned trial Court is not sustainable in eyes of law and is
therefore set aside.
30. Appeal is accordingly allowed.
31. Let a decree be drawn accordingly.
Sd/-
(Parth Prateem Sahu)
Judge
Praveen
