Jharkhand High Court
Vikram Mistry Son Of Shivadhar ... vs Manohar Mistry Son Of Jitu Mistry on 28 April, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 180 of 2013
Vikram Mistry son of Shivadhar Mistri, resident of village- Mandaldih,
P.O.- Chitra, P.S- Saraiyahat, Sub-Division & Dist- Dumka (Jharkhand)
..... ..... Appellant
Versus
1. Manohar Mistry son of Jitu Mistry, resident of village- Jonki, P.O.-
Dhanbai, P.S.- Hansdiha, Sub-Division & Dist- Dumka (Jharkhand).
2. Shivdhar Mistry son of Bhudeo Mistry,
3. Hirani Devi wife of Shivdhar Mistry, resident of village- Mandaldih,
P.O.- Chitra, P.S- Saraiyahat, Sub-Division & Dist- Dumka
(Jharkhand).
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellant(s) : Mrs. Sarita Gupta, Advocate
Mr. Abhijeet Kumar, Advocate
For the Respondent(s) :
CAV ON 23.03.2022 PRONOUNCED ON 28 .04.2022
1. Appellant is the defendant who has preferred appeal against the
judgment of affirmance passed in Title Appeal No. 33/2010 arising out of
judgment and decree in Title Suit No. 2/2001.
2. The plaintiff filed the suit for declaration that defendant no.1 was
not validly adopted son by the husband of defendant no. 4 by registered deed
of adoption dated 17.1.01 on the ground that no adoption ceremony was
performed and the said registered deed was a forged document executed by an
imposter.
3. Plaintiff and defendants are agnates governed by Mitakshara
school of Hindu Law. The husband of defendant no. 4 namely, Late Sahdeo
Mistri died issueless leaving behind his widow the defendant No. 4 who was
suffering from ailment since long and he was a man of unsound mind owing
to his excessive age about 70 years and remained confined to bed till death
and died in the mid-night of 23rd January, 2001 at village Jonki. After the
death of Sahdeo Mistry, it came to their knowledge that the defendant No. 2
and 3 had got a deed of adoption executed to grab the land of Sahdeo Mistri
by impersonating Sahdeo Mistri on 17.01.2001. It is contended that neither
any function of adoption was performed nor defendant no.1 ever lived with
the adoptive family, nor his name was changed.
4. Defendant no.1 was the minor adopted child represented through
his guardian ad-litem. Defendant nos.2 & 3 are his natural parents and
defendant no.4 is the wife of the adoptive father Sahdeo Mistri.
5. Defendant no.4 has admitted the case of the plaintiff and disputed
the factum of adoption.
6. Apart from the legal pleas, the main defence of the other
defendants is that adoptive father was never in jointness with other co-sharers
rather he was separate in all respect and it has been denied that he was
suffering from ailment since long and was of unsound mind. Defendant no. 4
as well as her husband both had adopted defendant no. 1 as son after
performing giving and taking ceremony and further executed a deed of
declaration regarding adoption of defendant no. 1 who was renamed and since
then defendant no. 1 was living with them. The adoption ceremony held on
14.08.2000, as well as execution and registration of adoption deed No. 5 of
2001 was in the knowledge of plaintiff and all the villagers.
7. On the basis of the pleadings of the parties the following main
issues were framed by the trial Court:
(i) Is the so called adoption deed bearing No. 5 dated 17.01.2001 of
the Registry Office, Dumka fraudulent, void, illegal, inoperative
and binding on the plaintiff?
(ii) Had the so called adopted child been transferred from the family
of the natural parents to the adoptive family, or so called
adoption deed had been created only to grab the land of Sahdeo
Mistri?
8. The trial court decreed the suit declaring the adoption to be null
and void on the following grounds:
a. The registered deed of adoption was an outcome of fraud, though
it was signed by Sahdeo Mistri.
b. Defendant no.1 was not validly adopted son, nor he was
transferred from the family of natural parents to the family of the
adoptive parents.
c. The mukhagni was not given by adopted son, nor did he perform
the last rites of Sahdeo Mistri.
d. The claim of contesting defendants that the ceremony was held in
presence of gotias and relatives has been negatived by defendant
no.3 in para 17 of her deposition wherein she admits that none of
the family members were invited to witness this ceremony.
Defendant no 2 and defendant no. 3 have contradicted each other
regarding the time when the ceremony for adoption took place.
e. Adoptive mother defendant no. 4 has denied all about adoption.
f. Defendant no.2 has conceded in para 52 of cross examination that
Sahdeo Mistri was confined to bed during the last one month
before his death. It has also been stated by this witness that he
was under treatment for the last ten months and was under
treatment at various places. In these circumstances he was not in
a healthy state of mind to take an independent decision on
adoption.
9. The learned court of appeal concurred with the findings of fact
recorded by the trial court and dismissed the appeal while affirming the
judgment and decree passed by the trial court.
10. The conditions for valid adoption laid down in Section 11 of the
Hindu Adoption and Maintenance Act, 1956 includes the condition of giving
and taking of the child in adoption. Section 11 (vi) reads as under:
"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 a 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 homan, shall not be
essential to the validity of an adoption". It has been held in Kishori
Lal v. Mst. Chaltibai, AIR 1959 SC 504 : "As an adoption results
in changing the course of succession, depriving wives and
daughters of their rights and transferring properties to comparative
strangers or more remote relations it is necessary that the evidence
to support it should be such that it is free from all suspicions of
fraud and so consistent and probable as to leave no occasion for
doubting its truth".
11. There is a presumption under Section 16 of the Hindu Adoption
and Maintenance Act as to registered documents relating to adoption which
provides that whenever any registered document 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 has been held in Jai Singh v. Shakuntala, (2002) 3
SCC 634 : "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"
instead 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" .
12. There is a presumption in favour of its due adoption unless it is
disproved in case of registered adoption. As held in Kishori Lal case (supra)
adoption should be free from suspicious circumstance and in Jai Singh case
(supra) the presumption under Section 16 is a rebuttable presumption. Here in
the present case although the deed of adoption was registered but its
genuineness has been challenged by the plaintiff of being vitiated by fraud.
Adoptive mother has also denied it. Factum of adoption is essentially a
question of fact on which both the Courts below have recorded a finding of
fact that registered deed of adoption stood disproved on the basis of evidence
on record. It has been held that giving and taking of the adoptive child had not
been performed.
Under the circumstance, I find that the instant appeal does not
raise any substantial question of law, to warrant any interference.
The appeal is, accordingly, dismissed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th April, 2022
AFR / Anit
