Jharkhand High Court
Shanker Mistry vs (A) Sri Prasad Sharma on 11 September, 2025
2025:JHHC:27839
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 170 of 2005
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Shanker Mistry, son of Boudhi Mistry, resident of village-Mali Fasiya,
P.S.-Godda (M), Dist.- Godda. ... ... Appellant
Versus
1(A) Sri Prasad Sharma
1(B) Hemkant Sharma
Both sons of Late Shiv Narayan Mistry, both resident of village
Ghat Dumaria, P.S.-Godda (M), Dist.-Godda
. ... ... Plaintiff/Respondents
2. Gopal Mistry, son of Sahdeo Mistry, resident of village-Ghat
Dumaria, P.S. Godda (M), District Godda
... ...Defedant No. 2/Respondent
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For the Appellant: Mr. Manjul Prasad, Sr. Advocate
Mr. Rahul Kr. Gupta, Advocate
Mr. Surya Prakash, Advocate
Mr. Akhouri Prakhar Sinha, Advocate
Mr. Aman Kedia, Advocate
For the Respondents: Ms. Mridula Thakur, Advocate
Mr. Lakhan Chandra Roy, Advocate
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMARSRIVASTAVA
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JUDGMENT
C.A.V. on 10.07.2025 Pronounced on11/09/2025
Instant second appeal has been preferred by appellant/defendant
No.1 being aggrieved and dissatisfied with the judgment and decree
passed by First Appellate Court, learned Additional District Judge-VII,
F.T.C. No. IV, Godda dated 13.05.2005 passed in Title Appeal No. 09 of
2003 whereby and whereunder the judgment and decree passed by the
learned Trial Court has been set aside and appeal was allowed.
2. The original plaintiff Shiv Narayan Mistry has instituted the title
suit No. 87/1996-18/1998 claiming following reliefs:
(a) For declaration that the defendant No. 1 was never adopted by Most.
Kaushalya and no ceremony of taking and giving took place and
defendant was never transferred to the family of Plaintiff by
Kaushalya Devi.
(b) For declaration that the partition deed No. 3843 dated 24.07.1973
was fraudulently executed and the plaintiff never took part in
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execution of the said deed which never came into effect.
(c) For declaration of right, title and confirmation of the possession of
the plaintiff over the suit land as legal heir of Most. Kaushalya. If
plaintiff is found not in possession of any part of suit land, he may be
put into khas possession thereof along with cost of suit and other
reliefs which may deem fit.
3. Admittedly, the suit property mentioned in Schedule-A to the
plaint was recorded in the name of common ancestor Aghori Mistry who
had two sons namely Jalim Mistry and Pancham Mistry. After death of
Aghori Mistry, his sons jointly inherited the suit property. Jalim Mistry
had one son Kadru Mistry who died issueless leaving behind his widow
wife Kaushalya Devi. Pancham Mistry died leaving behind him two sons
namely Lalji Mistry and Goverdhan Mistry. The plaintiff Shiv Narayan
Mistry is son of Lalji Mistry. Goverdhan Mistry died leaving behind him
sole daughter Churani Devi who was married and had one son namely
Gopal and one daughter namely Parmeshwari. Shanker Mistry, defendant
No. 1 is son of Parmeshwari and Gopal is defendant No. 2.
According to plaintiff, after death of Kadru Mistry, his elder
father, he performed his Sharadh in the year 1973 and his widow
Kaushalya Devi being issueless was looked after by the plaintiff both in
her maintenance and cultivation of her landed property. He also
performed Sharadh of Kaushalya Devi after her death in the year 1976.
It is further alleged that Shanker Mistry is sole son of Parmeshwari Devi,
who was married with Boudhi Mistry of village Mal Phasia. It is further
alleged that in the month of August, 1993, Shanker Mistry who was
residing at Mal Phasia came to village of plaintiff i.e. Ghat Dhamsai and
started claiming himself to be adopted son of Kaushalya Devi. He also
produced a forged and manipulated registered adoption deed dated
23.02.1973 and a partition deed dated 24.07.1973 in respect of family
property of Most. Kaushalya Devi. The adoption deed has been
challenged on the ground that no ceremony of giving and taking was
ever performed. The age of Shanker Mistry on the alleged deed was 20
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years and he was also married, therefore, adoption cannot be valid by
taking such a child. One Harihar Mistry was doing Pairwi on behalf of
Churani Devi in the cases and litigations going on in between the
plaintiff and Churani Devi (maternal grandmother of Shanker Mistry).
Shanker Mistry never resided with Kaushalya Devi and for the first time,
in the August, 1993, the plaintiff came to know about the said forged
adoption deed which has shaded clouds on the title and possession over
the property left by Kaushalya Devi and inherited by him and there was
apprehension of forcible dispossession of plaintiff hence this case was
instituted.
4. On the other hand, the defendant No. 1 Shanker Mistry appeared,
contested the suit by filing his written statement and specifically pleaded
that Parmeshwari had two sons out of her wedlock with Boudhi Mistry,
elder son was Umesh and younger son was Shanker Mistry. Umesh died
in the year 1976 as such he was alive at the time of adoption of Shanker
Mistry. It is further stated that at the time of adoption, Shanker Mistry
was only aged about 8 years since Kaushalya Devi was widow and
issueless, hence, she adopted Shanker Mistry through registered deed of
adoption as her son. Kaushalya Devi was in possession of landed
property inherited from her husband which was being cultivated and
looked after by the adopted child Shanker Mistry. The defendants have
also denied any litigation between plaintiff and Most. Churani Devi. The
plaintiff never resided and looked after the property of Kaushalya Devi
rather both were under litigating terms. It is further stated that Kaushalya
Devi died in the year 1984 not in 1976 as pleaded by the plaintiff. It is
also pleaded by defendants that due to paucity of funds, some portion of
disputed property was mortgaged through registered deed of mortgage
No. 2504 dated 03.08.1984 by the defendant No.1 to meet out the
expenses of Sharadh of Kaushalya Devi and some lands were also
mortgaged by Kaushalya Devi herself through deed No. 2081 dated
25.05.1979. The defendant No. 1 was adopted on the occasion of Maghi
Poornima by Kaushalya Devi and since the date of adoption, defendant
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No. 1 was residing with her. Most. Kaushalya was also earning old age
pension under the Government Scheme till 04.08.1983. It is further
alleged that plaintiff himself was present at the time of giving and taking
ceremony of adoption. Pandit Jagarnath Upadhyay was Purohit. It is also
specifically denied that the plaintiff came to know about the alleged
registered adoption deed in the month of August, 1993. In the Revenue
Record also, the name of defendant No. 1 is entered along with Most.
Kaushalya Devi. Therefore, suit of the plaintiff is fit to be dismissed with
cost.
5. On the basis of the pleadings of the parties, following issues were
settled by learned Trial Court for adjudication:
(i) Is the suit as framed maintainable?
(ii) Is the suit bad for non-joinder or mis-joinder for parties?
(iii) Was Shankar Mistry legally and validly adopted son of
Most. Kaushalya and is the adoption deed No. 91 dated
23.02.1973 illegal, inoperative and invalid.
(iv) Has the plaintiff valid title to the suit land and is he in
possession of the same.
(v) To what relief or reliefs, the plaintiff is entitled.
6. The learned trial Court has taken Issue No. (iii) as vital issue in
this case and after evaluating the oral as well as documentary evidence
adduced by the parties, particularly, the oral testimony of D.W.-7
defendant No. 1 himself Shanker Mistry and documentary evidence of
defendants i.e. Exhibit-B (Laal (Red) Card dated 10.06.1998 which is in
the name of Shanker Mistry, S/o Kadru Mistry, Village Ghat Dumariya),
Exhibit-C (Haal Survey of Tasdik Parcha), Exhibit-C/a (Jamabandi No.
2 which is in the name of Kadru Mistry), Exhibit-C/b (Parcha of
Jamabandi No. 4 in the name of Kadru Mistry), Exhibit-D (Voter List of
the year 1995), Exhibit-E (Certified copy of Order dated 5.6.1997
passed in Case No. 74 of 1976 by Executive Magistrate, Godda) and
Exhibit E/a (Certified Copy dated 18.12.1995 passed by S.D.O, Godda
in Cr. Mis. Case No. 1096 of 1995) and arrived at conclusion that
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defendant No. 1 was validly adopted by Most. Kaushalya and is her
adopted son through registered deed dated 23.02.1973.
7. The learned Trial Court has decided other issues i.e. (i), (ii), (iv)
and (v), according to the result of issue No. (iii). Which is self-sufficient
to prove the other issues against the plaintiff and accordingly, dismissed
the suit of the plaintiff on contest with cost.
8. The plaintiff preferred an appeal challenging the judgment and
decree of learned Trial Court vide title appeal No. 09/2003.
9. The learned First Appellate Court has proceeded to decide all the
issues settled by the learned trial Court on the basis of evidence available
on record.
10. As regards, issue no. (iii). After re-appreciating oral as well as
documentary evidence adduced by the parties arrived at conclusion that
the defendant No. 1 in this case has not proved the original adoption
deed before the learned trial Court. Though, certified copy of said
adoption deed was filed there. The original adoption deed has been filed
before the appellate Court on demand for perusal. On perusal of the
same, it transpires that this registered adoption deed was knowingly and
purposely not proved before the lower Court. In the adoption deed, the
minor adoptee Shanker Mistry is one of the parties who is not
represented by any legal or natural guardian. Hence, the registered
adoption deed is void ab initio. It was also observed that surprisingly
enough, the learned Trial Court even on the petition of the
plaintiff/appellant did not mark this certified copy of adoption deed as
Exhibit on admission and refused the prayer vide order dated
03.09.2001. Since the defendant has also not proved the said registered
adoption deed as stated in his pleading so presumption under section 16
of the Hindu Adoption and Maintenance Act, 1956 will not be attracted
in this case and the onus strictly lies on the defendant first party to prove
the factum of adoption by adducing sufficient evidence. It was also held
that that defendant has failed to prove the date and time of giving and
taking ceremony of the adopted child. The learned first appellate Court
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also observed that on the basis of evidence adduced by parties recorded
findings that on the date of adoption, the adopted child was more than
fifteen (15) years old, therefore, he was not capable to be adopted.
Finally, the learned appellate court concluded at paragraph 24 of the
judgment that the burden of proving the adoption through sufficient
evidence lies on the propounder. The testimony of natural father of the
adopted son (D.W.-6) does not find corroboration from any independent
source even from the witness who was alleged to be present at the time
of adoption ceremony. The defendant has also failed to prove his age to
be eight (8) years, on the date of adoption. Therefore, factum of adoption
has not been proved by sufficient evidence and the learned trial Court
erroneously arrived at conclusion that the adoption was legal and valid
merely on the basis of oral evidence of D.W.-6 without producing the
original deed of adoption. Therefore, set aside the findings of learned
trial Court on issue No. (iii) and decided the same in favour of
appellant/plaintiff (respondent herein)
11. Learned appellate Court has also decided the issue No. (iv). It was
found that the plaintiff is agnate of Most. Kaushalya Devi who died
issueless and since the adoption has not been found valid, therefore,
plaintiff has right to succeed the property left by Kaushalya Devi along
with defendant No. 2 who is uncle of the plaintiff, therefore, it was found
that the plaintiff has valid title on the lands left by Most. Kaushalya up to
extent of his share in the property left by her.
12. As regards, issue No. (ii). The same was not pressed by the
parties. It was also decided in favour of plaintiff.
13. As regards, issue No. (i) and (v). On the basis of above vital
issues, it was held that the suit as framed is maintainable and plaintiff is
entitled for the relief as claimed to the extent of his share in the suit
property as discussed above. Accordingly, the impugned judgment and
order of learned Trial Court was set aside and appeal was allowed.
14. The present second appeal has been preferred by the sole
appellant/defendant No. 1 which has been admitted vide order dated
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15.01.2010 on the following substantial questions of law: -
(i) Whether the learned Court of appeal below erred in
throwing burden of proof on the defendant that the adoption deed
was registered, which carries presumption of correctness and
genuineness with it?
(ii) Whether the learned Court of appeal below seriously erred
in ingoing important documentary evidence viz. Ext. no. B, C,
D/a, C/b, D, E and E/a which clearly established that Shanker
Mistry defendant No. 2 exercising his all right with respect to land
of Kausalya Devi as his son and thus erred in reversing the
judgment and decree of the learned trial Court?
(iii) Whether the finding of the learned Court of appeal below
on issue no. 3 holding the adoption registered deed as void ab-
initio on the ground that the minor Shanker Mistry the adopted
son was not represented through any legal and natural guardian is
erroneous, whereas the plaintiff in the Court below had filed an
application for making the certified copy of the adoption deed and
the same was refused vide order dated 3.9.2001?
15. Before proceeding to adjudicate the substantial questions of law,
it is desirable to extract the relevant provisions of Hindu Adoption and
Maintenance Act, 1956 for proper appreciation of the case which are as
under: -
"5. Adoptions to be regulated by this
Chapter. --
(1)No adoption shall be made after the
commencement of this Act by or to a Hindu
except in accordance with the provisions
contained in this Chapter, and any adoption
made in contravention of the said provisions
shall be void.
(2)An adoption which is void shall neither
create any rights in the adoptive family in
favour of any person which he or she could
not have acquired except by reason of the
adoption, nor destroy the rights of any person
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in the family of his or her birth.
6. Requisites of a valid adoption.―No
adoption shall be valid unless--
(i) the person adopting has the capacity, and
also the right, to take in adoption;
(ii) the person giving in adoption has the
capacity to do so;
(iii) the person adopted is capable of being
taken in adoption; and
(iv) the adoption is made in compliance with
the other conditions mentioned in this
Chapter."
"7. Capacity of a male Hindu to take in
adoption.―Any male Hindu who is of sound
mind and is not a minor has the capacity to
take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall
not adopt except with the consent of his wife
unless the wife has completely and finally
renounced the world or has ceased to be a
Hindu or has been declared by a court of
competent jurisdiction to be of unsound
mind."
Explanation.―If a person has more than one
wife living at the time of adoption, the consent
of all the wives is necessary unless the consent
of any one of them is unnecessary for any of
the reasons specified in the preceding
proviso."
"8. Capacity of a female Hindu to take in
adoption.―Any female Hindu who is of sound
mind and is not a minor has the capacity to
take a son or daughter in adoption:
Provided that, if she has a husband living, she
shall not adopt a son or daughter except with
the consent of her husband unless the husband
has completely and finally renounced the
world or has ceased to be a Hindu or has
been declared by a court of competent
jurisdiction to be of unsound mind."
"9. Persons capable of giving in
adoption.―(1)No person except the father or
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mother or the guardian of a child shall have
the capacity to give the child in adoption.
(2) Subject to the provisions of sub-section
(4), the father or the mother, if alive, shall
have equal right to give a son or daughter in
adoption:
Provided that such right shall not be exercised
by either of them save with the consent of the
other unless one of them has completely and
finally renounced the world or has ceased to
be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound
mind.]
(3)* * * * *
(4) Where both the father and mother are
dead or have completely and finally
renounced the world or have abandoned the
child or have been declared by a court of
competent jurisdiction to be of unsound mind
or where the parentage of the child is not
known, the guardian of the child may give the
child in adoption with the previous permission
of the court to any person including the
guardian himself.
(5) Before granting permission to a guardian
under sub-section (4), the court shall be
satisfied that the adoption will be for the
welfare of the child, due consideration
beingfor this purpose given to the wishes of
the child having regard to the age and
understanding of the child and that the
applicant for permission has not received or
agreed to receive and that no person has
made or given or agreed to make or give to
the applicant any payment or reward in
consideration of the adoption except such as
the court may sanction.
Explanation.―For the purposes of this
section―
(i) the expressions "father" and "mother" do
not include an adoptive father and an
adoptive mother;
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(ia) "guardian" means a person having the
care of the person of a child or of both his
person and property and includes―
(a) a guardian appointed by the will of the
child's father or mother, and
(b) a guardian appointed or declared by a
court; and
(ii) "Court" means the city civil court or a
district court within the local limits of whose
jurisdiction the child to be adopted ordinarily
resides."
"10. Persons who may be adopted.―No
person shall be capable of being taken in
adoption unless the following conditions are
fulfilled, namely:―
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless
there is a custom or usage applicable to the
parties which permits persons who are
married being taken in adoption;
(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage
applicable to the parties which permits
persons who have completed the age of fifteen
years being taken in adoption."
"11. Other conditions for a valid
adoption.―In every adoption, the
followingconditions 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;
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(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 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 dattahomam
shall not be essential to the validity of an
adoption."
"12. Effects of adoption.―An adopted child
shall be deemed to be the child of his or her
adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all the ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created
bythe adoption in the adoptive family:
Provided that―
(a) the child cannot marry any person whom
he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted
child before the adoption shall continue to
vest in such person subject to the obligations,
if any, attaching to the ownership of such
property, including the obligation to maintain
relatives in the family of his or her birth;
(c) the adopted child shall not divest any
person of any estate which vested in him or
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her before the adoption."
....
"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."
16. The first substantial question of law as relied upon by learned
counsel for the appellant regarding burden of proof of the adoption in
this case, it is stoutly argued that the learned first appellate court has
wrongly shifted the burden of proof of the adoption upon the
defendant/appellant.
In the instant case, the admitted position is that both parties are
decedents of common ancestor i.e. Aghori Mistry who left behind him
two sons namely Jalim and Pancham Mistry. Jalim died leaving behind
him one son namely Kadru Mistry whose widow was Kaushalya Devi
who died issueless. Now the landed property of Kadru Mistry by way of
natural course of succession would devolve to his brother Pancham
Mistry and his decedents. It is also admitted that Pancham Mistry had
two sons namely Lalji and Goverdhan. Original Plaintiff was the son of
Lalji Mistry and the defendants are decedents of Goverdhan Mistry
through daughter Churani Devi as Goverdhan had no son. Both the
defendants are son and great grandson of Churani Devi. The effect of
adoption of Shanker Mistry excludes original plaintiff from succeeding
the landed property left by Kadru Mistry.
17. In the case of Rahasa Pandiana (dead) by LRS vs. Gokul Nanda
Panda, AIR 1987 SC 962, the Hon'ble Apex Court has observed that
since the adoption divert the normal and natural course of succession, the
Court must be extremely alert and vigilant to guard against being
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ensnared by scammers who indulge in unscrupulous activities. If there
are any suspicious circumstances, the burden is on one who claims to
have been adopted to dispel the same beyond reasonable doubt. In a case
of an adoption which is not supported by a registered document or any
other evidence of a clinching nature if there exist suspicious
circumstances, the same must be explained to the satisfaction of the
conscience of the Court by the party contending that there was an
adoption.
18. In Pentacota Satynarayna & Ors. Vs Pentakota Seethavatnam &
Ors., AIR 2005 SC 4362. The Apex Court referred to the heavy onus that
lies upon a person who sets out of a case of adoption and observed that
while considering the question whether an adoption is genuine or not, the
propounder is obliged to dispel the cloud of suspicion and must satisfy
the conscience of the Court about such an adoption.
19. In the case of "Addagada Raghavamma & Anr. Vs. Addagada
Chenchamma & Anr., AIR 1964 SC 136" and "Kishori Lal vs. Mst.
Chaltibai, AIR 1959 SC 504", it was observed that an adoption must be
proved like a fact. It is essential to the validity of adoption that the
ceremony of "giving and taking" must be proved by the propounder.
20. In the instant case, it was incumbent upon the defendant to bring
on record the original registered adoption deed and also to prove that the
"giving and taking" ceremony has actually taken place and the child was
given in adoption by his natural father with the consent of mother of the
child which was accepted by the adoptive mother or father, as the case
may be. It appears that the learned Trial Court proceeded to decide the
validity of adoption only on the basis of oral evidence of the parties. It
did not find fit to require the original deed of adoption to be proved in
the evidence which attaches a presumption of law. The result was that
neither party has brought on record the adoption deed although certified
copy of it was filed by the plaintiff but not marked as Exhibit and the
defendant produced the original copy of adoption deed on demand by the
appellate Court for perusal at the appellate stage and also no prayer was
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made for bringing the adoption deed on record. The learned first
appellate Court who had an opportunity to see the original adoption deed
has observed that it is directly executed in favour of the minor child and
not through his natural father or any legal guardian. The giving and
taking ceremony are alleged to have taken place on the same day of
registration of adoption deed but oral testimony of witnesses has
completely failed to prove the same to the judicial conscience of the
Court. It has also been observed that the defendant never resided with his
alleged adoptive mother Kaushalya Devi rather she was being looked
after by the plaintiff throughout her life including her Sharadh ceremony.
21. In view of the above scenario of this case, the heavy burden of
proof lies upon the defendant to prove the genuineness of the adoption in
his favour which has effect of displacing the natural course of
succession. Therefore, there appears no illegality throwing the burden of
proof on the defendant by the first appellate court. Therefore, I do not
find any legal substance in the above first substantial question of law
raised on behalf of the appellant which is decided negatively against the
appellant.
22. The next substantial question of law relied upon by the appellant
is related to non-consideration of the documentary evidence of the
defendant/appellant, particularly, Exhibit B, C, D, and E(series).
23. Now, I proceed to consider the documentary evidence of
defendant/appellant i.e. Exhibit-B which is the Laal Card issued on
10.06.1998 in the name of Shanker Mistry, son of Kadru Mistry. In this
document also, Shanker Mistry not shown as adoptive son. Exhibit-B/a
is Old Age Pension Passbook of Most. Kaushalya Devi which shows that
she has received pension till 04.08.1983. Exhibit-C is correction slip in
Hall Survey Parcha including the name of Shanker Mistry as son of
Kadru Mistry, Gopal Mistry along with Shiv Narayan Mistry (plaintiff)
but this document is not issued by any competent authority and does not
bear signature of any officer bearer to be certified copy from the
Government record. Exhibit C/a is C/C of Jamabandi No. 2 which is in
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the name of Kadru Mistry, Lalji Mistry (father of plaintiff) and
Goverdhan Mistry which is apparently not in favour of Shanker Mistry
as adoptive son of Kadru Mistry. Exhibit-C/b is recent Survey Parcha,
pertaining to land of Jamabandi No. 4 in which also name of Raiyats are
Kadru, Jalim, Lalchand Mistry, Goverdhan Mistry and it does not
include the name of Shanker Mistry as adoptive son of Kadru Mistry.
Exhibit-D is the copy of electoral role of Gooda Assembly Constituency
for the year 1995 wherein at Sr. No. 538, Shanker Mistry son of Kadru
Mistry finds place but there is no whisper as adoptive son. Exhibit-E is
the C/C of Order dated 5.6.1997 passed in T.R. No. 74 of 1996 whereby
a proceeding under Section 107/16 was shown in between Shiv Narayan
Sharma and Sikandra Nadaf & Ors. Exhibit-E/a is the copy of order
dated 18.12.1995 passed in Cr. Misc. Case No. 1096 of 1995 whereby a
proceeding under Section 144 Cr.P.C. vide order dated 18.12.1995 and
the same was dropped vide order dated 20.02.1996 due to lapse of 60
days from the date of passing the preliminary order.
All the above documentary evidence of appellant/defendant
adduced during trial have no bearing upon the genuineness of adoption
and these documents are not evidence of exercising rights in respect to
lands of Kaushalya Devi as her adoptive son. It is settled law that
adopted son or daughter have no vested right in the landed property of
adoptive mother or father only by virtue of registration of adoption deed.
Such adoptive child has no exclusive right to mortgage or otherwise
charge the property of adoptive mother or father, as the case may be. The
adopted child has the right to inheritance only after death of adoptive
mother or father as the case may be. Therefore, any attempt made by the
appellant/defendant for correction in the Jamabandi including his name
during lifetime of his alleged adoptive mother has no legal
consequences.
24. In view of the specific findings recorded by me in respect of
substantial questions of law No. (i) and (ii), as a necessary corollary, the
answer of third substantial question of law has also been given and there
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appears no necessity to record further finding regarding validity of the
adoption deed involved in this case which was never brought on record
and proved by the defendant/appellant.
25. In view of the above discussion and reasons, I find that this appeal
involves no substantial question of law as formulated in this appeal. I
further find that the learned trial Court has misdirected itself while
appreciating the evidence on record as regards adoption deed created in
favour of defendant only on the basis of oral evidence of the parties.
Therefore, the first Appellate Court has rightly and with sound reasons
differed with the reasonings of the learned Trial Court and decided all the
issues afresh on the basis of evidence available on record. The first
appellate Court has rightly disbelieved the execution of any adoption
deed in favour of defendant No. 1 Shanker Mistry in accordance with
law. It was also found that the plaintiff has also succeeded the right, title
and interest to the extent of his share in the property left by Kadru
Mistry.
26. I do not find any illegality or infirmity in the impugned judgment
and decree passed by learned First Appellate Court calling for any
interference in this appeal. This second appeal appears to be devoid of
merits and accordingly, the same is dismissed. Both the parties shall
bear their own cost.
27. Pending I.A.s if any, stands disposed of.
28. Let a copy of this judgment along with the trial/appellate court
record be sent back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court
Dated 11/09/2025
Basant/N.A.F.R.
