Raju vs Kalan Kanade
2025 Latest Caselaw 3856 MP

Madhya Pradesh High Court

Raju vs Kalan Kanade on 13 August, 2025

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S Kalgaonkar

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 NEUTRAL CITATION NO. 2025:MPHC-IND:21882
        IN THE HIGH COURT OF MADHYA PRADESH

                                  AT I N D O R E
                                        BEFORE
         HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
                        ON THE 13TH OF AUGUST, 2025

                     SECOND APPEAL NO. 2534 OF 2024
                                      RAJU
                                      Versus
                                  KALAN KANADE
Appearance:
        Shri Lucky Jain, advocate for the appellant.
        Shri Pankaj Kumar Sohhani, advocate for the respondent.
---------------------------------------------------------------------------------------------

                                    ORDER

Heard on admission.

2. Records of the Court of first instance and the first Appellate Court have been received.

3. Heard learned counsel for the appellant on admission of appeal.

4. Plaintiff Kalan Kanade (respondent herein) had filed a civil suit against appellant / defendant Raju for declaration of title and vacant possession of the disputed house ad-measuring 10 ft x 15 ft. situated at Kawar Colony, Badwah. She had further prayed for declaration that the adoption deed dated 04/07/2006 is void and not binding on her. Defendant Raju filed counter claim along with written statement and prayed for relief of declaration that he is the adopted son of Tukaram and Kalanbai. He also prayed for declaration

NEUTRAL CITATION NO. 2025:MPHC-IND:21882 of title to the part of the house in his possession and permanent injunction to protect his possession.

5. The Court of first instance i.e. First Civil Judge Class-II, Badwah, District - West Nimad, vide judgment and decree dated 28/07/2018 passed in RCS no. 23-A of 2016, rejected the relief claimed in the counter claim filed by defendant Raju and granted decree of vacant possession in favour of the plaintiff. Defendant Raju preferred appeal assailing the judgment and decree of the Court of first instance. Learned 3rd District Judge, Badwah, vide judgment and decree dated 29/08/2024 passed in RCA no. 32 of 2018, dismissed the appeal and affirmed the judgment and decree of the Court of first instance. Present second appeal is filed assailing the concurrent findings of the Court of first instance and the first Appellate Court.

6. Learned counsel for the appellant, in addition to the facts and grounds mentioned in the appeal memo, contended that the Court of first instance and the first Appellate Court committed error in concluding that appellant / defendant Raju is not an adopted son of plaintiff Kalan Kanade and her husband Tukaram. Learned counsel referring to the evidence of Radheshyam (DW-3), contended that rituals of adoption as per the custom of the parties stand proved. Defendant Raju was residing with Kalan Kanade and her husband Tukaram for many years. The documentary evidence submitted by the defendant also shows that he was represented as son of Tukaram, therefore, both the Courts committed gross error amounting to perversity in concluding that the defendant had failed to establish his adoption by Tukaram and Kalan Kanade. Defendant Raju was in possession of the disputed property by virtue of succession from Tukaram, his adoptive father, therefore, the impugned judgment and decree suffer from illegality and perversity.

NEUTRAL CITATION NO. 2025:MPHC-IND:21882

7. Learned counsel referred to substantial questions of law proposed in appeal memo as under :

i) Whether the Ld. Appellate Court was justified in affirming the judgment and decree dated 28.07.2018 passed by the Ld. Trial Court in the suit filed by the Respondent/Plaintiff ?

ii) Whether both the Ld. Appellate Court and Ld. Court of first instance were Justified in not dealing with the counter claim filed by the appellant/defendant No. 1 while passing the impugned judgment and decree dated 29.08.2024 and 28.07.2018?

iii) Whether the Ld. Appellate Court and Ld. Court of first instance were justified in ignoring the settled position of law that a counter claim has to be treated as a separate suit filed by a Plaintiff?

iv) Whether the Ld. Appellate Court and Ld. Court of first instance were justified in passing an unreasoned judgment and decree with respect to the counter claim filed by the Appellant/defendant No. 1?

v) Whether the Ld. Appellate Court and Ld. Court of first instance have passed a reasoned order so far as counter claim is concerned?

vi) Whether the judgment and decree passed by the Ld. Court of first instance and First Appellate Court is sustainable under the law?

8. Learned counsel for the appellant requested that the appeal be heard on merit on proposed substantial questions of law.

9. Per-contra, learned counsel appearing for the respondent submitted that Kalan Kanade has specifically denied adoption of Raju by herself and her husband Tukaram. Both the Courts below, on proper appreciation of evidence on record, had rightly concluded that the defendant failed to establish his adoption.

10. Heard both the parties and perused the records.

11. The Supreme Court, while considering the question of proof of adoption and essential requirements for valid adoption, in the case of L. Devi Prasad (dead) by Lrs Vs. Smt. Tribeni Devi and others reported in 1970(1) SCC 677 observed as under :

NEUTRAL CITATION NO. 2025:MPHC-IND:21882

7. While considering the question of proof of the adoption pleaded, we must bear in mind the fact that the same is alleged to have taken place in 1892 nearly 54 years before the present suit was instituted. Therefore, naturally, it was extremely difficult for Shyam Behari Lai to adduce any oral evidence in proof of that adoption. All the persons who could have known about the adoption are likely to have died. Shyam Behari Lai himself could not speak to that adoption. His evidence is at best hearsay. It is true, as observed by this Court in Addagada Raghayamma and anr. v. Addagada Chenchamma and anr. (1964) 2 SCR 933 that it is settled that a person, who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Again as held by this Court in Lakshman Singh Kothari v. Smt. Rup Kanwar (1962) 1 SCR 477, that in order that an adoption may be valid under the Hindu law, there must be a formal ceremony of giving and taking. This is true of the regenerate castes as well as of the Sudras. Although no particular form is prescribed for the ceremony, the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him, the nature of the ceremony varying according to the circumstances. In the course of the judgment Subba Rao J. (as he then was) who spoke for the Court quoted with approval the following observations of Gopalchandra Sarkar in his book on Hindu Law, 8th Edn.;

"The ceremonies of giving and taking are absolutely necessary in all cases. These ceremonies must be accompanied by the actual delivery of the child; symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the boy is not sufficient. Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption nor acknowledgment, sufficient by themselves to constitute legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony being essential for that purpose."

8. That is also the view expressed in Mayne's Hindu Law wherein it is observed that the giving and receiving are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu law does not require that there shall be any particular form so far as giving and acceptance are concerned; for a valid, adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose.

9. There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal. But as observed by the Judicial Committee of the Privy Council in Rajendrao Nath Holder v. Jogendro Nath Banerjee and ors. 1871 SCC Online PC 11; that although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long period during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact was to be

NEUTRAL CITATION NO. 2025:MPHC-IND:21882 favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family; that in the case of a Hindoo, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of. his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In Rup Narain and anr. v. Mst. Gopal Devi and ors; 1909 SCC Online PC 3, the Judicial Committee observed, that in the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father's estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano and anr. v. Gopalkrishna Padhano and ors. AIR 1964 Orissa 117; held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decisions referred to above.

10. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive, father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence if after taking an overall view of the evidence adduced in the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well.

12. In the case of M. Vanaja Vs. M. Sarla Devi (dead) reported in (2020) 5 SCC 307, it was held as under :