Gajjan Singh and others vs Bachan Singh and others

C.G. Suri, J.—This is a second appeal by a defendant whose adoption by Uttam Singh deceased, evidenced by a registered deed, Exhibit

D. 1, dated 3-10-(sic), has been set aside by the two courts below on the concurrent findings of fact that there was no evidence of appellant by

the deceased as an adopted son before or after the execution of the formal deed. The suit challenging the adoption under custom had been filed by

the appellant''s uncle Bachan Singh, plaintiff-respondent No. 1, who is also the real brotber of Uttam Singh deceased and the appellant''s natural

father Jaimal Singh, defendant-respondent No. 2. The following pedigree table (Shajra Nasab) of the parties is not dispute:-

The execution and registration of the adoption deed, Exhibit D. 1, by Uttam Singh deceased are admitted by Sbri Naginder Singh, the Learned

Counsel for the plaintiff-respondent. The concurrent findings of fact of the two courts below that the execution of the formal deed was not

accompanied by any treatment between the parties to the adoption as father and son is based on an appraisal of the oral evidence examined by the

parties. This finding is further confirmed by the fact that after the death of Uttam Singh deceased on 2nd July, 1956, the mutation of succession in

respect of his land was attested in favour of his widow Smt. Sham Kaur. The widow had lived on after the death of her husband for a further

period of more than six years. If Gajjan Singh''s adoption by Uttam Singh had been treated as valid, he would have been entitled to succeed

equally with Sham Kaur on the death of her husband Uttam Singh on 2nd July, 1956 Gajjan Singh had given his age as 40 years when he had

appeared in court as his own witness as D.W. 1 on 25th March, 1965 This would mean that he was more than 30 years of age when Uttam Singh

died. For more than six years, Gajjan Singh or his father Jaimal Singh, defendant-respondent No. 2, had not cared to assert their rights under the

adoption in dispute even though this adoption would have brought the entire land of Uttam Singh to their family branch. Shri Sarin, the Learned

Counsel for the appellant, argues that the Hindu Succession Act, 1956 had come into force only about a fortnight before Uttam Singh''s death and

that the Patwari was not aware of the recent changes in law when he entered the mutation of succession on Uttam Singh''s death. This argument

does not seem to help Shri Sarin because if the land was to devolve on Uttam Singh''s death according to custom which was prevalent before the

coming into force of Hindu Succession Act, then Gajjan Singh would have excluded even his adoptive mother Sham Kaur. Gajjan Singh appellant

has no doubt stated on oath that he had started cultivating Uttam Singh''s land during the latter''s lifetime and had continued to do so to the present

day, There is also some force in the argument advanced by Shri Sarin that a mutation order attested by a Revenue Officer does not decide any

question of title. Gajjan Singh could also have allowed the name of his widowed adoptive mother to continue to be shown in the revenue records

as the owner so as not to hurt her feelings but his conduct in not asserting his rights under the adoption for mare than six years after Uttam Singh''s

death may appear to be consistent with the concurrent findings of fact of the two courts below that the execution of the formal deed of adoption

was not proved to have been accompanied by any treatment of father and son between the parties to that adoption. Such a finding of fact based

on oral, circumstantial and documentary evidence cannot possibly be disturbed in second appeal. Shri Sarin then argues that in view of section 16

of the Hindu Adoption and Maintenance Act, 1956 the onus of proving the adoption had been wrongly placed on the appellant Section 16 runs as

follows:-

Presumption as to registered documents relating to adoptions - 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 male in compliance with the provisions of this Act unless and until it is disproved.

The presumption raised by this section would arise only if the adoption deed is executed and registered in the manner specified. The section

requires the adoption deed should be signed not only by the person taking the child in adoption but also by the person giving away that child. There

is no evidence on record as to the person who had given the child in adoption. The appellant''s father Jaimal Singh is alive. Appellant''s elder

brother Sajjan Singh had appeared as his witness. There is no indication in the evidence of these witnesses or in recitals in the deed as to who had

given Gajjan Singh in adoption. The formal ceremony of adoption would consist of the natural and defacto guardian handing over or placing the

child in the lap of the person adopting that child. The consent of the mother may have to be taken. All due formalities can be presumed to have

been gone into only where the formal deed is shown to have been executed and registered in the manner specified in lection 16 of the Hindu

Adoption and Maintenance Act, 1956. The ruling relied upon by Shri Sarin namely Basdee Bhardwaj v. Ram Sarup and others ILR (1968) 2

P&H. 231, can be of avail to him only if section 16 is shown to have been strictly complied with. I, however, find that the registered deed, Exhibit,

D. 1, does not have the signatures of the person, if any, giving the child away in adoption. Even independently of this document there is no

evidence that the part of the ceremony which requires the formal handing over of the child by his natural or it fceio guardian bad been gone into.

The appeal is accordingly dismissed. Shri Naginder Singh, the Learned Counsel for the respondents, does not press for costs.