P. Shankar Rao vs Public in General

T.P. Sharma, J.—This revision u/s 115 of the Code of Civil Procedure, 1908 is directed against the order dated 20-4-2001 passed by the District Judge, Durg, in Misc. Civil Appeal No. 1/2000, affirming the order dismissing the application for issuance of succession certificate u/s 374 of the Indian Succession Act, 1925, passed by the 3rd Civil Judge Class-I, Durg vide order dated 27-8-99 in Succession Case No. 133/98.

Brief facts of the case are that the present applicant has filed an application for issuance of succession certificate on the ground of being adopted son of Late Ramlu who was working in South Eastern Railway at BMY Charoda. After providing opportunity of hearing, the trial Court has dismissed the application and the same was affirmed in appeal on the ground that the present applicant has failed to establish the fact that he is the adopted son of Late Ramlu.

I have heard learned Counsel for the applicant and perused the impugned order as also the record of the Court below.

Order impugned is challenged on the ground that the Court below has committed illegality by not raising presumption of valid adoption of the applicant u/s 16 of the Hindu Adoptions and Maintenance Act, 1956 (for short ''the Act, 1956'').

Learned Counsel for the applicant argued that the applicant who is a Hindu has filed certified copy of the registered adoption deed (Annexure A-1) which is a public document under Clause (2) of Section 74 of the Indian Evidence Act, 1872 (for short ''the Act, 1872''). The public officer is under obligation u/s 76 of the Act, 1872 to issue certified copy and by production of certified copy, contents of public document may be proved u/s 77 of the Act, 1872. Learned Counsel submits that document for adoption of a son is compulsorily registrable u/s 17(3) of the Registration Act, 1908 (for short ''the Act, 1908''). Registering authority is competent to issue certified copy of the document u/s 57(1) of the Act, 1908 and such certified copy is admissible for the purpose of proving the contents of the original document u/s 57(5) of the Act, 1908. Learned Counsel further submits that the applicant has proved essential ingredients for valid presumption of adoption u/s 16 of the Act, 1956, but the Court has not considered the same.

Learned Counsel for the applicant placed reliance in the matter of Jai Singh Vs. Shakuntala, in which the Apex Court has held that presumption u/s 16 of the Act, 1956 is a rebuttable presumption. Learned Counsel further placed reliance in the matter of Pathivada Ramaswami and another Vs. Korda Surya Prakasa Rao and another, in which the Andhra Pradesh High Court has held that production of registered document of adoption gives rise to presumption that adoption has been made in compliance with provisions of the Act. 1956 unless disproved, and proving of giving and taking of adopted child is not necessary. Learned Counsel also placed reliance in the matter of S. Madasamy Thevar v. A.M. Arjuna Raja AIR 2000 Mad 465 in which it has been held by the Madras High Court that certified copies of documents obtained from Registrar''s Office under provisions of the Act, 1908 are secondary evidence, but admissible in evidence u/s 57(5) of the Act, 1908 and Sections 65(e) and (f) of the Act, 1872. Learned Counsel further placed reliance in the matter of Devgonda Raygonda Patil Vs. Shamgonda Raygonda Patil and another, in which it has been held by the Bombay High Court that in case of registered adoption deed proof of giving and taking ceremony of child is not necessary. Learned Counsel also placed reliance in the matter of Surendra Kumar Vs. Nathulal and Another, in which it has been held by the Apex Court that calling of attesting witness to prove the execution of any document requiring attestation is not necessary when the document is registered in accordance with provisions of the Act, 1908 unless execution of such document is specifically denied by the person who is alleged to have executed the document.

Learned Counsel for the applicant also submits that presumption of valid adoption be drawn u/s 16 of the Act, 1956 even in absence of filing of original document in the light of Sections 17 and 57(5) of the Act, 1908 and Sections 74, 76 and 77 of the Act, 1872.

I have perused the order impugned and records of the Courts below. Provision regarding presumption as to registered documents relating to adoption u/s 16 of the Act, 1956 reads as follows:

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.

According to Section 17(3) of the Act, 1908 document relating to adoption is compulsorily registrable and registering authority is competent to issue certified copy u/s 57(1) of the Act, 1908. Certified copy is admissible for the purpose of proving the contents of the original documents u/s 57(5) of the Act 1908.

It is not disputed that public records kept in any State of private documents is a public document u/s 74(2) of the Act, 1872, but such private document is a private document and certified copy may be obtained u/s 76 of the Act, 1872, same is admissible in evidence on its production to prove the contents of such private document.

The Indian Evidence Act, 1872 and the Registration Act, 1908 are general law for registration and proving of the document, but special provision has been made in the Act, 1956 for raising presumption of valid adoption on the basis of registered document. Essential ingredients for presumption of valid adoption on the basis of registered document u/s 16 of the Act, 1956 are as follows:

(1) the document must be registered under any law for the time being in force;

(2) the document must be produced before any Court;

(3) the document must purport to record the adoption made by the person; and

(4) the document must be signed by the person giving and the person taking the child in adoption.

The presumption is rebuttable and if the aforesaid essential ingredients are proved then the Court may presume that the person has legally adopted the child. This is a special provision. If the requirement of Section 16 of the Act, 1956 is fulfilled on behalf of the parties, then any other formalities or evidence as required u/s 11 of the Act, 1956 are not required to be proved by the parties.

In the present case, admittedly, the applicant has not filed any original registered deed of adoption containing signatures of the person giving and the person taking the child in adoption before the Court below, but the applicant has filed certified copies of registered adoption deed obtained from the registering authority. In absence of essential ingredients as required u/s 16 of the Act, 1956 no presumption for valid adoption can be drawn, but only in absence of presumption or in absence of any original document claim of the applicant could not be thrown away and the applicant may prove the factum of adoption by adducing other evidence as required u/s 11 of the Act, 1956. In this case, the applicant, who is the alleged adopted son of Late Ramlu, was aged about 20 years on the date of his evidence and he has deposed that he is adopted son of Late Ramlu and has filed the copy of deed of adoption which is dated 25-2-91. It appears that at the time of such adoption the applicant was aged about only 12 years. Even he has not deposed any facts relating to adoption. Another witness D. Sarthi (AW-2) has only deposed that the applicant is adopted son of Late Ramlu. This witness has also not deposed any facts relating to adoption or even his presence at the time of the alleged adoption.

In absence of any evidence relating to adoption or in absence of presumption of valid adoption u/s 16 of the Act, 1956, the Court has dismissed the application for issuance of succession certificate. The Court below has neither exceeded the jurisdiction vested on it nor failed to exercise the jurisdiction vested on it. Issuance of succession certificate is a summary proceeding, it does not decide the final rights and liabilities of the parties. The applicant is having remedy to adjudicate his claim before the competent civil Court, therefore, the Court below has even not committed any illegality which has effected the substantial right of the applicant.

For the foregoing reasons, I do not find any substance in the revision, same is liable to be dismissed and it is hereby dismissed. No order as to costs.