Vishambher alias Genda Ram vs Kaththuram and Others

T.P. Sharma, J.—By this appeal, the appellant has challenged the legality and propriety of the judgment and decree dated 16-12-91 passed by the Second Additional District Judge, Ambikapur, in Civil Appeal No. 62-A/86, affirming the judgment and decree of declaration and permanent injunction dated 7-3-86 passed by the Second Civil Judge Class II, Ambikapur, in Civil Suit No. 157-A/85.

Judgments and decree are challenged on the ground that once son is adopted by the adoptive father and mother, then subsequently adoption cannot be cancelled and adoptive son become natural son in the family of adoptive father and mother.

Brief facts giving rise for filing of this appeal is that Bechni (original plaintiff) and her husband Baldev had executed the document in the style of adoption deed (Exh. D-3). Baldev was originally owner of the property including the suit land. He executed gift deed (Exh. P-l) in favour of his wife original plaintiff Bechni Bai and gifted his all property on 22-11-63 about one month. After execution of sale deed on 17-12-63, they have executed alleged adoption deed (Exh. D-3). After lapse of 17 years on 30-11-81 and after death of Baldev, Bechni Bai has again executed cancellation of adoption deed vide Exh. P-4.

Suit for declaration and permanent injunction against the present appellant (alleged adoptive son) was filed by Bechni Bai (alleged adoptive mother). Suit was decreed. The present appellant has preferred an appeal against the judgment and decree of the Trial Court. During pendency of the appeal and after judgment and decree of the suit, sale deed relating to property in dispute was executed by Bechni Bai in favour of respondent Nos. 1 to 8 on 17-7-86. The present appellant alleged adoptive son has contested the suit and pleaded that he is adoptive son and was adopted by the valid adoption deed (Exh. D-3) and he become natural son in the family of Bechni Bai. Any subsequent cancellation of the adoption deed is invalid and illegal. Once person becomes adaptive son having the status of natural son then subsequent deed of cancellation on adoption deed is of no use. The present appellant was co-owner of the property during the life time of Bechni Bai and after death of Baldev and Bechni Bai their properties devolved only upon the present appellant.

For the decision of the present appeal, the following substantial question of law was formulated vide order dated 15-10-1992:

Whether the finding that the adoption of the appellant is not, in accordance with law, is legal and valid, in view of registered Adoption Deed (Exh. D-3) ?

I have heard Dr. N.K. Shukla, Senior Advocate with Mr. Dilip Dubey, Counsel for the appellant, Mr. Sushil Dubey, Counsel for respondent Nos. 1 to 8 and Mr. Rajendra Tripathi, Panel Lawyer for respondent No. 9/State and perused the judgment impugned and records of the Courts below.

Learned Counsel for the appellant vehemently argued that once adoption is made in accordance with the Hindu Adoptions and Maintenance Act, 1956 (in short ''the Act, 1956'') then same is irrevocable and cannot subsequently be revoked by any deed of revocation. The Court may presume the valid adoption in accordance with Section 16 of the Act, 1956. For lawful adoption, the parties are required to satisfy all essential ingredients of Sections 6 - 9 of the Act, 1956. Any adoption cannot be cancelled by adoptive father or mother and even by adoptive child in accordance with Section 15 of the Act, 1956. Learned Counsel further submits that on the basis of registered adoption deed, the Court was under obligation to presume the valid adoption u/s 16 of the Act, 1956. After valid adoption child cannot go back to his original family and will be natural son of the adoptive parents born from the date of adoption. Learned Counsel also submits that any cancellation deed of adoption is illegal and the appellant will inherit the property of his adoptive parents. His interest has already been created over the property of his adoptive parents on the date of his adoption and rights once vested cannot be divested. Sale or any transfer of property by deceased Bechni Bai is not legal and will not effect the interest of the present appellant.

On the other hand, learned Counsel for the respondent Nos. 1 to 8 supported the judgment and decree impugned and argued that adoption was not in accordance with law. Alleged adoption deed (Exh. D-3) is not original adoption deed for raising any valid presumption u/s 15 of the Act, 1956. Even such deed does not reflect the signature of the person who has given the child in adoption. Learned Counsel further argued that at the time of alleged adoption, the appellant was not below the age of 15 years as required under Clause (iv) of Section 10 of the Act, 1956. Learned Counsel also submits that after appreciating the material available on record, the Trial Court has arrived at a finding that alleged adoption deed was illegal and ineffective which has been confirmed by the judgment and decree impugned.

Learned Counsel placed reliance in the matter of Madhusudandas v. Narayanibai and Ors. 1983 JLJ 131 , in which the Apex Court has held that burden of proof of adoption is heavily on the person claiming benefit out of the adoption and such person requires to prove the necessary ceremonies for valid adoption. Learned Counsel also placed reliance in the matter of Bishan Maheshwari and Another Vs. Girish Chandra Verma, in which the High Court of Allahabad has held that adoption of the child above the age of 15 years is illegal. Learned Counsel also placed reliance in the matter of Smt. Shankuntala Vs. Smt. Kausalyabai Pande and another, , in which the High Court of Bombay has held that in the absence of adoption ceremony, adoption is not valid adoption. Learned Counsel also placed reliance in the matter of Mahalingam v. Kannayan and Anr. AIR 1990 Mad. 333, in which the High Court of Madras has held that exception relating to age of adoption is required to plead and prove. In the absence of pleading and proof, presumption of valid adoption would not be possible. Learned Counsel also placed reliance in the matter of Salekh Chand (Dead) by LRs v. Satya Gupta and Ors. (2008) 13 SCC 119, in which the Apex Court has held that the parties are required to prove existence of such custom and are required to prove that custom must derive its force from the fact that by long usage it has obtained the force of law.

It is not disputed that the present appellant has not filed any original document of adoption. Section 16 of the Act, 1956 for presumption of valid adoption. Exh. D-3 is certified copy of the alleged adoption deed does not reflect the sign of the person who has given the child in adoption or age of the child at the time of such adoption, but both the parties have pleaded and led their evidence in support of the legality of adoption. Allegation of the plaint reveals that Bechni Bai and her husband had adopted the appellant vide registered deed dated 17-12-63 and voluntarily executed adoption deed. But she has not admitted the factum of adoption in her evidence and has deposed that she did not know the fact that her husband has adopted the appellant or not. Kariya Ram (P.W. 2) has also not supported the factum of adoption, but appellant Vishambher (D.W. 1) himself has deposed in his evidence that when he was aged about 15 years he was adopted by Baldev. Even he performed his marriage and adoption deed was written. Certified copy (Exh. D-3) reveals that natural father of Vishambher was present at the time of adoption and he has given his son to Bechni Bai and her husband Baldev, but subsequently Exh. D-4 cancellation of adoption deed shows that the adoption deed executed vide 17-12-63 was cancelled on the ground that Vishambher has not complied with the terms of adoption and has not acted as natural son. Deceased Bechni Bai has specifically pleaded in Para 3 to Para 7 of the plaint that they have adopted Vishambher (present appellant) by registered deed of adoption, Vishambher has not complied with the condition of adoption and has not acted as natural son of Bechni Bai and her husband, therefore, deceased Bechni Bai has pleaded in Para 12 of the plaint and Para 12 of her evidence that subsequently she has cancelled the deed of adoption executed on 17-12-63 by cancellation deed of adoption dated 13-11-81, though Exh. D-3 copy of adoption deed does not contain signature of the natural father, does not satisfy the requirement of valid adoption in terms of Section 16 of the Act, 1956 for raising valid presumption, but deceased Bechni Bai has specifically pleaded the factum of valid adoption and such pleading has also been admitted by the appellant up to the extent of valid adoption, therefore, subsequently departure from pleading of original plaintiff is not permissible under the law unless same has been legally withdrawn by suitable amendment.

Both the Courts below have not considered the pleading of the plaintiff relating to the valid adoption and admission of the appellant in his written statement which was sufficient to establish and prove the fact of valid adoption.

Section 15 of the Act, 1956 deals subsequent cancellation of valid adoption. Section 15 of the Act, 1956 reads as under:

Valid adoption not to be cancelled. No adoption which has been validly made can be cancelled by the adoptive father or mother or another person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.

In the present case, it is not disputed that prior to execution of valid adoption, property in dispute were gifted by deceased Baldev to his wife deceased plaintiff Bechni Bai (Exh. D-l). Such gift deed has not been challenged by the present appellant after adoption or has not been declared any Competent Court as sham and bogus. As a result of such gift, plaintiff deceased Bechni Bai was absolute owner of the property in dispute. She has not transferred byway of sale or gift the property to the present appellant during her life time. After dismissal of the suit, sale deed dated 17-7-86 has been executed on behalf of Bechni Bai in favour of present respondent Nos. 1 to 8 and on the basis of such sale deed, present respondent Nos. 1 to 8 have been impleaded as legal representatives of deceased Bechni Bai during pendency of the first appeal before the First Appellate Court. Present respondent Nos. 1 to 8 have filed an application under Order 22 Rule 4 read with Sections 10 and 11 of the CPC and on the basis of such application, the Court has permitted the parties to implead as a legal representatives of deceased Bechni Bai. Present appellant has not filed any suit for declaration or cancellation of that sale deed. Even he has not filed any application for amendment on the basis of subsequent event.

It is clear from the pleading and documents of the parties that after date of such adoption, i.e., 17-12-63 deceased Baldev and deceased Bechni Bai have not acquired the disputed land. On the basis of gift deed (Exh. D-l), deceased Bechni Bai was absolute owner of the disputed property since 22-11-63 prior to the execution of adoption deed and adoption of the present appellant which was subsequently sold to present respondent Nos. 1 to 8. Admittedly, the present appellant became natural son of Bechni Bai since the date of adoption, i.e., 17-12-63 and legally he was born in the family of Bechni Bai on 17-12-63.

For the foregoing reasons, substantial question of law formulated for decision of this appeal is decided as positive. Even after decision on the substantial question of law formulated for decision of this appeal, it would be of no help to the appellant because land in dispute was self-acquired property of deceased Bechni Bai who had transferred the property to present respondent Nos. 1 to 8 and unless transfer is challenged or cancelled it will not effect the right of the respondents over the property.

As a result, finding relating to adoption of the Courts below is not sustainable. The appeal deserves to be allowed and it is hereby allowed. The finding of the Courts below relating to declaration of adoption deed as illegally and ineffective is hereby set aside.

Parties shall bear their costs.

Advocate fee as per schedule.

Decree be drawn up accordingly.