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2016 DIGILAW 3119 (ALL)

Ashok Kumar v. D. D. C.

2016-09-12

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Shashwat Kishore Chaturvedi and Sri Shreeprakash Singh, for the petitioners and Sri P.C. Pathak, for the contesting respondent, Ram Ratan. 2. These writ petitions have been filed against the orders of Settlement Officer Consolidation dated 19.03.2016 and Deputy Director of Consolidation dated 17.06.2016, passed in the proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. The dispute between the parties is in respect of the land of basic consolidation year khatas 221 and 224 of village Nota, tahsil Tahrauli, district Jhansi, which were recorded in the name of Bari Dullaiya widow of Panna Lal. In pursuance thereof, she was allotted chak 389 (which consisted two chaks). Bari Dullaiya died in 1983. Assistant Consolidation Officer, by order dated 26.08.1984, passed in Case No. 259 of 1984, under Section 12 of the Act, recorded the name of Smt. Ram Devi wife of Kaushal Kishore as her heir, being her daughter. Smt. Ram Devi obtained permission of Settlement Officer Consolidation on 29.12.1987 under Section 5(1)(c) of the Act and executed a sale deed dated 31.12.1987 of half of the area of new plot 1808 [old plots 1066 (area 1.18 acre), 1949/1 (area 2.00 acre) and 1960 (area 0.51 acre)] (which was her second chak) in favour of Ashok Kumar. Smt. Ram Devi again obtained permission of Settlement Officer Consolidation on 16.07.1988 under Section 5(1)(c) of the Act and executed another sale deed dated 18.07.1988 of remaining half area of plots 1066 (area 1.18 acre), 1949/1 (area 2.00 acre) and 1960 (area 0.51 acre) in favour of Ashok Kumar. Smt. Ram Devi executed a sale deed dated 07.10.1989 of new plot 1842 (area 3.01 acre) (old plots 1220 (area 0.03 acre), 1221 (area 2.02 acre), 1228 (area 0.30 acre), 1229 (area 0.64 acre) and 1232 (area 0.02 acre) (which was her first chak) in favour of Jagat Narayan. The names of Ashok Kumar and Jagat Narain were also mutated, over the land purchased by them. 4. Ram Ratan (minor through guardian), filed an appeal (registered as Appeal No. 175 of 1988) on 01.02.1988 against the order of Assistant consolidation Officer dated 26.08.1984, along with delay condonation application, claiming himself as adopted son and heir of Smt. Bari Dullaiya and Panna Lal. 4. Ram Ratan (minor through guardian), filed an appeal (registered as Appeal No. 175 of 1988) on 01.02.1988 against the order of Assistant consolidation Officer dated 26.08.1984, along with delay condonation application, claiming himself as adopted son and heir of Smt. Bari Dullaiya and Panna Lal. Assistant Settlement Officer Consolidation, by an ex-parte order dated 30.09.1988, condoned the delay, allowed the appeal, set aside order of Assistant Consolidation Officer dated 26.08.1984 and remanded the matter to Consolidation Officer for trial on merit. 5. After remand, the matter was contested by Ashok Kumar and Jagat Narain (transferees of Smt. Ram Devi). Apart from documentary evidence, Ram Ratan examined Makkhan Singh, Brij Kishor, Ram Ratan and Kaushal Kishor, as the witnesses. The petitioners, apart from their documentary evidence, examined Jagat Narain, Krishna Bihari, Dwarika Prasad and Ashok Kumar as the witnesses. Consolidation Officer, after hearing the parties, by order dated 08.02.2013, held that admittedly Smt. Ram Devi was only daughter of Smt. Bari Dullaiya, whose name was mutated on 26.08.1984, after death of Smt. Bari Dullaiya, Smt. Ram Devi executed sale deeds dated 31.12.1987, 18.07.1988 and 07.10.1989. In these sale deeds, Kaushal Kishor, her husband was witness. Had adoption on 05.08.1980 and adoption deed dated 06.08.1980 were in the knowledge of Smt. Ram Devi, then she would not got her name mutated after death of Smt. Bari Dullaiya, as Ram Ratan was her son. Under Section 9 of Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the Act of 1956) consent of natural mother of child is necessary for giving in adoption. Had Smt. Ram Devi given her consent for adoption, there would have no reason for her for not signing the adoption deed. No document has been filed to prove that Ram Ratan was ever recorded as an adopted son of Panna Lal or Smt. Bari Dullaiya. Valid adoption of Ram Ratan by Smt. Ram Dullaiya was not proved. Role of Kaushal Kishor, father of Ram Ratan was dubious, inasmuch as, he firstly tried to grab the property of Smt. Bari Dullaiya through his wife Smt. Ram Devi. After getting name of Smt. Ram Devi mutated, he sold entire land, in which he had signed the sale deeds as witness. Thereafter, he is trying to obtain these properties again by setting up his son as adopted by Smt. Bari Dullaiya. After getting name of Smt. Ram Devi mutated, he sold entire land, in which he had signed the sale deeds as witness. Thereafter, he is trying to obtain these properties again by setting up his son as adopted by Smt. Bari Dullaiya. Smt. Ram Devi was natural heir of Smt. Bari Dullaiya and her name was rightly mutated over the disputed land after death of Smt. Bari Dullaiya. Sale deeds executed by Smt. Ram Devi, in favour of the petitioners are valid. On these findings, he dismissed objection of Ram Ratan. 6. Ram Ratan filed an appeal (which was later on registered as Appeal No. 42 of 2015) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 19.03.2016 held that a perusal of adoption deed dated 06.08.1980 shows that adoption of Ram Ratan by Smt. Bari Dullaiya was taken place according to Hindu rites on 05.08.1980. At that time Ram Ratan was 3-4 years old. Wide publicity of adoption was also made in news papers on 09.08.1980. Adoption of Ram Ratan by Smt. Bari Dullaiya was proved from the statement of the witnesses Makkhan Singh, Kaushal Kishor and Brij Kishor. Smt. Ram Devi did not challenge the adoption of Ram Ratan till today. In appeal, Smt. Ram Devi filed an affidavit on 04.09.2013, admitting adoption of Ram Ratan with her consent. Adoption deed dated 06.08.2013 is a registered document, due execution of it was proved by Makkhan Singh, Pradhan. Witness Kunj Bihari, examined by the petitioner was aged about 8 years in 1980 as such his statement, in respect of adoption is not reliable. The order of Assistant Consolidation Officer dated 26.08.1984, mutating name of Smt. Ram Devi was set aside by Settlement Officer Consolidation on 30.09.1988, i.e. prior to execution of sale deed dated 07.10.1989. As Ram Ratan was an adopted son of Smt. Bari Dullaiya, he inherited her and Smt. Ram Devi was not her heir in preference to adopted son. On these findings, he allowed the appeal, set aside the order of Consolidation Officer dated 08.02.2013 and directed for recording the name of Ram Ratan as an heir of Smt. Bari Dullaiya. The petitioners filed their separate revisions (registered as Revision Nos. 101 and 115) against aforesaid order. Deputy Director of Consolidation consolidated and heard both the revisions together. On these findings, he allowed the appeal, set aside the order of Consolidation Officer dated 08.02.2013 and directed for recording the name of Ram Ratan as an heir of Smt. Bari Dullaiya. The petitioners filed their separate revisions (registered as Revision Nos. 101 and 115) against aforesaid order. Deputy Director of Consolidation consolidated and heard both the revisions together. He by order dated 17.06.2016, affirmed the findings of appellate court and dismissed the revisions. Hence these writ petitions have been filed. 7. The counsel for the petitioners submitted that Smt. Ram Devi was only daughter of Smt. Bari Dullaiya, whose name was mutated by order of Assistant Consolidation Officer dated 26.08.1984, after death of Smt. Bari Dullaiya. Smt. Ram Devi obtained prior permissions of Settlement Officer Consolidation on 29.12.1987 and 16.07.1988 and executed sale deeds dated 31.12.1987 and 18.07.1988 respectively. In the meantime, the village was notified under Section 52 of the Act. Thereafter, she executed another sale deed dated 07.10.1989. In these sale deeds, Kaushal Kishor, her husband was witness. Thus the father and mother of Ram Ratan both never set up adoption of Ram Ratan by Smt. Bari Dullaiya, before execution of sale deeds of entire holding. These facts clearly proved that at least, consent of Smt. Ram Devi was never obtained by Kaushal Kishor, for giving Ram Ratan in adoption to Smt. Bari Dullaiya, who was their only son at the time of adoption. Under Section 9 of Act of 1956, consent of natural mother of child is necessary for giving in adoption. Had Smt. Ram Devi given her consent for adoption, there would have no reason for her for not signing the adoption deed. Adoption deed was neither signed by Smt. Ram Devi nor Kaushal Kishor as the executors, as such presumption relating to adoption of Ram Ratan cannot be raised on its basis under Section 16 of the Act of 1956 and adoption deed is null and void. In the margin of adoption deed, Kaushal Kishor and Shankar Singh had signed as the witnesses, while before Sub-Registrar, Makkhan Singh and Nand Kishor had signed as the witnesses, which shows fabrication of adoption deed. In the margin of adoption deed, Kaushal Kishor and Shankar Singh had signed as the witnesses, while before Sub-Registrar, Makkhan Singh and Nand Kishor had signed as the witnesses, which shows fabrication of adoption deed. Had adoption on 05.08.1980 and adoption deed dated 06.08.1980 were in the knowledge of Smt. Ram Devi, then she would got the name of Ram Ratan mutated as Ram Ratan was her son and not her name mutated after death of Smt. Bari Dullaiya. No document has been filed to prove that Ram Ratan was ever denoted as an adopted son of Panna Lal or Smt. Bari Dullaiya, although Ram Ratan passed M.A. and LL.B. Real uncle of Ram Ratan has acted as his guardian, in these proceedings. Ceremonies of adoption according to Section 11(vi) of the Act of 1956 was not proved. Smt. Ram Devi could not marry Panna Lal who was her father as such Ram Ratan could not be adopted by Smt. Bari Dullaiya, according to Duttak Chandrika and Duttak Mimansa. Valid adoption of Ram Ratan by Smt. Bari Dullaiya was not proved. Role of Kaushal Kishor, father of Ram Ratan was dubious, in as much as, after getting the name of Smt. Ram Devi mutated, he sold entire land, in which he had signed the sale deeds as witness. Thereafter, he is trying to obtain these properties again by setting up his son as an adopted son of Smt. Bari Dullaiya. Smt. Ram Devi was natural heir of Smt. Bari Dullaiya and her name was rightly mutated over the disputed land after death of Smt. Bari Dullaiya. The sale deeds executed by Smt. Ram Devi, in favour of the petitioners are valid. Deputy Director of Consolidation has illegally dismissed the revisions, without adverting to various grounds raised by the petitioners or recording any finding on it. Consolidation Officer, after considering entire oral and documentary evidence on record, held that adoption was not proved. Finding of fact in this respect has been illegally set aside by appellate court. Impugned orders are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. First question arises as to whether adoption of Ram Ratan by Smt. Bari Dullaiya was proved? Relevant provisions of Act of 1956, are quoted below: "4. Impugned orders are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. First question arises as to whether adoption of Ram Ratan by Smt. Bari Dullaiya was proved? Relevant provisions of Act of 1956, are quoted below: "4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,-- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. 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. 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. 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 following conditions must be complied with-- (i) if any 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; (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 datta homam, shall not be essential to the validity of an adoption." 9. Section 4 of the Act of 1956 has an overriding effect on earlier text of Hindu law relating to adoption. Provisions of "Duttak Chandrika and Duttak Mimansa" have no application in present case as in this case, adoption was allegedly took place on 05.08.1980. Adoption in present case is not in contravention of any of the provisions of Section 6, 7, 8, 9, 10 and 11 of the Act of 1956. 10. Adoption is being challenged on three grounds namely (i) that consent of Smt. Ram Devi, natural mother of Ram Ratan was not taken at the time of giving Ram Ratan in adoption, (ii) Ram Ratan was only male issue of Smt. Ram Devi and Kaushal Kishor at the time of adoption and (iii) ceremonies of adoption was not proved. 10. Adoption is being challenged on three grounds namely (i) that consent of Smt. Ram Devi, natural mother of Ram Ratan was not taken at the time of giving Ram Ratan in adoption, (ii) Ram Ratan was only male issue of Smt. Ram Devi and Kaushal Kishor at the time of adoption and (iii) ceremonies of adoption was not proved. Section 10 of the Act of 1956 provides the eligibility of persons who may be adopted. There is no condition either under Section 10 or any other provision of the Act of 1956 that only son or daughter's son cannot be given in adoption. Under the old Hindu law, Supreme Court in Hem Singh v. Harnam Singh, : AIR 1954 SC 581 held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; therefore, the adoption of an only son, or a stranger in preference to a relation, if completed, is not invalid; that in cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding. This Court in Rajendra Kumar Vs. Lala Shree Chand Jain, 1989 (89) RD 636 held that if there was custom prevailing amongst the community and area, even daughter's son can be adopted. 11. Now it has to be examined as to whether consent of Smt. Ram Devi was taken at the time of adoption of Ram Ratan on 05.08.1980? Supreme Court in Ghisalal v. Dhapubai,: AIR 2011 SC 644 , held that the term "consent" used in the proviso to Section 7 and the Explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject-matter of challenge before the court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the court cannot presume the consent of wife simply because she was present at the time of adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. 12. In the present case, Makkhan has stated that on 05.08.1980, he went to village Nato. Ceremonies of adoption were performed in inner court yard of Smt. Bari Dullaiya in presence of 10-15-25 persons. Natural father and mother of Ram Ratan had given Ram Ratan in lap of Smt. Bari Dullaiya, who had taken him in her lap. Ceremonies of adoption of were performed. Brij Kishor, the other witness has also stated that ceremonies of adoption were performed in inner court yard of Smt. Bari Dullaiya on 05.08.1980. Kaushal Kishor and Smt. Ram Devi had given Ram Ratan in lap of Smt. Bari Dullaiya, voluntarily, who had taken him in her lap. Ceremonies of adoption of were performed by Sri Madhav Prasad Mishra. From aforesaid statements, it is proved that Smt. Ram Devi voluntarily participated in ceremonies of adoption performed on 05.08.1980, including giving and taking ceremonies of her minor son Ram Ratan. Consent of Smt. Ram Devi, for giving her minor son in adoption and ceremonies of adoption as required under Section 11(vi) of the Act of 1956 was proved. From aforesaid statements, it is proved that Smt. Ram Devi voluntarily participated in ceremonies of adoption performed on 05.08.1980, including giving and taking ceremonies of her minor son Ram Ratan. Consent of Smt. Ram Devi, for giving her minor son in adoption and ceremonies of adoption as required under Section 11(vi) of the Act of 1956 was proved. Supreme Court in Laxmibai v. Bhagwantbuva, : (2013) 4 SCC 97 , held that the natural parents of the adoptive child had agreed to give their child in adoption, and for the purpose of the same, the requisite ceremony for a valid adoption was conducted, wherein the natural parents, Vasant Bhagwant Pandav and Smt. Sushilabai Vasantrao Pandav, placed the adoptive child in the lap of the adoptive mother, in the presence of a large number of persons, including several relatives. Then adoption with consent of natural parents was proved. Madhusudan Das v. Narayanibai, : (1983) 1 SCC 35 , For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. In this case, actual giving of Ram Ratan by Kaushal Kishor and his wife Smt. Ram Devi in adoption was proved. It is not on unilateral act as such case law of Chirunjilal Shital Goenka Vs. Jagjit Singh 2001 (92) RD 116 (SC) relied upon by the counsel for the petitioners has not application in this case. 13. So far as adoption deed dated 06.08.1980 is concerned, it is a registered document as such it cannot be said that it was procured subsequently in back date. Due execution of adoption deed was proved by the witnesses Makkhan Singh and Brij Kishor. It has also come in evidence that adoption of published in news papers also on 09.08.1980. Due to not signing of this document by Smt. Ram Devi, this document can be useful for raising presumption of adoption according to Section 16 of the Act of 1956. For other purposes, it is a valid document and it cannot be ignored. Oral evidence relating to adoption is fully corroborated by adoption deed dated 06.08.1980. Due to not signing of this document by Smt. Ram Devi, this document can be useful for raising presumption of adoption according to Section 16 of the Act of 1956. For other purposes, it is a valid document and it cannot be ignored. Oral evidence relating to adoption is fully corroborated by adoption deed dated 06.08.1980. As in this case presumption of adoption on the basis of adoption deed dated 06.08.1980 was not raised but adoption is proved from oral evidence and corroborated by the adoption deed as such case law in Harihar Vs. Deputy Director of Consolidation and others, : 2015 (127) RD 144 relied upon by the counsel for the petitioners has no application in this case. In view of aforesaid discussions, the findings of respondents-1 and 2 that Ram Ratan was validly adopted by Smt. Bari Dullaiya do not suffer from any illegality. 14. Adoption of Ram Ratan being valid, he would be adopted son of Smt. Bari Dullaiya under Section 12of the Act of 1956. After death of Smt. Bari Dullaiya, Ram Ratan would be a preferential heir in preference of Smt. Ram Devi (a married daughter). Sale deeds executed by Smt. Ram Devi in favour of the petitioners would be void. Under Section 12 of the Act of 1956, relation of Ram Ratan from his father Kaushal Kishor and the mother Smt. Ram Devi had been severed from the date of adoption on 5.8.1986 as such the sale deeds cannot be said to be a sale deed of natural guardian within the meaning of Section8 of Hindu Minority and Guardianship Act, 1956. As such no right on its basis can accrue to the petitioners. 15. Sale deeds were executed on 31.12.1987, 18.07.1988 and 07.10.1989, while the appeals were also filed within limitation as such on the basis of possession also no right can be given to the petitioners. However, the petitioners would be entitled for refund of entire sale consideration from Smt. Ram Devi along with interest. For which they may take separate proceeding within six months from today. 16. In view of the aforesaid discussion, the writ petitions have no merit and are dismissed.