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2020 DIGILAW 716 (JHR)

Bhim Singh v. Sunita Devi

2020-07-06

ANIL KUMAR CHOUDHARY

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JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties through video conferencing. 2. This appeal has been preferred by the appellant against the Judgment dated 29.11.2014 passed by learned Principal District Judge, Deoghar in Guardianship case no. 1 of 2014 whereby and where under the learned Court below has dismissed the Guardianship case. 3. The brief facts of the case is that the appellant-petitioner is the natural father of a minor male namely Gagan Singh, who was born on 08.11.2004. It is the case of the appellant-petitioner that the said Gagan Singh is the owner of certain property valued Rs. 50,000/-. It is also the case of the appellant-petitioner that Gagan Singh was adopted by Laxman Singh from the appellant-petitioner and his wife, Sunita Devi, who is the opposite party of the guardianship case. The adoption was performed at Baba Bidyanath Temple, Deoghar on 04.12.2005 as per the Hindu Rites and Customs. A deed of adoption was also executed and registered in the office of Sub-registrar, Deoghar on 08.12.2005. It is claimed that Gagan Singh is the only heir and successor of the said Laxman Singh who died on 02.10.2013. It is also the case of the appellant-petitioner that the adoptive father of the said Gagan Singh who was an old person, was getting his property managed by the appellant-petitioner. 4. In support of his case, the applicant has altogether examined three witnesses, who have supported the case of the petitioner in their examination-in-chief, filed in shape of affidavits. 5. The opposite party of the case, who is the wife of the appellant-petitioner, supported the averments made by the appellant-petitioner. One witness was also examined from the side of the opposite party and he also supported the averments made in the petition. 6. It is pertinent to mention here that the alleged registered adoption deed was not produced before the trial Court nor the same was proved. 7. Learned trial Court considered that except the natural father and the natural mother of the minor son-Gagan Singh, no one else is party to the case. 6. It is pertinent to mention here that the alleged registered adoption deed was not produced before the trial Court nor the same was proved. 7. Learned trial Court considered that except the natural father and the natural mother of the minor son-Gagan Singh, no one else is party to the case. Without any plausible reason, the alleged deed of adoption was not produced before the trial Court and the trial Court also considered that no document has been put on behalf of the appellant-petitioner, nor any material could be produced to show that the adoption was actually acted upon except the stereotyped affidavits filed in shape of affidavit that Laxman Singh was the adopted father of Gagan Singh and Laxman Singh had no brother, sister or any other relative in his family. 8. Considering the aforesaid facts, learned Court below observed that the appellant-petitioner continued to be the natural father of Gagan Singh as such, no guardianship can be made and dismissed the petition. 9. It is submitted by Mr. J.P. Pandey the learned counsel for the appellant-petitioner that learned Court below has mechanically passed the impugned judgment and failed to appreciate that Gagan Singh is adopted son of Laxman Singh. It is further submitted by learned counsel for the appellant that learned Court below failed to draw the presumption under section 16 of Hindu Adoption and Maintenance Act, 1956, in respect of the registered document relating to adoption, hence, it is submitted that the impugned judgment be set aside and the appellant-petitioner be appointed as the guardian of the property of Gagan Singh. 10. Mr. Arvind Kumar Choudhary, learned counsel for the respondent supported the submissions made by the appellant. 11. Having heard the submissions made at the Bar and after going through the records, the following points for determination crop up in this appeal for consideration: (i) Whether the trial court failed to draw the presumption under section 16 of Hindu Adoption and Maintenance Act, 1956, in respect of the registered document relating to adoption? (ii) Whether the learned trial court has rightly appreciated the evidence in the record? 12. (ii) Whether the learned trial court has rightly appreciated the evidence in the record? 12. So far as the first point for determination in respect of the contention of the learned counsel for the appellant regarding the presumption under section 16 of Hindu Adoption and Maintenance Act, 1956, in respect of the registered document relating to adoption is concerned, it will be pertinent to refer to Section 16 of Hindu Adoption and Maintenance Act, 1956, which reads as under: 16 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. (Emphasis Supplied) The plain reading of section 16 of Hindu Adoption and Maintenance Act, 1956 shows that the condition precedent for drawing the presumption under section 16 of Hindu Adoption and Maintenance Act, 1956, is that the registered document of adoption must be produced before the court. As already indicated above, the appellant-petitioner, without any rhyme or reason, has not produced the registered document of adoption in the trial court. Thus the learned trial court has rightly not drawn the presumption under section 16 of Hindu Adoption and Maintenance Act, 1956. The first point for determination is answered accordingly in the negative against the appellant-petitioner. 13. So far as the second point for determination as to whether the learned trial court has rightly appreciated the evidence in the record is concerned, it is crystal clear that there is no plausible reason as to why the registered deed of adoption was not produced before the trial Court nor the same was proved in accordance with law. Learned counsel for the appellant also failed to furnish any reason as to why same was not produced before the trial court. It also remains unanswered as to why none of the parties, who are claiming to disturb the possession over the property in respect of which, guardianship of the minor is sought in this case, has been impleaded as party. As rightly pointed out by the trial court that the affidavit filed in shape of depositions of the witnesses are stereotyped. 14. As rightly pointed out by the trial court that the affidavit filed in shape of depositions of the witnesses are stereotyped. 14. Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property asserting an adoption must prove the factum of adoption and its validity by placing sufficient materials on record. The Hon'ble Court in the case of Rahasa Pandiani (dead) represented by LRs and others v. Gokulananda Panda and others, (1987) AIR SC 962 observed at paragraph 4 as under- "4. Before we advert to the relevant circumstances we consider it appropriate to advert to note of caution sounded by this Court as early as in 1958 in Kishori Lal v. Mst. Chaltibai, (1959) Supp1 SCR 698: ( AIR 1959 SC 504 ). We can do no better than to quote the relevant passage from the judgment of Kapur, J. (at p. 508 of AIR) :- "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra., (1834) 2 Knapp 287); in Diwakar Rao v. Chandanlal Rao, (1916) AIR PC 81; in Kishorilal v. Chunilal, (1908) 36 IndApp 9): in Musammat Lal Kunwar v. Chiranji Lal, (1909) 37 IndApp 1 and in Padmalal v. Fakira Debya, (1931) AIR PC 84."(Emphasis Supplied) 15. The appellant-petitioner in this case relies on only oral evidence in support of the claim that his own natural son was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, though it is the case of the appellant-petitioner that a registered document in this respect was executed. Under such circumstances the Court has to act with a great deal of caution and circumspection. Under such circumstances the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. Thus the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims that an adoption has taken place to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature and if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. 16. After carefully going through the evidence in the record, this court is of considered view that the evidence put forth by the appellant-petitioner is shrouded with suspicion as no reasonable person will withhold a registered adoption deed from the court without any plausible explanation. Thus no fault can be found with the trial court which had the opportunity of seeing the demeanor of the witnesses in appreciation of the evidence in the record. Accordingly the second point for determination is also answered in the negative against the appellant-petitioner. 17. There being no illegality in the impugned judgment, this appeal being without any merit is dismissed but in the circumstances, without costs. 18. Let the lower Court records be sent back to the Court below along with a copy of the judgment forthwith.