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High Court Of Allahabad
S.P. Srivastava, J.
Raj Bahadur Singh - Appellants
Versus
Ram Singh - Respondents
Second Appeal No. 577 of 1979
Decided on : Dec 20, 1996
ADOPTION - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 11(VI) - VALIDITY OF ADOPTION - ESSENTIAL REQUIREMENTS - GIVING AND TAKING OF CHILD - PROOF - PRESUMPTION UNDER SECTION 16 - NON-PRODUCTION OF ORIGINAL DEED OF ADOPTION - EFFECT - ADOPTION BY HINDU MALE - PROHIBITION AGAINST ADOPTION OF SON WHOSE MOTHER COULD NOT BE MARRIED BY ADOPTIVE FATHER - PRINCIPLE OF HINDU LAW - WHETHER ABROGATED BY THE ACT - INTERPRETATION OF SECTIONS 4, 6, 7 AND 11 OF THE ACT.
Fact of the Case:
Plaintiff filed a suit for a declaration that the deed of adoption dated 21.1.76 in favor of the defendant No. 2 was invalid. The plaintiff alleged that he had no male issue and his two daughters were already married and resided in the house of their father-in-law. He was not keeping good health and In December, 1974 during his illness he had called his son-in-law Ram Singh, the defendant No. 1 to accompany him to Rai Bareli for his treatment. Ram Singh accompanied the plaintiff and visited Rai Bareli where the plaintiff was got medically examined in the Sadar Hospital there. His treatment continued for some time and the expenses in that regard were paid by the plaintiff. It was further asserted that the his son-in-law the defendant No. 1 who is the father of the minor defendant No. 2 had planned to take advantage of the advanced age of the plaintiff and his Illness and at a time when the plaintiff was quite 111 and was not able to understand the correct nature of things in view of his Unbalanced mental State, the defendant No. 1 instead of taking the plaintiff to the Sadar Hospital took him to the civil courts where while he was unconscious and could not understand anything, got his thumb-impressions on an adoption deed without explaining the contents of the same to him and got it registered. The plaintiff claimed that he never adopted the defendant No. 2 as a son nor any ceremony in that regard was performed, it was clearly Indicated that there was no giving and taking of the defendant No. 2 and the alleged transaction was fictitious. The plaintiff further claimed that it was only in order to usurp the property of the plaintiff that the defendant No. 1 had got the adoption deed prepared.
Finding of the Court:
The court found that the adoption in question was invalid as the defendant was the son of the daughter of the plaintiff whom he could not have married had she been maiden. The court held that the principle of Hindu Law in regard to the invalidity of adoption which has been noticed in the decision of this Court in the case of Lola Babu Ram v. Smt. Kishan Del (supra) must be deemed to have ceased to have any effect with the enforcement of the Hindu Adoptions and Maintenance Act in view of the overriding effect of the Act as envisaged under Section 4 thereof. The court further held that the provisions contained in Sections 6, 7 and 11 of the Act are regulatory in nature and prescribe various conditions regulating the procedure relating to an adoption laying down certain conditions regarding the eligibility and capacity but are totally silent in regard to the main object of the adoption of a son by a Hindu which field continues to be covered by the principles of Hindu Law as in force prior to the enforcement of the Act.
Issues: 1. Whether the adoption in question was valid in law? 2. Whether the principle of Hindu Law in regard to the invalidity of adoption which has been noticed in the decision of this Court in the case of Lola Babu Ram v. Smt. Kishan Del (supra) must be deemed to have ceased to have any effect with the enforcement of the Hindu Adoptions and Maintenance Act in view of the overriding effect of the Act as envisaged under Section 4 thereof?
Ratio Decidendi: 1. The court held that the adoption in question was invalid as the defendant was the son of the daughter of the plaintiff whom he could not have married had she been maiden. 2. The court held that the principle of Hindu Law in regard to the invalidity of adoption which has been noticed in the decision of this Court in the case of Lola Babu Ram v. Smt. Kishan Del (supra) must be deemed to have ceased to have any effect with the enforcement of the Hindu Adoptions and Maintenance Act in view of the overriding effect of the Act as envisaged under Section 4 thereof.
Final Decision: The court allowed the appeal, set aside the judgment and decree passed by the first appellate court, and restored the decree of the trial court.
S. P. Srivastava, J.
1. THIS Is the plaintiffs second appeal directed against the judgment and decree passed by the first appellate court where under allowing the appeal and setting aside the decree passed by the trial court, the suit filed by the appellant had been dismissed.
2. I have heard the learned counsel for the plaintiff-appellant as well as the learned counsel representing the contesting respondent and have carefully perused the record.
The facts, shorn of details and necessary for the disposal of this case lie in a narrow compass. The plaintiff had filed a suit claiming a decree for declaration to the effect that the deed of adoption dated 21.1.76 in favour of the defendant No. 2 was invalid. The plaintiff had alleged, inter alia, that he had no male issue and his two daughters were already married and resided in the house of their father-in-law. He was not keeping good health and In December, 1974 during his illness he had called his son-in-law Ram Singh, the defendant No. 1 to accompany him to Rai Bareli for his treatment. Ram Singh accompanied the plaintiff and visited Rai Bareli where the plaintiff was got medically examined in the Sadar Hospital there. His treatment continued for some time and the expenses in that regard were paid by the plaintiff. It was further asserted that the his son-in-law the defendant No. 1 who is the father of the minor defendant No. 2 had planned to take advantage of the advanced age of the plaintiff and his Illness and at a time when the plaintiff was quite 111 and was not able to understand the correct nature of things in view of his Unbalanced mental State, the defendant No. 1 instead of taking the plaintiff to the Sadar Hospital took him to the civil courts where while he was unconscious and could not understand anything, got his thumb-impressions on an adoption deed without explaining the contents of the same to him and got it registered. The plaintiff claimed that he never adopted the defendant No. 2 as a son nor any ceremony in that regard was performed, it was clearly Indicated that there was no giving and taking of the defendant No. 2 and the alleged transaction was fictitious. The plaintiff further claimed that it was only in order to usurp the property of the plaintiff that the defendant No. 1 had got the adoption deed prepared.
3. THE aforesaid suit was contested by the defendants denying the plaint allegations. It was asserted that the eldest daughter of the plaintiff was married with defendant No. 1 and he had three sons. THE defendant No. 1 claimed that the plaintiff had been persuading the answering defendant to give one of his sons In adoption to him and the defendant No. 2 was taken in an adoption by the plaintiff after performing all the requisite ceremonies. THE adoption deed was claimed to be genuine and duly executed by the plaintiff when he was in his full senses.
4. THE plaintiff had examined himself as PW-1 disclosing his age to be 60-70 years and Chandrabhan Singh as PW-2. Defendant No. 1 had examined himself as DW-1 and Dr. S. K. Mallik as DW-2 as well as Sri Parmanand as DW-3, and Tej Narain as DW-4. A certified copy of the adoption deed executed and registered on 21.1.75 Is also on the record which contained a recital showing that the alleged adoption had taken place on 20.1.75.
The trial court noticed that the defendant had not produced the original adoption deed, and the presumption available under Section 16 of the Hindu Adoptions and Maintenance Act which was only rebuttable one could not be raised. After careful consideration of the evidence and the materials on the record, the trial court came to the conclusion that no actual adoption had taken place as claimed by the defendant. The trial court noticed that in the written statement, the defendant No. 1 had asserted that the actual adoption had taken place in the month of January but in his deposition, he had stated that it was after a month of actual adoption that the adoption deed had been
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