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2019 Supreme(All) 811
IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, J.
Subhir Kumar Das And Another - Appellant
Versus
Santosh Kukmar Tiwari - Respondent
Testamentary Cases No. 3 of 2017
Decided on : 04-07-2019
The main legal point established is the necessity to comply with the legal provisions for proving adoption, registration of documents, and establishing identity in testamentary cases.
Headnote:
Adoption - Testamentary Case - Hindu Adoptions and Maintenance Act, 1956, Section 16 - Registration Act, 1908, Section 17 - Indian Succession Act, 1945, Section 278 - Allahabad High Court Rules, Chapter XXX, Rule 10
Fact of the Case:
The petitioner filed a testamentary case seeking grant of letters of administration in respect of the estate of the deceased. The petitioner claimed to be the adopted son of the deceased and submitted an alleged adoption deed and will deed as evidence.
Finding of the Court:
The court found that the petitioner failed to establish the relationship with the deceased and prove his identity. The court also noted that the submitted documents, including the adoption deed and will deed, were not registered as required by law, and the contents of the supplementary affidavit did not inspire confidence.
Issues: The issues revolved around the petitioner's claim of being the adopted son, the validity of the submitted documents, and the failure to establish the relationship with the deceased and prove identity.
Ratio Decidendi: The court emphasized the legal provisions under the Hindu Adoptions and Maintenance Act, 1956, Section 16, the Registration Act, 1908, Section 17, the Indian Succession Act, 1945, Section 278, and the Allahabad High Court Rules, Chapter XXX, Rule 10, to highlight the requirements for proving adoption, registration of documents, and establishing identity in testamentary cases.
Final Decision: The court dismissed the testamentary case, citing the petitioner's failure to meet the legal requirements and lack of grounds to proceed with the case.
JUDGMENT :
Vivek Kumar Birla, J.
Supplementary affidavit filed today is taken on record.
2. Heard learned counsel for the petitioners.
3. Present testamentary case has been filed under Chapter XXX of the Rules of the Court seeking grant of letters of administration in respect of the estate of deceased late Deepak Kumar Das which he possessed at the time of his death.
4. On 23.1.2017, following order was passed:
"The applicant claims himself to be adopted son of late Ashok Kumar Das, in respect of whose estate, the instant petition has been filed praying for issuance of letter of administration.
Learned counsel for the applicant is granted time to bring on record the evidence on the basis of which the applicant claims that he is adopted son of late Ashok Kumar Das.
List on 13 February 2017."
5. On 1.11.2017, following order was passed:
"Learned counsel for the petitioner has been unable to establish from the record as to the relationship of the deceased with the petitioner.
List this petition in due course."
6. On perusal of record, it appears that Succession Suit No. 483 of 2012 was filed by the petitioners before the Additional Judge, Small Causes Court/Additional Civil Judge, Senior Division, Allahabad, which was dismissed on 22.8.2016 on the ground of jurisdiction.
7. Today, a supplementary affidavit dated 27.2.2017 has been filed. I have perused the supplementary affidavit. The supplementary affidavit has been filed annexing therewith photo copy of the alleged adoption deed dated 22.7.1996. No original document has been annexed with the supplementary affidavit. Even this alleged adoption deed, only photostat copy whereof has been filed, is also not a registered document as required under law. Only a photo copy of the alleged Will Deed dated 14.1.1998 has also been annexed with the supplementary affidavit. Thus, it is reflected from the record that the petitioner has failed to establish on record the relationship of the deceased with the petitioner. He has, thus, failed to establish from any piece of evidence that he is adopted son of late Deepak Kumar Das.?
8. This affidavit, though ready, was not filed on 1.11.2017 for reason best known when this Court has recorded a finding that the learned counsel for the petitioner has not been able to establish from the record as to the relationship of the deceased with the petitioner.
9. On perusal of Annexure-4 to the petition I find that the family register does not contain the name of any other family member or next of kin except the name of the petitioner herein, namely, Subhir Kumar Das. This document is a photostat copy of the alleged certified copy of the family register. Further, alongwith supplementary affidavit, as noticed above, only photostat copy of the alleged adoption deed dated 27.7.1996 has been annexed. Even this photostat copy contains the recital that at the time of adoption no deed was executed. The affidavit filed in support of the testamentary case does not contain the age of the petitioner. Similarly, the supplementary affidavit filed today also does not contain the age of the petitioner. A photostat copy of the voter identity card annexed with the affidavit contains only the year of birth as 1980. In the photostat copy of the alleged adoption deed annexed with the supplementary affidavit the date of adoption has also not been mentioned
10. It may also be noted that in paragraph 6 of the affidavit filed in testamentary case it has been stated that to the best of the knowledge the deceased late Deepak Kumar Das died intestate and no Will has been found inspite of due search, whereas in paragraph 3 of the supplementary affidavit it has been stated that late Deepak Kumar Das written a Will deed in favour of the petitioner on 14.1.1998 and a photostat copy of the same has been annexed. It is nowhere stated as to how and when this Will was found by the petitioner. Paragraph 6 of the affidavit and paragraph 3 of the supplementary affidavit are quoted as under:-
(paragraph 6 of the a
