2021 Supreme(All) 251

IN THE HIGH COURT OF ALLAHABAD
Rajnish Kumar, J.
Shiv Darshan Yadav - Appellant
Vs.
Executive Engineer Electricity Distribution Div.-I Faizabad - Respondent
SECOND APPEAL No. - 13 of 2014
Decided On : 25-02-2021

Point of law: Capacity of a male Hindu to take in adoption-Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation-If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

Headnote:

Civil Procedure Code, 1908 – Order 41 Rule 31, Section 99, 100 – Registration Act – Section 47 – Dying in harness – Adoption deed – Whether the suit filed by the respondent was not barred by limitation as in view of the specific admission of PW-1 that on the basis of the registered deed of adoption, the appellant was appointed on compassionate ground under Dying in Harness Rules after the death of Kanhaiya Lal Yadav and the learned courts below were justified in law in holding that the suit was within limitation, while decreeing the suit – Whether the presumption available to a registered deed of adoption under Section-16 of the Hindu Adoption & Maintenance Act, 1956 coupled with the provisions of section 47 of the registration Act could be discarded merely on surmises and conjectures, ignoring the admissions made by PW-1 – Whether the appellant, who after execution of the registered deed of adoption had completely severed relations with his natural father and mother and on the death of adoptive father, Kanhaiya Lal Yadav, his name was recorded in revenue records being an adopted son. – Courts below were justified in law in cancelling the registered deed of adoption merely on technicalities, ignoring the law propounded by the apex to the effect that there is a presumption about the registered deed of adoption, unless proved otherwise by leading cogent evidence on record – Whether in view of the well settled proposition of law that the plaintiff has to prove his case by leading positive evidence on record and could not derive any benefit from the weakness of defence and the learned courts below were justified in law while decreeing the suit.

Finding of the court: Court is of the considered opinion that there is no illegality or error in the judgment and order passed by the appellate court by which the judgment of trial court has been confirmed and it does not vitiate merely because the points of determination have not been stated though it has disclosed the issues considered by it as discussed above. – The findings recorded by the courts below and the conclusion that the alleged adoption deed is not valid and the respondent is able to get it cancelled, does not suffer from any illegality or error. – Counsel for the appellant has also failed to demonstrate in any manner that the judgment and decree passed by the appellate court is not sustainable on merit therefore merely on technical grounds, although that also does not subsist as discussed above, it can not be reversed or remanded in view of Section 99 of C.P.C., – Court is of the considered opinion that all the issues raised by the appellant have failed and there is no illegality or error in the judgment and decree passed by the courts below. – Substantial questions of law framed by this Court are decided, accordingly, against the appellant. – The appeal is misconceived and devoid of merit. – Judgment of the first appellate court should be in conformity with the Order-41 Rule-31 of C.P.C. and reflect the conscious application of mind on the issues involved in the case but the same can not be vitiated merely because the point of determinations have not been specifically stated. – Therefore the judgment of this Court in the case of Kuldeep Saxena Vs. Smt. Archana Saxena and 6 Others; Second Appeal No.309 of 2016, Ram Narain Vs. Raj Narain; 2017 (35) LCD 2771 and Ayodhya Prasad Vs. Durga Prasad and Others; (2017) 35 LCD 3236 passed by a coordinate bench of this Court, relied by learned counsel for the appellant are not of any assistance to the case of the appellant.

Result: Appeal Dismissed