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High Court Of Madhya Pradesh
K. K. Dube and H. G. Mishra, JJ.
NARESH
Versus
ICHRAJBAI
Decided On : Dec 16,1978
Section 8 lays down the qualifications that any Hindu female taking in adoption must possess, i.e. : –
(a) Is of sound mind,
(b) Is Dot a minor and
(c) Is not a married, or if married whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the word or bas ceased to be a Hindu or "has been declared by a Court of competent jurisdiction to be of unsound mind."
(Para 8)
In order to attract applicability, the presumption enacted by section 1 of the Act, fulfillment of all the following conditions is necessary:-
(i) The document produced before the Court must purport to record an adoption made;
(ii) It must be signed by the persons giving and taking the child in adoption; and
(iii) It must be registered under any law for the time being in force.
Proof of these conditions is basic requirement for bringing into play the presumption enacted by section 16 The amplitude of this presumption extends to the compliance with all the relevant provisions of the Act.
(Para 9)
When the presumption under section 16 comes into play, both the factum and validity of the adoption have to be presumed. As a sequel, thereof, it must also be presumed that the husband of the female executing the adoption deed had been declared by a competent Court to be of unsound mind within the contemplation of section 8 (c) of the Act, and as such Radhabai Was competent to take the plaintiff in adoption. Once the presumption enacted by section 16 of the Act became operative, it was not necessary for the plaintiff to have led any evidence about the factum of giving and taking and about the existence of conditions enacted by the Act about validity of the adoption. It was for the defendant respondent to have rebutted the presumption. It is true that burden of proof lay initially on the plaintiff to prove the execution of the registered deed of adoption (Ex. D/7), but on proof of its execution the onus of proof shifted by virtue of the provisions contained in section 16 of the Act to the defendant respondent, and it was for her to have rebutted the same.
(Para 10)
(2) Civil P.C., 1908 – O.6, R.4 – pleading of undue influence-should give full particulars.
A vague or general plea can never serve this purpose of the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair ad vantage obtained by the other.
(Para 12)
(3) Lunancy Act, 1912 – S. 67-order under-is not judgment in rem-but is binding on the parties.
(4) Evidence Act, 1872 – S. 41-judgment in rem-order under the Lunancy Act-is not-but is binding on the parties.
(Para 18)
(5) Hindu Law – Adoption-by a female-when is made for husband-Hindu Adoption and Maintenance Act, 1956 – Ss. 11, 12 & 14.
Concept of adoption to a woman alone is germane only in respect of unmarried Hindu woman. But when an adoption by Hindu wife (whose husband h living), it has to be regarded as adoption to both husband and wife. If the husband, on account of unsoundness of his mind is incapable of exercising his right to take son in adoption his wife may adopt a son. This is the position of law, which emerges from a combined reading of sections 11, 12 and 14 of the Act.
(Para 20)
(6) Contract Act, 1872 – S. 16 - plea of undue influence-burden of proof-three stages-Evidence Act, 1872 – S. 114.
(7) Evidence Act, 1872 – S. 114-plea of undue influence-burden of proof-three stages.
There are three stages for consideration of a case of undue influence.
In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached namely the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onous probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other:–
"Error is almost sure to arise in the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties, were they such as to put one in a position to dominate the will of the order ?"
(Para 14)
( 1. ) THIS is an appeal against judgment and decree dated 18-12-1977, passed by Second Additional Judge to the Court of District Judge, gwalior, in Civil suit No. 14-A of 1977.
( 2. ) FACTS essential for decision of this appeal are as under :
(i) The plaintiff-appellant filed the present suit for declaration of his status being adopted son of Balkisandas, a lunatic, on the allegations that: (a) Balkisandas, the lunatic and his wife Radhabai had no issue. Balkisandas was himself brought to his family by Ramratan. Ramratan had been taken in adoption by Madanlal. As Balkisandas was lunatic and was not competent to give his consent, Radhabai, his wife, adopted the plaintiff on 13-3-1971. A deed of adoption (Ex. P-7) was executed and registered on 15-3- 971 by Radhabai, adoptive mother, and Rambabu, natural father of the plaintiff. (b) As Balkisandas was lunatic, the Court of Additional District judge, Gwalior on an application registered as Miscellaneous Judicial case No. 12 of 1952, jointly made by Radhabai and Ichrajbai under sections 67 and 75 of the Indian Lunacy Act, 1912, had appointed (1) Bhajan-lal (brother of Radhabai) (2) Banshidhar (brother of Ichrajbai-respondent) and (3) Jagannath Prasad, as managers of his property. The managers were directed by the aforesaid order to make payment of maintenance allowance to Balkisandas Radhabai and Ichrajbai (defendant-respondent) out of the property of Balkisandas, the lunatic. The property of the lunatic was ordered to be put by the Court under management of the managers. Accordingly, maintenance used to be paid to Radhabai for herself, as well as lor Balkisandas, up to 15-5-1971, i. e. , till her death. Thereafter, the managers submitted an application to the Court for soliciting orders regarding the person to whom payment of maintenance for balkisandas should be made. Necessity for moving the application had arisen since the plaintiff claimed himself to be the adopted son of Balkisandas and Mst. Ichrajbai was denying the status so asserted by him. The Additional District Judge by order dated 15-5-1972, directed the parties to get the dispute decided by a regular suit. (d) Accordingly, the plaintiff-applicant originally instituted the suit on 22-1-1974, in the Court of IV Civil Judge Class II, Gwalior, for declaration of his status being an adopted son of Balkisandas. The number of that Civil Suit was C. S. No. 53-A of 1974. The defendant, inter alia, raised the objection about the jurisdiction of the Court on proper valuation of the suit. Ultimately, the plaint was ordered to be returned for presentation to Court competent to entertain the same. On return, the plaint was re-presented on 24-12-1976 to the Court of District Judge, Gwalior.
2. The defendant-respondent denied the claim of the plaintiff-appellant and inter alia took the following pleas:- (1) The factum as well as legality of adoption were denied. The deed of adoption is also legally invalid and insufficient to clothe the plaintiff with the status of an adopted son. (2) Mst. Radhabai had no right to take the appellant in adoption because her husband was not declared by any competent Court, to be a man of unsound mind. (3) Bhajanlal, brother of Mst. Radhabai, was one of the managers appointed by the Court of Additional District Judge to manage the estate of her husband Balkisandas. As such, his position was analogus to that of a trustee. He was acting with consent of other managers. It is likely to influence exercised by Bhajanlal. In the matter of adoption, Radhabai was not acting as a free agent. She had no independent advice. The principles underlying section 111 of the Indian Evidence Act, 1872 and section 16 of the Indian Contract Act, 1882 vitiate the adoption and the deed of adoption. (4) During minority of Balkisandas, managers were appointed for looking after the property under Kanoon Hiphajat Va Jaidad Raiyasat gwalior, Samvat 1970 by the District Judge, Gwalior. The order passed on 13-12-1952 in Misc
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