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CASE NO.:

Appeal (civil) 9469 of 1996

PETITIONER:

JAI SINGH

Vs.

RESPONDENT:

SHAKUNTALA

DATE OF JUDGMENT: 14/03/2002

BENCH:

Umesh C. Banerjee & Brijesh Kumar

JUDGMENT:

BANERJEE,J.

The matter under consideration pertains to the effect of

statutory presumption as envisaged under Section 16 of the Hindu

Adoption and Maintenance Act, 1956. For convenience sake it

would be worthwhile to note the provision for its true purport.

Section 16 reads as below:

"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."

The Section thus envisages a statutory presumption that in

the event of there being a registered document pertaining to

adoption there would be a presumption that adoption has been

made in accordance with law. Mandate of the Statute is rather

definite since the Legislature has used "shall" in stead of any other

word of lesser significance. Incidentally, however the inclusion of

the words "unless and until it is disproved" appearing at the end of

the statutory provision has made the situation not that rigid but

flexible enough to depend upon the evidence available on record in

support of adoption. It is a matter of grave significance by reason

of the factum of adoption and displacement of the person adopted

from the natural succession - thus onus of proof is rather heavy.

Statute has allowed some amount of flexibility, lest it turns out to

be solely dependent on a registered adoption deed. The reason for

inclusion of the words "unless and until it is disproved" shall have

to be ascertained in its proper perspective and as such the

presumption cannot but be said to be a rebuttable presumption.

Statutory intent thus stands out to be rather expressive depicting

therein that the presumption cannot be an irrebuttable presumption

by reason of the inclusion of the words just noticed above. On the

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wake of the aforesaid the observations of the learned single Judge

in Modan Singh vs. Mst.Sham Kaur & Ors. (AIR 1973 P&H 122)

stands confirmed and we record our concurrence therewith.

In the contextual facts a Deed of Adoption dated 1.6.1973

came into existence and stands registered in the Sub Registrar’s

office at Charkhi, Dadri in the State of Punjab.

Adverting to the factual backdrop briefly at this juncture it is

to be noted that the dispute relates to the estate of one Sunda Ram

and the contest stands out to be between one Shakuntala being the

daughter of Sunda Ram and Jai Singh, who claims to be the

adopted son.

Record depicts that the plaintiff (respondent herein) filed a

suit for declaration that she was the owner in possession of the suit

land and that the decree dated August 1, 1986 passed in Civil Suit

instituted on July 23, 1986 and registered will dated February 14,

1974 alleged to have been executed by her father together with the

Adoption Deed dated June 1, 1973 recording that Jai Singh had

been adopted by Sunda Ram were illegal and result of

misrepresentation of facts and thus not binding on her. The trial

Court decreed the suit. Appeal therefrom filed by the

defendant/appellant was dismissed and even the second appeal also

stands dismissed.

Mr.Jain, the learned senior Advocate appearing in support of

the appeal contended that in the event of due compliance with the

four requirements as envisaged under Section 16 of the Act of

1956 question of there being any further requirement depicting

acceptance thereof does not and cannot arise. The submissions

undoubtedly at the first blush seem to be rather attractive and it is

on th