- (1.) TARUN Agarwala, J. Heard Sri V. C. Misra, the learned senior Counsel for the defendant-appellant. List of hearing cases has been revised, no one appears for the plaintiff-respondents.
(2.) IT transpires that the plaintiffs filed a suit for the cancellation of the adoption deed dated 13-10-1978 executed and registered in favour of the defendant. The plaintiff alleged that Ram Abhilash had executed a Will dated 24-12-1976 bequeathing the entire property in his favour. On the other hand, the defendant was claiming to be the adopted son on the basis of a registered adoption deed. The plaintiffs contended that the adoption deed was obtained by fraud, inasmuch as, the adoption deed was executed on 13-10-1978 and that Ram Abhilash died, soon thereafter, on 11-11-1978 and consequently suspicious circumstances surrounded the execution of the adoption deed. The plaintiffs alleged that Ram Abhilash was blind since birth and that he was seriously ill for about 5 to 6 months prior to his death. The defendants' father had taken Ram Abhilash to his residence and it was alleged that the adoption deed was executed without there being an actual giving and taking ceremony. The defendant resisted the suit and contended that no will was ever executed in favour of the plaintiffs and that a registered adoption deed was executed in accordance with the provisions of Hindu Adoption and Maintenance Act, 1956. The defendant contended that there was no suspicious circumstances surrounding the execution of the adoption deed. On the basis of the pleadings, the trial Court framed various issues and concluded that a Will was duly executed by the testator Ram Abhilash in favour of the plaintiffs and that the adoption deed was executed without there being a giving and taking ceremony. The trial Court decreed the suit holding that the property of the testator was bequeathed in favour of the plaintiffs. Aggrieved, the defendant filed an appeal which was also dismissed and the findings of the trial Court was affirmed. The defendant consequently, filed the present Second Appeal which was admitted on the following substantial questions of law, namely : "whether the decision arrived at by the lower appellate Court is vitiated on account of burden to prove that the ceremony of giving and taking of adoption had taken place, being laid upon the defendant- appellant, contrary to the provisions contained in Section 16 of the Hindu Adoption and Maintenance Act, 1956?" The learned Counsel for the appellant submitted that in view of Section 16 of the Hindu Adoption and Maintenance Act, the registration of the adoption deed was executed in accordance with law and that there was a valid ceremony of giving and taking. Consequently, the burden to disapprove the adoption deed fell squarely on the plaintiffs whereas, the Court below, had unnecessarily placed the burden, upon the defendant, which was totally against the provisions of Section 16 of the Act.
(3.) IN order to appreciate the submission of the learned Counsel for the appellant, it would be appropriate to consider the provisions of Section 16 of the Hindu Adoption and Maintenance Act, 1956 which is quoted hereunder : "16. Presumption as to registered documents relating to adoptions.- Where 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. " From the aforesaid, it is clear that a document, duly registered under any law for the time being in force is, produced before the Court purporting to record an adoption made and signed by the person giving and taking the child in adoption, the Court shall presume that the adoption had been made in compliance with the provisions of the Act. The presumption, that the document was executed in accordance with the provisions of law would operate so long as there is no rebuttal. The learned Counsel placed reliance upon a decision in Sushil Chandra v. Smt. Bhoop Kunwar & Ors. , AIR 1977 All 441, wherein it had been held that if the adoption deed is challenged on the ground of fraud or undue influence, the burden of proof would lie upon the party alleging fraud and undue influence. In Karam Chand & Anr. v. Baljit & Ors. , AIR 1990 P&h 220, it was held that a registered adoption deed raised a presumption of a valid adoption, though the presumption of a valid adoption could be rebutted by evidence but could not be discharged by mere conjectures and discrepancies in the evidence and that the totality of the circumstances of the evidence brought on record was required to be taken into account and weighed in deciding whether such presumption stood rebutted or not. In Pathivada Ramaswami & Anr. v. Korada Surya Prakasa Rao & Anr. , AIR 1993 AP 336, it was held that whenever a registered document of adoption was produced, the Court would presume that the adoption had been made in compliance with the provisions of the Act. In Ramji v. Deputy Director of Consolidation, Allahabad & Ors. , 1981 AWC 2004, it was held that the presumption of a valid adoption according to Section 16 of the Adoption Act is raised where document had been signed by the person giving and the person taking the child in adoption and only in such cases that the Court would presume that the adoption had been made in compliance with the provisions of Adoption Act. Where the document had not been signed by the person, the presumption under Section 16 of the Act would not attracted.;