Supreme Court: Under which circumstances, adoption of child is not proved even though it was through registered adoption deed?

  Adoption Deed was registered, the presumption under Section 16 of the Act of 1956 attached to it and it was for Defendant No.1 to rebut that presumption. We find that he did so more than sufficiently. Mere registration of Adoption Deed did not absolve the person asserting such adoption from proving that fact by cogent evidence and the person contesting it from adducing evidence to the contrary. It is in this respect that various suspicious circumstances attached to the adoption ceremony assume significance. While so, Plaintiff witness, himself, stated that she did not invite any of her relations to attend the adoption ceremony. Normally, such occasions would not be kept secret or confidential as an adoption would usually be made with much pomp and celebration. The clandestine manner in which the alleged adoption is stated to have taken place raises a doubt but the same has not been adequately explained. Further, no evidence was adduced to prove that relations between owner and defendant no.1, her grandson, had fallen out. The document also did not record any reasons as to why owner was not happy with Defendant No.1, whose marriage she had performed a few months earlier.[Para 46]

50. The actual giving and taking of the child in adoption, being an essential requisite under Section 11(vi) of the Act of 1956, there was no convincing evidence of that act also in the case on hand. Interestingly, there were no pictures of the actual giving and taking of the child in adoption. The purohit was seen standing or sitting behind the others and the same could not be taken to be during the ceremony of giving and taking, as he would have stood/sat in front of them, chanting mantras and incantations as per shastras. Further, there were no photographs of the datta homam, though purohit claimed that he had performed the same. Even though it was no longer considered an essential ceremony, it was of significance when performed, and would have been captured for posterity by taking pictures. Strangely, though a professional photographer was stated to have been engaged for the purpose of taking pictures at the adoption ceremony, he took only three photographs and no more. This parsimony was not explained. Further, Plaintiff witness producing and marking receipt, supposedly issued by photographer to the temple, with no explanation as to how it came into her possession, also did not inspire confidence.

55. The adoption of Appellant-Plaintiff by deceased-owner was not proved in accordance with law despite the registration of Adoption Deed. The very adoption, itself, was not believable, given the multitude of suspicious circumstances surrounding it. The Appellant could not, therefore, be treated as her heir by adoption. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/1240/2023.

Read full Judgment here: Click here.

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Supreme Court: How to prove execution of will as per Section 69 of the Indian Evidence Act, 1872?

 For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will. The evidence of the scribe of the disputed Will (PW 6) also casts a doubt on the identity of the executant as he specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and he could not also tell whether Venkubayamma had signed the document. In effect, Ex. A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth's claim of absolute right and title over Venkubayamma's properties on the strength thereof has, therefore, no legs to stand upon and is liable to be rejected.

{Para 32}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/1240/2023.

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Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

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Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

Read full Judgment here: Click here

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Whether the court has jurisdiction to question registered adoption deed in collateral proceeding?

 Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:

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. {Para 10}

11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:

In view of Section 16 aforesaid 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 persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.

12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007

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Whether the contents of the adoption deed can rebut the presumption of the registered adoption deed?

  Now, we shall examine the nature of presumption

that arises under section 16 of the 1956 Act. In Jai Singh v.

Shakuntala, (2002) 3 SCC 634, the Apex Court had held that

the presumption that arises out of section 16 of the 1956 Act is

rebuttable and 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 on record in support of adoption. The

relevant portion of that judgment, as found in paragraph No.2

thereof, is extracted below:

“2. 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” instead 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.”

{Para 13}

14. Even in the decision in Laxmibai’s case (supra),

relied by the learned counsel for the appellant, the Apex Court

held that a very heavy burden is placed upon the propounder to

prove adoption but once a registered document recording the

adoption is brought before the court the onus shifts. The court

however clarified that this aspect must be considered taking

note of various attending circumstances. The relevant portion of

that judgment i.e.paragraph 33, is extracted below:

“33. The appellate court could therefore, not have drawn

any adverse inference against the appellant-plaintiffs on

the basis of a mere technicality, to the effect that the

natural parents of the adoptive child had acted as

witnesses, and not as executors of the document.

Undoubtedly, adoption disturbs the natural line of

succession, owing to which, a very heavy burden is placed

upon the propounder to prove the adoption. However, this

onus shifts to the person who challenges the adoption,

once a registered document recording the adoption is

brought before the court. This aspect must be considered

taking note of various other attending circumstances i.e.

evidence regarding the religious ceremony (giving and

taking of the child), as the same is a sine qua non for valid

adoption.”

(Emphasis supplied)

15. The legal principle deducible from the decisions

noticed above is that once a registered deed of adoption is

produced though there arises a presumption that the adoption

has been made in compliance with the provisions of the 1956

Act but that presumption is rebuttable. Whether that

presumption has been rebutted depends on the facts of each

case borne out from the evidence on record.

16. In the instant case, the adoption deed on which

reliance has been placed by the appellant declares Rajendra

Singh as unmarried whereas, it is established on the record, he

was married and had a wife living on the date of adoption.

Therefore once it was proved that Rajendra Singh had a living

wife, the presumption, if any, arising from that deed with regard

to the adoption being in accordance with the provisions of the

1956 Act stood demolished because how could it be presumed

that the wife had given her consent for her husband to take a

son in adoption when even the existence of that wife is not

acknowledged. In fact in the adoption deed Rajendra Singh has

been described as unmarried. Thus, when clinching evidence

had come on board that the person who allegedly took the

appellant in adoption had a living wife, whose existence was

denied in the deed, the presumption, whatever available, stood

rebutted.

ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 22 of 2021

Appellant :- Bhanu Pratap Singh

Respondent :- State Of U.P. And 3 Others

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Whether mother can be granted permission to give child in adoption if father has renounced the child?

 In the present case, there cannot be any denial of the fact that the petitioner i.e. the mother of Master Lakshya is his guardian. It can also not be denied that the respondent no. 3-Gaurav Gupta, the biological father of Master Lakshya has completely forsaken him and has given up all his rights including the right of visitation and has also categorically given the responsibility of bringing up the minor to the petitioner. In the proceedings before the Principal Judge, Family Court concerned under section 13-B of the Hindu Marriage Act, the affidavit filed by respondent no. 3, contents whereof have been quoted herein before, is self speaking and explanatory. Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights including the right of visitation.

49. Master Lakshya also requires an atmosphere of more enduring relationship. In this background, I am in complete agreement with the judgment of the Division Bench of Hon'ble Delhi High Court in the case of Teesta Chattoraj (supra) and reiterate that if the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.

50. I further agree with the said judgment of Delhi High Court with all sincerity where it enunciates that though Indian law does not, on renunciation of child by either parent, vests an exclusive right in the other to give the child in adoption, however, such renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated, or to determine the consent to giving in adoption.

51. This Court can also not loose sight of the duty cast on it to exercise parens patriae jurisdiction to secure the care, protection and welfare of the child. International Convention on Rights of Child to which India is a signatory, also talks about ensuring a system of adoption to be in place which serves the best interest of the child, the same being of paramount importance.

In the High Court of Allahabad

(Before Devendra Kumar Upadhyaya, J.)

Shweta Gupta v. Rahul Keshav Jadhao & Anr.

Misc. Single No. - 15554 of 2017

Decided on October 4, 2017

Citation: 2017 SCC OnLine All 2289

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Leading Judgment on Adoption of child under Hindu adoption and maintenance Act

 In the cases reported as (1) AIR 1983 SC 114
(Madhusudan Das v. Narayani Bai); (2) A.I.R. (32) 1945
Nagpur 60 (Maroti Bansi Teli v. Radhabai); and, (3) AIR
1970 SC 1286 (L. Debi Prasad v. Tribeni Devi) Shatrik
Hindu Law is discussed. In these cases it is made clear
that for proving the adoption, giving and taking are
absolutely necessary. Giving and taking is operative part
of the ceremony of adoption and so physical act of giving
and taking must be proved even if there is a deed of
adoption. In these cases, it is laid down that the evidence
on giving and taking must be free from suspicion of fraud.
It is made clear in aforesaid cases that no particular form
of adoption is required but for proving factum of adoption,
it needs to be proved that natural father was asked by
adoptive parents to give his son in adoption and then the
natural father had handed over the son and the adoptiveparents took the boy for adoption. These cases show that
the requisites of giving and taking need to be fulfilled
even in case of Sudra.
21) In the case reported as AIR 1930 PC 79 (Dal
Bahadur Singh v. Bijai Bahadur Singh) it has been made
clear that adoption must be beyond suspicion and of
unimpeachable character. It is laid down that proof should

be strict and severe. 

 It can
be said that in view of provision of section 60 of the
Evidence Act, direct evidence on adoption must be given
when it is available. 

 proof of the adoption must be free
from all suspicion of fraud and so consistent and probable
as to leave no occasion for doubt of its truth, and the
evidence in support of the same should be of"unimpeachable character." 

Privy Council held that the adoption to
be not proved observing as follows :-
"All the witnesses seem to have been friends or relations of
the parties and there is no corroboration of their testimony
such as is often found in cases of disputed adoption. No priest
or local official who might be regarded as disinterested was
called; no cards of invitation to the ceremony were produced,
and there was no photograph of the ceremony. The direct
evidence in support of the ceremony was therefore weak ...."
From these judgments of the highest Court, it is, therefore,
clear that since adoption displaces the normal order of
succession, Courts, must insist upon strict and even severe

standards of proof, and the evidence by which the adoption
is sought to be proved must be beyond suspicion and of
unimpeachable character."

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995

Saraswati Keshav Mandve, Vs  Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668

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What is importance of surrounding circumstances for ascertaining trustworthiness of witnesses?

The learned counsel for the respondent,
plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995
Saraswati w/o Keshav Mandve,

V
Chandrabhan s/o Baliram Kale,

 CORAM: T.V. NALAWADE, J.

 DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668

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How to prove that plaintiff was adopted son?

The controversy which is sought to be raised is that the appellant-plaintiff has never claimed that he was the adopted son, which claim was sought to be made by the amendment of the plaint and this attempt of the appellant had failed.

We are of the view that once the plaintiff has mentioned in the plaint that he was the only son of late Hira Lal, it was not necessary for him to specifically plead that he was an adopted son.

Section 3(57) of the General Clauses Act, 1897 defines 'son' as under: "'son' in the case of any one whose personal law permits adoption, shall include an adopted son;"

Once the law recognizes adopted son to be known as son, we fail to understand why it was necessary for the appellant to plead that he was the adopted son. His averment to the effect that he was the only son, according to us, would be sufficient to lay the claim of inheritance on that basis. No doubt, the respondent has denied the appellant being the son of late Hira Lal. It is for this reason, the appellant wants to prove that he is the adopted son and in support of this plea, the appellant had summoned the original of Adoption Deed dated 29.03.1974 from the office of Sub-Registrar.

It may also be kept in mind that the appellant, in order to prove his claim, is relying upon a document which is a public document and was purportedly registered more than 40 years ago, i.e., in the year 1974.

There was no justifiable reason for the trial court to reject the aforesaid plea in view of the provisions of Section 3(53) of the General Clauses Act. In fact, it was not even necessary for the appellant to move an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, with an attempt to take a specific plea that he was the adopted son as, we say at the cost of repetition, his plea to the effect that he was the son of late Hira Lal was an adequate plea and to prove that he was the son, he could also place on record the document, i.e., the adoption deed in the instant case, to show that he was the adopted son.

Therefore, the dismissal of application for amendment filed by the appellant on the earlier occasion would be inconsequential, though we may hasten to add that the High Court was not entirely justified in rejecting the application on the ground that his plea that he was the adopted son was inconsistent with the earlier plea. We do not see any such inconsistency. Be that as it may, we are of the view that it was not even necessary to seek an amendment of the plaint and, thus, we leave the matter at that.
SUPREME COURT OF INDIA

Pawan Kumar Pathak Vs. Mohan Prasad

[Civil Appeal No. 4456 of 2016 arising out of SLP (Civil) No. 16486 of 2015]

Dated:26 April 2016

Citation: AIR 2016 SC 2155

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Supreme Court: Adoption Deed does not require Registration

In this context, it will be worthwhile to note the requirement of registration of an Adoption Deed. Section 17 of the Registration Act specifically refers to the documents of which registration is compulsory. The deed of adoption is not one of the documents mentioned in sub-section 1 of Section 17 which mandatorily required registration. Sub-section 3 of Section 17 only refers to the mandatory requirement of registration of an authorization that may be given for adopting a son executed after 01.01.1872 if such authorization was not conferred by a Will. Dealing with the said provision relating to authorization, it has been held in the decision reported in Vishvanath Ramji Karale V. Rahibai Ramji Karale and others - AIR 1931 Bombay 105 by a deed of adoption as distinguished from authority to adopt does not require registration.

Supreme Court of India

Mst.Param Pal Singh Tr.Father vs M/S National Insurance Co.& Anr. on 14 December, 2012

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