ordinarily when direct evidence is available, the Court
must insist for proof of factum of adoption on the basis of
direct evidence. Even when there is a document of
adoption, the Court is expected to insist for proof of
factum of valid adoption when direct evidence is available.
There may be surrounding circumstances in existence,
which may be consistent or inconsistent with the direct
evidence. In such cases it becomes the duty of the Court
to ascertain as to whether the witnesses who have given
direct evidence on adoption are trustworthy or not and
that needs to be done on the basis of the surrounding
circumstances.
26) The facts of the aforesaid reported case
indicate that there may be surrounding circumstances like
mutation made in favour of a party claiming rights as
adopted son or there may be circumstances that such a
party had performed last rites of the deceased (adoptive
parents) or the marriage of such party was solemnized by
deceased. On the basis of such circumstances only the
Court is not expected to draw inference that these things
were done only due to adoption. When the Court comes to
the conclusion on the basis of so called direct evidence
that there was no valid adoption, surrounding
circumstances cannot help in proving valid adoption. In
the cases (cited supra) the other probabilities available for
explaining such circumstances are discussed. In one case
it is observed that when no son was born from deceased,
performance of last rites by brother of the deceased or
son of such brother is possible under Hindu law and so
such circumstance cannot weigh much for proving
adoption. Thus, the Court is expected to start with
presumption that the proof of factum of adoption must be
strict and severe.
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
