AYODHYA PRASAD TEWARI Vs. RAMESH CHANDRA

JUDGEMENT

(1.) Heard learned Counsel for the appellant and learned Counsel for respondent No. 1. This appeal has been filed against the judgment and decree dated 14.12.2011. The facts in short giving rise to the present dispute are that a suit for cancellation of adoption deed dated 16.6.1986 was filed in the Court of II Addl. Civil Judge (Senior Division), Faizabad with the allegation that the plaintiff and defendant No. 2-Ganga Prasad were real brothers of Bhagauti Prasad and they were the only successors after the death of Bhagauti Prasad and they were the owner of the movable and immovable property of late Bhagauti Prasad on the basis of succession. Defendant No. 1 Ramesh Chandra happens to be the son of defendant No. 2 and defendant No. 2 with a view to usurp the property of late Bhagauti Prasad got executed a forged adoption deed on 16.6.1986 in favour of defendant No. 1. It is stated that an application for mutation was moved by the plaintiff/or mutating his name after the death of late Bhagauti Prasad, which was opposed by the respondents. It was alleged that no adoption deed was ever executed in favour of defendant No. 1 and he was never adopted. It was also alleged that Kamla Devi does not happen to be the wife of late Bhagauti Prasad and neither she was entitled to take defendant No. 1 in adoption. Defendant No. 1 never lived alongwith late Bhagauti Prasad and all throughout plaintiff and defendant No. 2 were in possession over the property of late Bhagauti Prasad. The said adoption deed was hit by the provisions of sections 6 to 11 of the (for short "the Act"). The last rituals of late Bhagauti Prasad was also performed by the plaintiff and defendant No. 2 and defendant No. 1 never participated in the last rituals. On the aforesaid allegation, it was prayed that the adoption deed dated 16.6.1986 may be set aside and entry may be made for the same in the office of the Deputy Registrar, Faizabad.

(2.) After hearing learned Counsel for the parties the Appellate Court framed one point for determination; as to whether the adoption deed dated 16.6.1986 was hit by the provisions of sections 6 to 11 of the Act and whether the adoption deed was proved in accordance with law by the defendants.

(3.) The Appellate Court while appreciating the controversy found that there was State amendment in section 16 of the Act, which provided that after 1.1.1977 the adoption deed must be a registered deed and the Appellate Court found that in the present case adoption deed was a registered deed and once there was adoption done, the State amendment contemplates that the factum of adoption shall stand proved and proving of giving and taking would not be necessary. Only exception which has been carved out is that execution of the documents and signatures of persons giving and taking in adoption were required to be proved. The Appellate Court found that the conclusion drawn by the Trial Court ignoring the State amendment in section 16 of the Act was wholly erroneous and therefore, came to the conclusion that giving and taking in pursuance to the adoption was not required to be proved and it was only to be seen as to whether the adoption deed was proved by late Bhagauti Prasad and another. On the basis of the evidence, it is evident that the natural mother-father of defendant No. 1 and late Bhagauti Prasad and his wife Kamla Devi got the adoption deed registered before the Registrar and therefore, the presumption lay under law that the adoption has taken place and the adoptee son was given in adoption to the adoptee father and mother. The Court also found that the judgment rendered in the case of Gramsabha Kaunnai, post Radhakund, Tehsil Sadar, Mathura v. Deputy Director of Consolidation Mathura, 2009 76 AllLR 351, was the relevant law on the point and on the basis of that, it has to be presumed that there was no fault in the factum of giving and taking and on the basis of given evidence, it was clear that the adoption deed was proved in accordance with law by the witnesses.