GOVIND PRASAD AGRAWAL Vs. CHHANNOBAI

JUDGEMENT

(1.) IN a suit for declaration, partition and for permanent injunction, instituted on 11.4.1985, by an old lady, the Plaintiff, the Defendant No. 1, aggrieved of an order of rejection of his application dated 9th December, 1989, under Order 14, R. 5, read with S. 157, CPC, whereby the Trial Court refused to amend issued Nos. 13 (A), (B), 14 and 15, has preferred this revision. The short facts leading to this revision are thus: According to the plaint pleadings, deceased Moolchand, who had three sons, Badriprasad, Govindprasad and Bhagwandas, was the owner of the suit property. Bhagwandas is alleged to have died in the year 1925, his widow Dippobai was joined as a party to the suit as Defendant No. 8 on her application under 0.1 R. 10, CPC. Dippobai averred in her written Statement that Manish Kumar son of Ramkishore was adopted by her by a registered deed of adoption dated 5th February 1987, hence, the adopted son is the son of her late husband Bhagwandas and is a necessary party to the suit, and if a decree for partition is passed, Manish Kumar is entitled to the share of Bhagwandas, and the Plaintiff is not entitled to get any relief. Alternatively, it was prayed that in case a decree for partition of the share in favour of the Plaintiff is passed, maintenance be awarded to her from the share of Bhagwandas and Manish Kumar be declared to be the owner of that portion of the property which will come to the share of Bhagwandas, on partition. A rejoinder to this written statement under Order 8 R. 8, CPC, was filed by the Plaintiff on 14.12.1987, in which the allegations of written statement and the right of Defendant Dippobai and her so -called adopted son were denied. In para 3, it was averred that the deed of adoption is a forged and sham document, based on collusion between Govindprasad, Defendant No. 1/applicant, other defdts. and Dippobai, and even if the document is there, the adoption is not valid at all. On these pleadings', the aforesaid additional issued Nos. 13 (A), (B), 14 and 15 were framed on 13.11.1987 placing onus of proof of the said issued on the Defendants. The Plaintiff whose evidence was being recorded, made a prayer for reserving her right to adduce evidence in rebuttal on the said issued. This prayer was allowed. Against this order, the Petitioner/Defendant came before this Court in revision. At the hearing of C. R. No. 178/1989, the Petitioner expressed that he would prefer to move the Trial Court for suitable amendment in the issues and, reserving that liberty, sought withdrawal of the revision which was allowed vide Order dated 4.12.1989. After withdrawal of the revision, the Defendant moved an application under Order 14 R. 5, CPC, read with S. 151, which was opposed and dismissed. Against the said order, again the Petitioner has come before this Court in this revision.

(2.) THE main contention of Shri H. D. Gupta, learned Counsel for the Petitioner, is that the Trial Court has wrongly placed the onus of proof of the aforesaid issued on the Defendants, because as per Section 16 of the Hindu Adoptions and Maintenance Act (78 of 1956), (for short, the 'Act') if a registered document of adoption is produced, a statutory mandatory presumption arises and the burden shifts upon the other party, who challenges it, to disprove the factum and validity of adoption. Learned Counsel placed reliance on S. 16 of the Act, cited a few decisions and submitted that an issue cannot be framed, placing the burden to lead evidence in negative. Before the Act came into force, the law of adoption amongst Hindus was uncodified, and a person claiming adoption was bound to prove the existence of adoption beyond doubt. Learned Counsel contended that after the enforcement of the Act, a specific provision in Section 16 has been made to the effect that whenever any document registered under law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the persons giving and 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. This presumption, certainly, will be available when the Court is satisfied of fulfilment of the conditions enumerated in Section 16. More production of a registered document of adoption would not be sufficient to raise the statutory mandatory presumption. A Division Bench of this Court in case of Naresh v. Ichrajbai 1979 MPLJ 591 has held that in order to attract applicability of the presumption enacted by Section 16 of the Act, fulfilment of all the conditions enumerated in Section 16 is necessary: (i) The document produced before the Court must purport to record an adoption made; (ii) it must be signed by the persons giving and taking the child in adoption, and (iii) it must be registered under any law for the time being in force, and these requirements must be satisfied for raising the presumption, that the adoption has taken place in compliance with the provisions of the Act, unless and until it is disproved.

(3.) IN a recent decision in case of Bholaram v. Ramlal, 1989 MPLR 328 a learned single Judge of this Court, following the decision in Naresh (Supra), held that the presumption that a valid adoption has taken place, cannot be drawn, unless the essential conditions laid down under Section 16 of the Act are satisfied. The Court further said that no presumption as to the factum of adoption and its validity could be drawn from and adoption merely because it is a registered document. Therefore, the contention of Shri Gupta, as rightly submitted by Shri Arun Mishra, learned Counsel for the Plaintiff/Respondent, that merely on production of the registered document of adoption, the trial Court is bound to raise the statutory mandatory presumption and, therefore, the Plaintiff ought to have been directed to lead evidence to disprove the same cannot be accepted. On pleadings of the parties, particularly as contained in para 3 of the rejoinder filed by the Plaintiff, of which the Petitioner did not file any further reply, the issues were rightly framed. Certainly on the pleadings as contained in para 3 of the rejoinder, which challenge the genuineness of the document, an issue has not been framed. In any case, the Defendant who is asserting the right on the basis of the registered document, which has been produced before the Court, would not be entitled to the special provision of the statutory presumption, unless the Defendant satisfies the conditions as laid down in Section 16 of the Act. As no issue has been framed on the pleadings as contained in para 3 of the rejoinder, the Petitioner/Defendant and other Defendants who are asserting the right on the basis of the deed of adoption, may be put to an anomalous situation, as they would be having no opportunity to lead evidence in rebuttal on the said pleadings. But it is settled that the question of onus should not enter into framing of issues at all, but should be dealt with by the Court while taking up the issues for consideration. The form in which an issue is framed cannot be determinative of the question of onus. The question of onus is a complicated question which may have a hearing on further question as to the right to begin or reserving the right of rebuttal, which can be decided by the Court if the parties invite the attention of the Court in that respect, after framing of the issues by the Court and before recording of evidence. The Petitioner, in the facts of this case, on a misconception, has withdrawn the earlier revision, but the withdrawal of the revision will not be a bar, as the evidence has not yet begun and the Petitioner after leading evidence on issues No. 13 (A), (B), 14 and 15, may invite the attention of the Court for reserving the right of rebuttal of the evidence led on the pleadings as contained in para 3 of the rejoinder, on which no issue has been framed, and that prayer, if no made, shall be dealt with and disposed of in accordance with law.