RANJIT SAHU Vs. NILAMBAR SAHU

JUDGEMENT

(1.) This miscellaneous second appeal arises out of an appellate order of the learned Additional District Judge upholding the rejection of an objection under S. 47 of the Code to the execution proceeding.

(2.) Title Suit No. 56/44 of 1963/ 1964 was for partition. During the pendency of the suit, on 4-2-1965 the second defendant who was a cosharer died. No substitution, however, was effected. On 23-4-66, the preliminary decree was drawn up. On 2-2-1973, the decree was made final. Thereafter execution Case No. 33 of 1973 was levied for execution of the final decree. The appellant who was judgment-debtor No. 4 made an application under S. 47 of the Civil P. C. on the allegation that the decree was a nullity, inasmuch as though he was the adopted son of the second defendant, no substitution was effected and he had not been brought on record. The objection was registered as Miscellaneous Case No. 76 of 1973 and witnesses were examined on behalf of the objector and two for the decree-holder. The objector produced a registered deed of adoption dated 22-1-1964 by which the second defendant late Baji Sahu had acknowledged to have adopted him some time prior to 1956. The voters list of 1973 prepared during the pendency of the case was also produced in support of the claim of adoption. The executing court came to hold that S. 16 of the Hindu Adoptions and Maintenance Act of 1956 had no application to the case and, therefore, proceeded to assess the evidence for judging the merit of the claim of adoption by placing the burden on the objector and ultimately negatived the claim. The appellate court looked at broad features of the case and was impressed by the fact that adoption was claimed to have taken place during the period of obsequies which is not a normal feature and upheld the order of the executing court. This concurrent finding negativing the claim of adoption is assailed in second appeal.

(3.) The scope of S. 16 of the Hindu Adoptions and Maintenance Act (hereinafter referred to as the 'Act') has been examined at length by this Court in the cases of Radha Krishna v. Bhuyan Shri Shyam Sundar, AIR 1964 Ori 136, Shyama Sundar Padhi v. Dharanidhar Padhi, (1971) 1 Cut WR 784 and Manishi Krishna Murty v. Manishi Chinna Yerrayya (1971) 2 Cut WR 36. In case Ext. 1 would satisfy the tests of Section 16 of the Act, the burden to disprove the fact of adoption would be on the plaintiff-decree-holder and respondents' counsel concedes that in that eventuality the orders of the executing court and the appellate authority would not be sustainable. The main question for consideration therefore, is as to whether Sec. 16 of the Act would be applicable.