ACHHAR SINGH Vs. DARBARA SINGH

JUDGEMENT

(1.) One Gurdit Singh was the owner of the land in dispute. He gifted it away in favour of defendant Nos. 1 to 8 and Pritam singh deceased husband of Naranjan Kaur defendant No. 9 through two registered deeds dated May 10, 1958. The plaintiff-appellants challenged these gifts by way of a declaratory suit on the ground that the parties were governed by custom and the land being ancestral qua them, the alienations made were ineffective against their reversionary rights which was decreed on December 1, 1960. On the death of Gurdit Singh, they filed the present suit for possession of 3/4 share of the suit land.

(2.) The suit was contested on various grounds but the only plea with which we are concerned in this second appeal is that the plaintiff were not the heirs of Gurdit Singh on the date of his death and, therefore, no suit was competent by them. The basis of this plea was that Gurdit Singh had adopted Darbara Singh defendant No. 7 sometime in the year 1954 and a registered deed executed to that effect by him on December 28, 1960. The trial Court negatived this plea and decreed the suit. But, on appeal, the learned Additional District Judge, Amritsar, vide judgment dated June 12, 1970 reversed that finding and dismissed the suit. Hence this second appeal.

(3.) For upholding the adoption, the lower Appellate Court relied on the presumption to be raised on the production of registered adoption deed under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act) which provides that 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. It further went on to observe that as there was no evidence in rebuttal, Darbara Singh was proved to be the adopted son of Gurdit Singh. This finding has been attacked by the learned counsel for the appellants on the ground that the alleged adoption having taken place prior to the enforcement of the Act, the provisions of Section 16 would not be applicable and as such no presumption regarding its validity could be raised. The argument appears to be unexceptionable because the presumption available under the said section is that the adoption has been made in compliance with the provisions of this Act which necessarily means that the presumption can be raised only regarding the adoption which takes place after the enforcement of the Act. The matter is not res-integra and came up for consideration before the Full Bench of the Jammu and Kashmir High Court in Shamsher Singh v. Deputy Custodian General,1973 AIR(J&K) 59, and it was held that the presumption under Section 16 can be raised only when an adoption is made under the Act and cannot be raised with regard to the adoption made before the Act came into force. A similar view was taken by R.N. Misra, J. of the Orissa High Court in Ranjit Sahu v. Nilembar Sahu and another, 1978 AIR(Ori) 48, following the decision in Shamsher Singh's case . Fully agreeing with the ratio of the Full Bench decision, I also hold that the post acknowledgement of pre-Act adoption would not come within the ambit of Section 16 and no presumption regarding its validity would be available under that provision. As the learned Additional District Judge did not go into the evidence regarding the factum and validity of the alleged adoption this case has either to be remanded for recording fresh finding or the evidence has to be scanned thoroughly by me for recording fresh finding. As this litigation started in the year 1966, I choose to adopt the later course.