INDRAWATI Vs. JAGMAL AND ANR.

JUDGEMENT

(1.) IN a declaratory suit filed by Indrawati Petitioner against the Respondents, an allegation was made that Jagmal, Respondent who claimed to be the validly adopted son of Shrimati Karian, Respondent was not actually so. The trial Court in consequence of the pleadings of the parties framed an issue in regard to the alleged adoption of Jagmal as son of Shrimati Karian and while doing so, placed the onus of proving the fact that Jagmal was not the validly adopted son of Shrimati Karian on the Plaintiff. The Plaintiff -Petitioner then moved an application praying to the trial Court that the onus had been wrongly placed upon her and that, in fact, the onus of proving that Jagmal was the validly adopted son of Shrimati Karian should have been placed upon him, as adoption, by its very nature is against the natural course of succession. The application was considered by the trial Court and was dismissed by means of the impugned order, dated February 16, 1978.

(2.) I have heard the learned Counsel for the parties on the above point which, in fact, is the only point agitated in this Revision Petition. The learned Counsel for the Petitioner has drawn my attention to the provisions of sections 16 and 30 of the Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the Act). There is no dispute that the alleged adoption in the present case is by means of a registered document which was executed in the year 1962, in which it was recited that the actual adoption had taken place in the year 1952, i.e. before the coming into force of the Act. Under Section 16 of the Act, whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption, the Court has to presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. However, under Section 30 of the Act, it has been specifically provided that nothing contained in this Act shall affect any adoption made before the commencement of this Act, and validity and effect of any such adoption shall be determined as if this Act had not been passed. As already observed, the actual adoption is said to have taken place in the year 1952, i.e. before the coming into force of the Act. By virtue of Section 30 of the Act we cannot, therefore, seek assistance of Section 16 for the purpose of placing the burden of proving the adoption upon the Plaintiff -Petitioner. If the provisions of the said Act are ignored, we have to revert to the general law regarding placing of burden on the question of adoption. In this behalf, reference has been made to para 512 of Mulla's Hindu Law (Thirteenth Edition), wherein it has been mentioned that the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. The rule of law as laid down aforesaid has been reiterated in Ranjit Sahu v. Nilambar Sahu and Anr. : A.I.R. 1978 Ori 48. The said case, of course, dealt with the question of adoption under the Act, but during the course of the discussion, the learned Single Judge observed that apart from the Act, a heavy burden lay on the person who claims on the basis of adoption. In this position of law, the order of the trial Court placing the burden of proving the adoption on the Petitioner is patently illegal and requires to be reversed.