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Bharatlal vs Chherkinbai And Ors. 55 … on 11 September, 2018

S.A.No.52/2001

Page 1 of 9

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.52 of 2001

Bharatlal, aged 28 years, adopted son of Maniram Chandnahu, R/o
Village Raikona, Tahsil Bilaigarh, District Raipur.
—- Appellant/
(Plaintiff)

Versus

1. (a) Chherkinbai, aged 55 years, widow of Salikram;

(b) Vimlabai, aged 25 years, daughter of Salikram;

(c) Rameshkumar, aged 20 years;

All R/o Village Bardula, District Raigarh.

2. Kamlabai, aged 30 years, W/o Nandram Chandnahu, R/o Ulkhar,
Tahsil Sarangarh, District Raigarh.

3. Bahrata, aged 30 years, S/o Dhaniram Chandnahu, Cultivator and R/o
Bardula, Tahsil Sarangarh, District Raigarh.

4. State of M.P. (now State of C.G.), through Collector, Raipur.

5. Hiraram, S/o Haricharan Sahu.

6. Rupram, S/o Haricharan Sahu;

7. Kanhaiyalal, S/o Chiaitram Satnami;

Nos.5 to 7 R/o Village Raikona, Tahsil Bilaigarh, District Raipur.
—- Respondents/

(Defendants)

For Appellant: Mr. Manoj Paranjpe and Mr. Anurag Singh, Advocates.
For Respondents No.1(a), (c), 2, 3, 5 and 6: –

Mr. Vivek Tripathi, Advocate.

For Respondent No.4 / State: –

Mr. Ashish Surana, Panel Lawyer.

Hon’ble Shri Justice Sanjay K. Agrawal

Judgment On Board

11/09/2018

1. The substantial questions of law involved, formulated and to be

answered in the plaintiff’s second appeal are as under: –

S.A.No.52/2001

Page 2 of 9

“1). Whether on the facts and in the circumstances of the
case the Courts below were justified in holding that the
plaintiff has failed to prove the adoption in accordance
with law?

2). Whether the Courts below were justified in not placing
their absolute reliance on the deed submitted by the
plaintiff?”

2. The following genealogical tree would show the relationship

between the parties: –

Chandan Singh

__

Maniram Salikram
Chamarin Chherkinbai
D-1(a)

Bharatlal (Plaintiff)

Ramesh Kumar Kamlabai Vimlabai
D-1(c) D-2 D-1(b)

3. Maniram and Salikram forming a Hindu Undivided Family held the

suit properties mentioned in Schedule-A, B, C, D, Ka and Kha. It is

the case of the plaintiff that Maniram and his wife Chamarin had no

issue and therefore plaintiff Bharatlal, since his infancy, was living

with Chamarin and was being treated as her son while his natural

father is Sunderlal. It is also the case of the plaintiff that Sunderlal

gave his son Bharatlal to Smt. Chamarin while Smt. Chamarin took

Bharatlal as her son and when Bharatlal attained the age of 16

years, a registered deed was executed by Chamarin acknowledging

that Bharatlal was taken as her son ten years before the execution
S.A.No.52/2001

Page 3 of 9

of registered deed dated 22-6-1990 vide Ex.P-13. According to the

plaintiff, Chamarin died on 20-1-1991 and her estate was inherited

by Bharatlal, her adopted son. However, Kamlabai claiming herself

to be an adopted daughter of Maniram and Chamarin relying upon

a document Ex.D-1 dated 15-2-1968 sold certain properties to

defendants No.5 to 7 on 28-1-1992 despite the plaintiff’s protest

leading to filing of a suit by the plaintiff claiming partition, allotment

of half share and separate possession over the properties

mentioned in the plaint which was opposed by the defendants by

filing written statement.

4. The trial Court after appreciating oral and documentary evidence on

record held that plaintiff Bharatlal is not the adopted son of

Chamarin, wife of Maniram, and further held that Ex.P-13 does not

bear the signatures of Bharatlal’s natural parents; no consent of

Jankibai, wife of Sunderlal, is recorded therein; requisites of

Sections 9 and 10 of the Hindu Adoptions and Maintenance Act,

1956 were lacking; and the Pandit performing datta homam has not

been examined, as such, the alleged adoption deed has not been

established beyond all reasonable doubts and thus, dismissed the

suit.

5. On appeal being preferred, the first appellate Court has affirmed the

reasonings and findings negativing the plea of adoption of Bharatlal

by Smt. Chamarin thereby affirming the judgment decree of the

trial Court leading to filing of second appeal before this Court in

which substantial questions of law have been framed which are set

out in the opening paragraph of this judgment.

S.A.No.52/2001

Page 4 of 9

6. Mr. Anurag Singh, learned counsel appearing for the appellant /

plaintiff, would submit that both the Courts below are absolutely

unjustified in dismissing the suit of the plaintiff ignoring the material

piece of evidence available on record, as such, the judgment

decree passed by the first appellate Court deserve to be set aside,

as there is sufficient evidence on record to hold that the plaintiff was

adopted in accordance with law by Late Chamarin, and the

substantial questions of law be answered in favour of the plaintiff /

appellant herein.

7. On the other hand, Mr. Vivek Tripathi, learned counsel appearing for

the defendants, would support the impugned judgments and submit

that the concurrent findings recorded by the two Courts below are

findings of fact based on the evidence available on record, the said

findings are binding on this Court and no interference is warranted

in the second appellate jurisdiction of this Court, as such, the

appeal deserves to be dismissed.

8. I have heard learned counsel for the parties and considered their

rival submissions and went through the records with utmost

circumspection.

9. The short question for consideration would be, whether the fact of

adoption of the plaintiff by Chamarin is established that he is the

adopted son of Chamarin?

10. In order to consider the said plea, it would be appropriate to notice

the necessary provisions in this regard contained in the Hindu

Adoptions and Maintenance Act, 1956 (for short, ‘the Act of 1956’).

Section 10 of the Act of 1956 provides as under: –

S.A.No.52/2001

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“10. Persons who may be adopted.–No person shall be
capable of being taken in adoption unless the following
conditions are fulfilled, namely–

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a
custom or usage applicable to the parties which
permits persons who are married being taken in
adoption;

(iv) he or she has not completed the age of fifteen
years, unless there is a custom or usage applicable to
the parties which permits persons who have
completed the age of fifteen years being taken in
adoption.”

11. Section 10 of the Act of 1956 states about the persons who may be

adopted. Section 11 speaks about the other conditions for a valid

adoption. Clauses (4) and (6) of Section 11 are relevant which are

extracted herein-below: –

“11. Other conditions for a valid adoption.–In every
adoption, the following conditions must be complied with:

(i) to (iii) xxx xxx xxx

(iv) if the adoption is by a female and the person to be
adopted is a male, the adoptive mother is at least
twenty-one years older than the person to be adopted;

(v) xxx xxx xxx

(vi) the child to be adopted must be actually given and
taken in adoption by the parents or guardian
concerned or under their authority with intent to
transfer the child from the family of its birth or in the
case of an abandoned child or a child whose
parentage is not known, from the place or family where
it has been brought up to the family of its adoption:

Provided that the performance of datta homan,
shall not be essential to the validity of an adoption.”

12. For a valid adoption, the physical act of giving and taking is an

essential requisite. The give and take in adoption is a requirement
S.A.No.52/2001

Page 6 of 9

under Section 11(vi) of the Act of 1956 and stands as a sine qua

non for a valid adoption (see Jai Singh v. Shakuntala 1).

13. In the matter of Kishori Lal v. Chaltibai 2, the Supreme Court has

held that as an adoption results in changing the course of

succession, depriving wives and daughters of their rights and

transferring properties to comparative strangers or more remote

relations it is necessary that the evidence to support it should be

such that it is free from all suspicions of fraud and so consistent

and probable as to leave no occasion for doubting its truth.

14. The said judgment has further been followed in the matter of

Madhusudan Das v. Smt. Narayanibai (Deceased) by L.Rs.

and others 3 in which it has been held that a person who seeks to

displace the natural succession to property by alleging an adoption

must discharge the burden that lies upon him by proof of the factum

of adoption and its validity. It has been further held as under: –

“For a valid adoption, the ceremony of giving and taking
is an essential requisite in all adoptions, whatever the
caste. This requisite is satisfied in its essence only by
the actual delivery and acceptance of the boy, even
though there exists an expression of consent or an
executed deed of adoption. In some cases, to complete
the adoption a “datta homam” has been considered
necessary, but in the case of the twice-born classes, no
such ceremony is needed if the adopted boy belongs to
the same gotra as the adoptive father.”

15. Section 10(iv) of the Act of 1956 clearly provides that in order to be

taken in adoption, the person to be adopted, he or she, must not

have completed the age of 15 years, unless there is a custom or

usage applicable to the parties which permits adoption of a person

1 (2002) 3 SCC 634
2 AIR 1959 SC 504
3 (1983) 1 SCC 35
S.A.No.52/2001

Page 7 of 9

of more than 15 years of age.

16. Reverting to the facts of the present case, in the instant case, it is

the case of the plaintiff that since Maniram and his wife Chamarin

had no issue, plaintiff Bharatlal is staying / living with Chamarin

since his infancy and was being treated as her son while his natural

father Sunderlal gave his son Bharatlal, the plaintiff, to Chamarin

and deed was executed vide Ex.P-13 acknowledging the fact of

adoption, on 22-6-1990.

17. In order to further consider the plea, it would be appropriate to

notice the adoption deed filed as Ex.P-13 which has been signed

by the plaintiff’s natural father Sunderlal and originally signed by

Chamarin. The deed of adoption (Ex.P-13) reads as follows: –

गगोदपत

गगोद ललेनले ववाललल- शलमतल चमवाररिन, उम-65 वरर , बलेववा-मनलरिवाम चन्दनवाहह
कवास्तकवारि, सवाककन-रिवायकगोनवा, पगोस्ट-रिवायकगोनवा,
तहसलल-कबलवाईगढ, जजिलवा-रिवायपपुरि

गगोद जलयले जिवानले ववालवा भरितलवाल, उम-16 वरर , कपतवा-सपुन्दरिलवाल चन्दनवाहह
यवानले अब दत्तक पपुत कवास्तकवारि, सवाककन व पगोस्ट-रिवायकगोनवा, तहसलल-

कबलवाईगढ, जजिलवा-रिवायपपुरि

मलेरिले पकत मनलरिवाम कवा लगभग 16 वरर सले अजधिक हह यले दलेहवावसवान हगो गयवा । हमवारिल
कगोई ससतवान नहहीं हहै । गगोद जलयले जिवानले ववालवा उक्त भरितलवाल मलेरिवा सजिवातलय एवस
पवाररिववाररिक सदस्य हहै जजिसले ममनले उसकले जिन्म सले हल अपनवा गगोद पपुत बनवानले ककी घगोरणवा
उसकले मवातवा कपतवा ककी सम्पकत सले करि दल हहै । उक्त भरितलवाल कले पवालन पगोरण मम
मलेरिवा शपुरू सले सहयगोग रिहवा हहै एवस मम उसले अपनले पपुत कले समवान मवानतल आ रिहल हह स । यह
भरितलवाल अब मलेरिले पवास हल रिहतवा हहै । ममनले इस भरितलवाल कगो कवजधिवत गगोद ललेकरि
अपनवा पपुत बनवा जलयवा हहै औरि अब इस गगोदपत कले जिररियले घगोकरत करितल हह स कक आजि
औरि अभल सले उक्त भरितलवाल मलेरिवा दत्तक पपुत हह ववा एवस उसले मलेरिले पपुत कले अब सभल
अजधिकवारि पवाप्त हह वले । यहल भरितलवाल बततौरि एवस बहहैजसयत मलेरिले पपुत कले मलेरिवा एकमवात
उत्तरिवाजधिकवारिल हहै एवस इसले मलेरिले सभल पकवारि कले चल अचल सम्पकत परि मलेरिले पपुत कले
अजधिकवारि पवाप्त हहोंगले । अब अभल सले उक्त भरितलवाल मलेरिवा पपुत हह ववा एवस उसकले कपतवा
कवा नवाम अब मलेरिले पकत यवानले मनलरिवाम हह वले । अतल यह गगोदपपुत जलखवाकरि समझकरि
S.A.No.52/2001

Page 8 of 9

कनशवानल असगपुठवा बवासयवा करि अपनल स्वलकककत पदवान ककी कक सनद रिहले । फ.तवा.
22.06.1990 पवारूप टवाइप एवस बकलमल-परिमलेश्वरि दयवाल कमश, दस्तवगोजि ललेखक,
क्रमवासक 28, कबलवाईगढ

कनशवानल असगपुठवा बवासयवा शलमतल चमवाररिन

18. On a careful perusal of the aforesaid adoption deed, it would be

quite appropriate notice that the age of the plaintiff is shown to be

16 years and the said Chamarin had stated that she had already

declared to take Bharatlal as her adopted son, she is also treating

Bharatlal as her son and he was staying with her, and now, she had

adopted him lawfully and declared by this adoption deed from the

date of execution of the adoption deed i.e. 22-6-1990 to be her

adopted son and all the rights he would get by adoption from the

date of adoption and he is the successor of her. It would be quite

evident on the tenor and texture of the aforesaid adoption deed that

it nowhere mentions that Bharatlal – plaintiff had already been

adopted by Smt. Chamarin and ceremony as required under

Section 11(vi) of the Act of 1956 has been performed and that the

child to be adopted must be actually given and taken in adoption by

the parents or guardian concerned with intent to transfer the child

from the family of its birth. But it flows from the adoption deed that

though Smt. Chamarin desired to adopt the plaintiff as her adopted

son and maintaining him also, but actually adopted the plaintiff as

on 22-6-1990 by giving him all the rights and making him successor

of the property from the date of execution of adoption deed which is

in clear violation of Section 10(iv) of the Act of 1956, as the

plaintiff’s age shown in the adoption deed is more than 15 years i.e.

he had already completed the age of 15 years on the date of
S.A.No.52/2001

Page 9 of 9

adoption vide Ex.P-13. If the plaintiff would have been adopted

prior to the date of execution of adoption deed, there was no

reason not to mention it in the adoption deed, as the intention of

Chamarin to adopt the plaintiff and maintaining him and treating him

as her son has already been recorded, but that would not amount

to adoption in absence of physical act of giving and taking which is

an essential requisite as stated in Section 11(vi) of the Act of 1956.

19. The trail Court has clearly recorded a finding that the plaintiff has

failed to establish the act of adoption 10 years prior to filing of the

suit and thereafter, in furtherance of adoption, the deed was

executed on 22-6-1990 (Ex.P-13) in his favour. The said finding

has been affirmed by the first appellate Court which is neither

perverse nor contrary to record.

20. In the considered opinion of this Court, both the Courts below are

absolutely justified in holding that the plaintiff has failed to plead

and establish the deed of adoption in his favour by Chamarin. As a

result, the substantial questions are answered against the plaintiff

and in favour of the defendants.

21. Consequently, the second appeal is dismissed affirming the

judgment decree passed by the first appellate Court reaffirming

the decree of the trial Court. There will be no order as to cost(s).

22. A decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal)
Judge

Soma

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