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Santram vs Smt.Shanti Bai (Died) Through … on 8 March, 2019

1

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.67 of 2003
Santram, son of Monudev, aged about 42 years, Caste – Kalar, Occupa-
tion – Agriculturist, resident of village Jhankadarha, Tah. Gharghora, Distt.
Raigarh (Chhattisgarh)
—- Appellant/Defendant No.1
Versus
1A. Sukhdev Kalar Son of Balakram, aged about 65 years, Resident of
Village Jhankadarha, Tahsil Gharghoda, District Raigarh (CG)
(Husband)
2B Smt. Janki Bai Wife of Satyanarayan, aged about 47 years, Resi
dent of Village Madanpur, Tahsil Kharsiya, District Raigarh (CG)
(Daughter)
1C Ravindra Kumar son of Sukdev, aged about 45 years, Resident of
Village Jhankadarha, Tahsil Gharghoda, District Raigarh (CG) (Son)
1D Ramesh Kumar Son of Sukdev, aged about 43 years, Resident of
Village Jhankadarha, Tahsil Gharghoda, District Raigarh (CG) (Son)
1E Smt. Madhri Bai Wife of not known, Resident of village Murra
(Bhupdevpur), Tahsil Kharsiya, District Raigarh (CG) (Daughter)
2.1 Bhagat Ram, aged about 57 years, son of Late Munudau, resident
of Ward No.13, Gharghora, Police Station-Gharghoda, Distt.
Raigarh (CG)
2.2 Salik Ram, aged about 55 years, son of late Munudau, resident of
Gharghora, Police Station – Gharghoda, Distt. Raigarh (CG)
2.3 Malik Ram, aged about 51 years, son of late Munudau, resident of
Gharghoda, Police Station – Gharghoda, Distt. Raigarh (CG)
3.1 Murlidhar, aged about 65 years, son of late Bedram, resident of
Village-Shekharpur, Tahsil Patthalgaon, Distt. Jashpur (CG)
4. The State of Chhattisgarh, through Collector, Distt. Raigarh
(Chhattisgarh)
—- Respondents

For Appellants/defendant No.1 : Mr.Vivek Bhakta, Advocate
For Respondents No.1 to 3/plaintiffs: Mr.Rajendra Tripathi, Advocate
For Respondent No.4 : Ms K. Tripti Rao, P.L.

Hon’ble Shri Justice Sanjay K. Agrawal
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Judgment on Board

08/03/2019

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

answered in the second appeal preferred by defendant No.1 is as

under:-

“Whether the finding of the first appellate Court was
justified in reversing the judgment and decree of the trial
Court only on the ground that the adoption deed
executed in favour of the appellant Santram did not
disclose any date or other specific details about the
adoption ?

[For the sake of convenience, the parties would be referred

hereinafter as per their status shown and ranking given in the

suit before the trial Court].

2. The suit land was originally held by Ram Charan. He had no male

issue. Plaintiff-Shanti Bai, daughter of Ram Charan, filed a suit that

she is sole owner of the suit land after death of her father and his

father-Ramcharan has not adopted defendant No.1-Santram, who is

her cousin (uncle’s son) and therefore, decree for declaration of title

and confirmation of possession and entry made in revenue records

is not binding on her.

3. Defendant No.1 set up a plea that Ram Charan had no male issue

and therefore, he has adopted him during his life time and to confirm

the adoption and to dispose off his share of property, Ram Charan

has executed a deed on 17.3.1983 (Ex.D/11A), as such, the suit

deserves to be dismissed. The trial Court after appreciating oral
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and documentary evidence available on record, by its judgment and

decree dated 26.6.2000, dismissed the suit. On appeal being

preferred by the plaintiff, the First Appellate Court set aside the

judgment and decree of the trial Court and held that the plaintiff is

sole owner of the suit land. Questioning legality and validity of the

impugned judgment and decree of the first appellate Court, this

second appeal under Section 100 of the CPC has been preferred by

the appellant/defendant No.1, in which substantial question of law

has been formulated, which has been set out in the opening

paragraph of this judgment.

4. Mr.Vivek Bhakta, learned counsel for the appellant/defendant No.1,

would submit that the first appellate Court is absolutely unjustified in

reversing the well merited judgment and decree of the trial Court

only on the ground that adoption deed (Ex.D/11A) executed in his

favour does not disclose the particulars about the adoption. He

would further submit that there is sufficient evidence on record and

admission is available to hold that Ram Charan has adopted

defendant No.1 as adopted son, therefore, the judgment and decree

of the first appellate Court deserves to be set aside restoring the

judgment and decree of the trial Court.

5. On other hand, Mr.Rajendra Tripathi, learned counsel for

respondents No.1 to 3/plaintiff, would support the impugned

judgment and decree.

4

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

rival submissions made hereinabove and also went through the

records with utmost circumspection.

7. Admittedly, Ram Charan had no male issue, who died on 15.9.1983

leaving her daughter plaintiff herein. In order to prove the adoption,

defendant No.1 has filed the document Ex.D/1A, which is an

agreement in which plaintiff-Shanti Bai has admitted the factum of

adoption of Santram by his father and during cross-examination,

she has admitted her signature in the said document. Likewise,

Ex.D/2A is the document, which is an agreement signed by

defendant No.1 as well as the plaintiff executed on 17.3.83 in which

both have agreed to have a partition of the suit land left by

Ramcharan as per share. Likewise, Ex.D/3A is batwara faisla, in

which it has clearly been stated that defendant No.1-Santram is

adopted son of Ram Charan and in order to prove Ex.D/3A, one of

the panchas Ashiq Khan Qadri has been examined as DW-3 and

document bears the signature of plaintiff-Shanti Bai. Likewife,

Ex.D/11A is also an agreement signed by father of the plainitff in

which he has clearly stated the fact of partition between his adopted

son Santram and daughter Shanti Bai, plaintiff herein, which has

been proved by Dev Singh (DW-4).

8. From perusal of the aforesaid documents, it is quite vivid that Ram

Charan has not only adopted Santram as adoptive son, but also

given the property as son along with the plaintiff by Ramcharan.

These documents have been discarded by the first appellate Court
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only on the ground that it is not registered in accordance with

Section 16 of the Hindu Adoption and Maintenance Act, 1956

(hereinafter called as “the Act of 1956”) as Section 16 of the Act of

1956 gives presumption to the registered documents relating to

adoption. Exs.D/1A to D/3A and Ex.D/11A are not the documents

relating to adoption, but these are the documents in which the

plaintiff, defendant No.1 and their father Ram Charan have admitted

the fact of adoption of Santram, as such, Section 16 of the Act of

1956 is not applicable and the first appellate Court has clearly

misdirected himself by applying Section 16 of the Act of 1956 to

discard the said documents. So far as the fact of adoption is

concerned, the defendant has examined Brajbandhu Das (DW-2)

who has clearly deposed the fact of adoption as per custom. Deed

of adoption is not one of the document which requires registration

(See Param Pal Singh through father v. National Insurance

Company and another 1.)

9. The Supreme Court in the matter of Kamla Rani v. Ram Lalit Rai

alias Lalak Ram (Dead) through legal representatives and

others 2 has held that factum of adoption and its validity has to be

duly proved though formal ceremony of giving and taking is

essential ingredient for valid adoption, long duration of time during

which a person is treated as adopted cannot be ignored. Para-6 of

the report states as under:-

1(2013) 3 SCC 409
2 (2018) 9 SCC 663
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“6. We cannot lose sight of the principle that though the
factum of adoption and its validity has to be duly proved
and formal ceremony of giving and taking is an essential
ingredient for a valid adopted, long duration of time
during which a person is treated as adopted cannot be
ignored and by itself may in the circumstances carry a
presumption in favour adoption. In this regard, we may
refer to the observations of this Court in L. Debi Prasad v.
Tribeni Devi3 : (SCC pp. 681-82, para 9)
“9. There is no doubt that the burden of proving
satisfactorily that he was given by his natural father
and received by Gopal Das as his adoptive son is
on Shyam Behari Lal. But as observed by the
Judicial Committee of the Privy Council in
Rajendrao Nath Holdar v. Jogendro Nath Banerjee4;
that although the person who pleads that he had
been adopted is bound to prove his title as adopted
son, as a fact yet from the long period during which
he had been received as an adopted son, every
allowance for the absence of evidence to prove
such fact was to be favourably entertained, and that
the case was analogous to that in which the
legitimacy of a person in possession had been
acquiesced in for a considerable time, and
afterwards impeached by a party, who had a right to
question the legitimacy, where the defendant, in
order to defend his status, is allowed to invoke
against the claimant every presumption which arises
from long recognition of his legitimacy by members
of his family; that in the case of a Hindu, long
recognition as an adopted son, raised even a
stronger presumption in favour of the validity of his
adoption, arising from the possibility of the loss of
his rights in his own family by being adopted in
another family. In Rup Narain v. Gopal Devi5 the
Judicial Committee observed that in the absence of
direct evidence much value has to be attached to
the fact that the alleged adopted son had without
controversy succeeded to his adoptive father’s
estate and enjoyed till his death and that documents
during his life and after his death were framed upon
the basis of the adoption. A Division Bench of the
Orissa High Court in Balinki Padhano v.

Gopalkrishna Padhano6]; held that in the case of an
ancient adoption evidence showing that the boy was
treated for a long time as the adopted son at a time

3 (1970) 1 SCC 677
4 1871 SCC OnLine PC11
5 1909 SCC On Line PC 3
6 1963 SCC OnLine Ori 33
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when there was no controversy is sufficient to prove
the adoption although evidence of actual giving and
taking is not forthcoming. We are in agreement with
the views expressed in the decisions referred to
above.”

10. Reverting to the facts of the present case in the light of

principle of law laid down by the Supreme Court in Kamla Rani

(supra), it is quite vivid that there is overwhelming evidence brought

on behalf of defendant No.1 in the shape of Exs.D/1A to D/3A and

Ex.P/11A and oral testimony of defendant’s witnesses to clearly

establish that Ram Charan, plaintiff’s father, has not only adopted

defendant No.1 during his life time, but also given property along

with plaintiff-Shanti Bai treating him as his adoptive son, which is

evident on record, which has been accepted by the plaintiff in the

documents Exs.D/1A to D/3A, which she is not entitled to resile, as

such, the first appellate Court is absolutely unjustified in setting

aside the well merited judgment and decree of the trial Court by

recording a finding, which is perverse on record.

11. For the foregoing reasons, the judgment and decree passed

by the first appellate Court is hereby set aside and that of the trial

Court is hereby restored. The substantial question of law is

answered accordingly.

12. The second appeal is allowed to the extent indicated

hereinabove leaving the parties to bear their own cost(s).

13. A decree be drawn up accordingly.

Sd/-

(Sanjay K.Agrawal)
Judge
B/-

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