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Shobhahant Kumar @ Poddar vs Rani Devi And Ors on 14 March, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.192 of 2011

Shobhakant Kumar @ Poddar, son of Late Ganesh Poddar, Resident of village

– Bhithi, P.O. and P.S. – Sabour, District – Bhagalpur.

… … Petitioner … … Appellant/s
Versus

1. Rani Devi, wife of Shobhakant Kumar @ Poddar aforesaid

2. Abhikant Poddar,

3. Abha Kumari,

4. Ansu Kumari,
All minors respectively son and daughters of Shobhakant Kumar @
Poddar aforesaid through their natural guardian and next frient Smt. Rani
Devi. All of village Bhithi, P.O. and P.S. – Sabour, District Bhagalpur.

….. Opposite Parties- Respondent 1st set

5. Pritam Kumar Deepak, son of Anirudh Pd. Poddar.

6. Prahlad Poddar, son of Late Praduman Lal Poddar
resident of village – Bhithi, P.O. and P.S. – Sabour District –
Bhagalpur.

…… Objector-Opposite Parties-Respondent 2nd set.

Appearance :

For the Appellant/s : Mr. Ganpati Trivedi, Sr. Advocate
Mr. Indeshwari Pd. Mandal, Advocate
For the Respondent/s : Mr. Ranjan Kumar Dubey, Advocate
Mr. Rajiv Ranjan Singh, Advocate
Mr. Shanti Bhushan Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 14-03-2019

Heard the parties.

2. By the impugned order dated 30.11.2010 passed in

Succession Case No. 34 of 2005, the learned Fast Tract Court-1st,
Patna High Court MA No.192 of 2011 dt.14-03-2019
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Bhagalpur has refused to grant succession certificate in favour of

the appellant mainly for the reason that appellant failed to prove

that he is adopted son of Late Ganesh Poddar for whose property

succession certificate was sought for.

3. The case of the applicant before the learned court

below was that applicant-Shobhakant Kumar @ Poddar was

adopted son of Late Ganesh Poddar vide registered adoption deed

dated 22.10.1975 vide Ext. 1. The adoption was made by

Shobhagayabati Devi, wife of Ganesh Poddar along with Ganesh

Poddar. After death of Ganesh Poddar and his wife, the appellant

claims to be a sole owner of his movable and immovable property.

4. Respondent No. 5 and 6 Pritam Kumar Deepak and

Prahlad Poddar contested the claim of the appellant on the ground

that appellant was never adopted by Late Ganesh Poddar or his

wife who were issueless nor the appellant has disclosed the factum

of adoption in his three earlier applications brought for grant of

succession certificate in respect of the property of Late Ganesh

Poddar which were dismissed for default. They further asserted

that last rites were performed by nephew of Late Ganesh Poddar

and not by the applicant.

5. The learned court below framed following five issues

for consideration:-

(i) Whether the application as framed is maintainable?
Patna High Court MA No.192 of 2011 dt.14-03-2019
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(ii) Whether the opposite party no. 5 and 6 have locus
standi to oppose the application?

(iii) Whether the applicant is duly and legally adopted
son of the deceased father (Late Ganesh Poddar)?

(iv) Whether the application under reference is barred
by law of limitation or otherwise?

(v) Whether the applicant is entitled to the succession
certificate as asked for?

6. Learned court below considered and decided issue

no. (iii) and (v) jointly and held that the appellant was not adopted

son of Late Ganesh Poddar nor he is entitled for any relief.

7. The finding is based on the reason that the appellant

had not stated in his earlier applications brought for issuance of

succession certificate that he is adopted son of Late Ganesh

Poddar. The learned court below further noticed that there is no

evidence on the record to suggest as to on what date the adoption

ceremony was performed. Who was the priest? Who were present

at the time of adoption? Merely a certificate is no evidence of

adoption.

8. Learned counsel for the appellant has challenged the

finding of the learned court below as completely erroneous one

arising out of misreading of evidence on the record and of the law.

Learned counsel has drawn attention of the Court to the first case

brought by the appellant for succession certificate which was

registered as Succession Case No. 48 of 2000. The petition is
Patna High Court MA No.192 of 2011 dt.14-03-2019
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marked as Ext. E which was dismissed for non-payment of court-

fee on 30.07.2003 vide order at Annexure-18. The appellant had

stated in the petition that he is son of Late Ganesh Poddar. The

second application was Succession Certificate Case No. 58 of

2001 marked as Ext. F which was dismissed for non-prosecution

on 24.02.2003 vide order at Annexure-18A. In that application

also, appellant stated that he is son of Late Ganesh Poddar. The

third application was Succession Case No. 18 of 2003 at Ext. G

which was dismissed for non-prosecution on 29.04.2004. In that

application also, the appellant stated that he is son of Late Ganesh

Poddar. Learned counsel submits that Section 12 of the Hindu

Adoptions and Maintenance Act, 1956 says that an adopted child

shall be deemed to be the child of his or her adoptive father or

mother for all purposes with effect from the date of the adoption

and from such date all the ties of the child in the family of his or

her birth shall be deemed to be severed and replaced by those

created by the adoption in the adoptive family. As such, there was

no need to make statement that the appellant is adopted son or

biological son of Late Ganesh Poddar.

9. I find substance in the submission of the learned

counsel for the appellant that only for the reason that the appellant

did not make specific averment that he is adopted son of Late
Patna High Court MA No.192 of 2011 dt.14-03-2019
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Ganesh Poddar, the learned court below should not have thrown

away the application as done by the impugned order, in view of the

law stated above.

10. Learned counsel for the appellant next submits that

there is no requirement of performance of any rituals for adoption,

save and except, actual giving and taking of the child. He further

submits that the registered deed of adoption dated 22.10.1975

clearly mentions that appellant was taken in adoption by

Shobhagayabati Devi, wife of Late Ganesh Poddar. The biological

father of the appellant Gyandeo Poddar has also signed on the

registered deed making statement that the adoption deed was

executed by him which is correct one.

11. Section 16 of the Act aforesaid provides for

presumption as to registered documents relating to adoption which

reads as follows:

“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 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.”

12. There is no other material to disprove the aforesaid

registered deed, save and except, the oral witnesses produced on

behalf of respondent no. 5 and 6 who stated that adoption never
Patna High Court MA No.192 of 2011 dt.14-03-2019
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took place. The law is well settled that oral evidence cannot

exclude the documentary evidence.

13. Learned counsel for the respondent no. 5 and 6

contends that Section 11(vi) of the Hindu Adoptions and

Maintenance Act, 1956 requires as mandate of law that actual

giving and taking in adoption by the parents or guardians

concerned must take place, besides, fulfillment of other conditions

mentioned in the said section. Learned counsel would submit that

the registered deed of adoption nowhere states that the child was

given in adoption. Only, the statement of adoptive mother is there

that she took the child in adoption.

14. In my view, mere technicality cannot be allowed to

come into the way of defeating the substantial justice. The

biological father has signed the registered deed of adoption and

has written in his pen that he signed on the adoption deed. That

much is sufficient to prove that he had given the child in adoption,

especially, in view of presumption of adoption on production of

registered deed of adoption. Besides the aforesaid, the natural

father of the appellant was examined before the learned court

below as A.W. 4 wherein he specifically stated that he had given

the appellant in adoption to Sobhagyawati Devi, wife of Late

Ganesh Poddar. The appellant was aged about 9 to 10 years at that
Patna High Court MA No.192 of 2011 dt.14-03-2019
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time. The biological father had other sons also. Thus, a third

person can not be allowed to challenge that actual giving and

taking did not take place when there is statement of the person

who gave the appellant in adoption and there is no denial at any

stage by the adoptive parents. Besides the aforesaid, the appellant

brought on the record the certificate issued by Bihar School

Examination Board on 29.07.1980 which shows that appellant

Shobhakant Kumar @ Poddar is son of Ganesh Poddar. The voter

identity card issued by the Election Commission of India in favour

of Shobhakant Poddar @ Shobhakant Singh also shows that he is

son of Ganesh Poddar. In the insurance policy taken by Ganesh

Poddar prior to 31.03.1997, the nominees are his wife and this

appellant. Thus, there was ample documentary evidence on the

record to show that the appellant was son of Late Ganesh Poddar

from the date of adoption mentioned in the registered deed of

adoption which is available on the record.

15. Hence, in my view, the learned court below has

committed error of record in holding that there is no date of

adoption. The law does not require any adoption ceremony or

presence of witnesses. Only requirement is actual giving and

taking and the best witness of giving has been examined before the

court below. Therefore, in my view, the impugned order suffers
Patna High Court MA No.192 of 2011 dt.14-03-2019
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from error of record and misreading of law. Hence, the same is set

aside and this appeal is allowed.

16. Let the Succession Certificate be issued in favour of

the appellant at once.

(Birendra Kumar, J)

Kundan/Rajan
AFR/NAFR A.F.R
CAV DATE N.A.
Uploading Date 15.03.2019
Transmission Date 15.03.2019

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