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,
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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?
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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
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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
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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
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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
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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
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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