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Uma Shankar vs D.D.C. on 3 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 7

Case :- CONSOLIDATION No. – 3319 of 1985

Petitioner :- Uma Shankar

Respondent :- D.D.C.

Counsel for Petitioner :- H.S. Sahai,Arvind Singh Chauhan,R.R.Upadhyay,Sampurnanand Shukla,U S Sahai

Counsel for Respondent :- M.A. Khan,K.N. Tewari,Mohd. Arif Khan,Mohd.Aslam Khan,Mohiuddin Khan,S.L. Verma

Hon’ble Rajan Roy,J.

(C.M.A. No.83906/19- Delay; 83907/19- Recall.)

This is an application for recall of order 14.05.2019 alongwith an application for condonation of delay.

Heard. Cause shown for the delay in filing application for recall of order as also for recall of order is sufficient. The applications are allowed. Delay is condoned. Order dated 14.05.2019 is recalled. Writ petition is restored to its original number.

Parties’ counsel agree to argue out the matter today itself, therefore, the matter is being heard today.

The dispute herein pertains to Khata Nos.44 and 105 situated in Village Semra Khurd (Hasnapur), Post Office Naseerpur, Pargana Tehsil Biswa, District Sitapur. The petitioner claims to have been adopted by Jugal Kishore, the erstwhile sole tenure holder of Khata No.44 who also had a share in Khata No.105. This claim of the petitioner is based on an alleged adoption-deed which was registered on 12.12.1959. After onset of consolidation operations objections were filed by Smt. Ballo, Jai Kumar and the Gaon Sabha, as also by the petitioner. The petitioner’s objection was in respect of Khata No.105 wherein he claimed that Jugal Kishore had sole tenancy rights and consequent to the adoption-deed it is he who was entitled to such rights. The other persons filed objections in respect of Khata No. 44 claiming that Jugal Kishore never adopted the petitioner and the petitioner had no right as Jugal Kishore had died issueless. The Consolidation Officer vide his judgment dated 30.1.1974 ruled in favour of the petitioner based on the registered adoption-deed dated 12.12.1959 and other documents. The matter went up in appeal, revision and thereafter before this Court in Writ Proceedings and was ultimately remanded back to the Settlement Officer, Consolidation (S.O.C.) for reconsideration afresh.

After remand the S.O.C. considered the matter and found that the alleged registered adoption-deed bore only the signature of Jugal Kishore who was alleged to have taken the petitioner in adoption, but it did not bear the signature of the natural father or mother of the petitioner who alone were competent to give him in adoption in terms of the Hindu Adoption and Maintenance Act 1956 (hereinafter referred as ‘Act 1956’), as such the S.O.C. found that the presumption contained in section 16 of the Act 1956 was not attracted, the Deed itself being void. Accordingly he rejected the claim of the petitioner and set aside the order of the Consolidation Officer. When the matter went up before the Deputy Director of Consolidation (D.D.C.) under section 48 of the Act 1953, he also opined that in absence of signature of the natural father/mother of the petitioner on the adoption-deed the ingredients of adoption under the Act 1956 were not satisfied.

Contention of the learned counsel for the petitioner before this Court was that registration of an adoption-deed became compulsory in the State of U.P. with effect from January 1977 by virtue of State Amendment in the Act 1956 and prior to it there was no requirement of registration, however, on being asked as to whether the adoption-deed which was adduced in evidence by the petitioner himself and which was alleged to have been registered on 12.12.1959 bore the signature of the petitioner’s natural father/mother who alone were competent to give him in adoption, he fairly submitted that it did not bear their signature. In fact the Court finds that a copy of the adoption-deed has not even been filed before this Court.

Learned counsel for the petitioner next submitted that at that time there were several such Deeds which did not bear the signature of the natural father or mother, yet they were registered, however, on being asked to show the legal position as to whether any adoption-deed which was reduced in writing could be treated as valid in absence of signature of the natural father or mother who alone were competent to give the child in adoption and whether such a Deed could be got registered, learned counsel could not show any such provision of law or any such declaration of law by the Court.

The Court also asked the learned counsel for the petitioner as to whether any other evidence was led before the Courts below to establish the factum of adoption in terms of requirements of the Act 1956, especially the act of giving and taking of the child in adoption, learned counsel for the petitioner invited attention of the Court to an alleged affidavit of Baldeo, father of Jai Kumar opposite party no.3 which is said to have been filed in proceedings under section 145 Cr.P.C. wherein it has been said that the petitioner was validly adopted by Jugal Kishore, however, on a perusal of the said affidavit the Court does not find any such recital by Baldev Prasad that he was present at the time of adoption ceremony and had seen the petitioner being given by his natural father or mother in adoption and being taken by Jugal Kishore in adoption nor has he stated about any other ingredient having taken place during such ceremony. Affidavit in fact refers to the Deed dated 12.12.1959 which as stated hereinabove is not valid. Moreover the Court finds that Baldeo Prasad did not appear in proceedings under the U.P. Consolidation of Holdings Act 1953 and there is nothing on record to show that in these proceedings he appeared and stated in favour of the petitioner’s adoption in keeping with law contained in the Act 1956 and that he was allowed to be crossed-examined by the private opposite parties, therefore, this affidavit is of no relevance/value.

If as stated by learned counsel for the petitioner that Baldev Prasad had already died prior to onset of consolidation operations is accepted, even then, this does not help the petitioner in any manner as the fact of the matter is that he could not appear in the consolidation operation nor depose in favour of the petitioner. Proceedings under section 145 Cr.P.C. do not conclusively decide validity of the adoption or title in view of the very nature of such proceedings.

Learned counsel for the petitioner then invited attention of the Court to an order passed by the concerned authority under section 229-B by which the suit of the private opposite parties for declaration of their title in respect of the land in question was dismissed for want of prosecution, to contend that, no proceedings for recall of the said order were initiated, however, the Court finds that the said suit was filed after the death of Jugal Kishore i.e. it was filed, as informed by the learned counsel for the petitioner, on 23.4.1969, and was dismissed for want of prosecution on 13.11.1969, therefore, this dismissal did not come in the way of opposite parties in raising their claim to rights and interests in the land in dispute in the consolidation operations which commenced sometime in 1971-72.

There is nothing on record to show as to whether the natural father or mother of the petitioner were alive after the onset of consolidation operations or not. If they were alive, why they were not produced in evidence before the Courts below. As regards other adoption-deeds copies of which have been filed by the petitioner alongwith a supplementary affidavit before this Court, assuming that these Deeds were filed before the Courts below, merely because that these Deeds were also registered by the Sub Registrar, even though they did not bear the signature of the parent of the adoptee child giving him in adoption, does not make the petitioner’s adoption-deed valid nor any such presumption as is contained in section 16 of the Act 1956 can be raised in the absence of such signatures.

There is no evidence on record to establish the factum of adoption. The recital contained in adoption-deed does not raise any presumption of adoption in terms of section 15 of the Act 1956 in the absence of signature of the natural father or mother of the petitioner as was mandatorily required in terms of section 16 itself. In the absence of any such proof, whether oral or documentary, to establish adoption the Courts below i.e. the Court of the S.O.C. and the D.D.C. cannot be faulted for having rejected the claim of the petitioner. Whatever other documentary proofs such as ration card etc. have been filed relate to period subsequent to 1968 and it is not relevant for establishing the factum of adoption. Jugal Kishore is said to have died sometimes in 1968. There is no evidence on record which may pertain to the period prior to 1968 which could establish adoption of the petitioner by Jugal Kishore in terms of the Act 1956. Reference may be made in this regard to a decision reported in AIR 1977 Orissa 69, Md. Aftabuddin Khan ors. v. Smt. Chandan Bbilasini anr., wherein the meaning, purport and import of section 16 of the Act 1956, the requirement of signature on the Adoption Deed have been considered by the Orissa High Court, as also the decision of the Bombay High Court reported in AIR 1981 Bom. 240, Krishnabai Shivram Patil v. Ananda Shivram Patil. In this view of the matter there is no valid ground for interference by this Court under Article 226 of the Constitution of India. The writ petition lacks merit and is hereby dismissed.

(Rajan Roy, J.)

Order Date :- 3.1.2020

A.Nigam

 

 

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