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Judgment
Heard Mr. GN Sahewalla, learned Senior Counsel, assisted by Ms. B. Sharma, learned counsel, appearing for the appellants/ defendants. Also
heard Mr. P. Khatoniar, learned Senior Counsel, assisted by Mr. G. Khandelia, learned counsel, appearing for the sole respondent/ plaintiff.
The present appellants are the defendants in Title Suit No. 15/2008 in the court of the learned Munsiff No. 1 at Jorhat filed by the plaintiff/
respondent. The suit was for declaration, eviction and recovery of khas possession against the present defendants/ appellants with respect to the
suit land mentioned in the plaint. The plaintiff/ respondent is the adopted son of late Meghraj Modi and accepted by the society with the status of
adopted son and the age of the plaintiff/ respondent at the time of adoption on 2.9.1971 is evident from Certificate No. 37569 dated 23.7.1975
(Ext. 1) issued by the Secretary, Board of Secondary Education, Assam certifying his age as 18 years 2 two months on 1.3.1975. Being the
adopted son he inherited land measuring 10 Bighas 3 Kathas 5 Lechas on the death of Meghraj Modi in the year 1982 and maintained his
possession thereon. In addition to that he also inherited the land measuring 1 Katha 5 Lechas from the deceased wife of Meghraj Modi as her
adopted son.
The defendants/ appellants are the natural sons of late Sundarmal Modi. Late Meghraj Modi constructed CI sheet and asbestos houses with
brick wall over the land measuring 1.5 Kathas pertaining to Dag No. 1422 of Periodic Patta No. 169. After filling up the same in the year 1978 he
started Flour Mill thereon. He also filled up the land covered by Dag No. 1489 and constructed CI Sheet roofing Chali with bamboo fencing
measuring 12 feet by 20 feet for installation of the Mill but due to ill health Meghraj Modi could not run his Mill during his life time. The defendant/
appellant No. 4 was a licensee in the year 1982 for running Rice mill and wanted to set up mill in the premises of late Meghraj Modi urgently which
was allowed by late Meghraj Modi.
After the death of late Meghraj Modi, the plaintiff/respondent started filling up the land of Dag No. 1489 by earth. Similarly the land covered by
Dag No. 1422 was also filled up partly. He decided to run one Stone Crusher Machine in the part of the land covered under Dag No. 1442 and
with that end in view, the plaintiff/ respondent filled up land measuring 2 kathas situated between the suit premises during the period of 2002-2004.
The Stone Crusher Machine was purchased and the defendant/ appellant Nos. 1 to 3 obstructed the installation of the said Stone Crusher Machine
and the plaintiff/ respondent had to file proceeding under Section 107 of the Cr.P.C. alongwith the suit for the reliefs mentioned hereinabove. The
said land is measuring 1.5 Kathas.
The defendant/ appellant Nos. 1 to 4 contested the suit by filing joint written statement. Admitting the fact that the plaintiff/ respondent is the
adopted son of Meghraj Modi and the defendant appellants are the natural sons of Sundarmal Modi as such the Hindu Adoption Maintenance
Act, 1956 (herein after referred to the Act, 1956) is applicable for adoption. It is also admitted that the plaintiff/ respondent was adopted by
Meghraj Modi vide registered deed of adoption bearing No. 541, dated 2.9.1971 (Ext. 2). However, the so called adoption of the plaintiff/
respondent by late Meghraj Modi is not valid in the eye of law at all on the ground that Meghraj Modi was the paternal uncle of the respondent
and in the deed of adoption it was clearly mentioned that the plaintiff/ respondent is 17 years of age at the time of adoption. The adoption of the
plaintiff/ respondent is void ab-initio and the plaintiff/ respondent was not endowed with the status of adopted son of Meghraj Modi and the
plaintiff/ respondent is not entitled to inherit the properties of late Meghraj Modi including the suit property. It was also denied with respect to the
construction of the CI sheets and asbestos brick wall by Meghraj Modi in the year 1978 over the land measuring 1.5 Kathas. It was further
pleaded that the defendant/ appellant No. 4 started his Rice Mill and Flour Mill over the land covered by Dag Nos. 1489/1422 as allowed by
Meghraj Modi. The remaining 8 Bighas of land was cultivated by Sundarmal Modi and the said land was under the possession of the defendants/
appellants. Finally contended that the suit of the plaintiff/ respondent is not maintainable, the plaintiff/ respondent has no right title and ownership
over the suit land and the suit is liable to be dismissed.
On the basis of the pleadings, following issues were framed:-
(1) Whether there is a cause of action for the suit?
(2) Whether the suit is maintainable?
(3) Whether adoption of the plaintiff by Meghraj Modi is valid?
(4) Whether the plaintiff has right, title and interest over the suit property?
(5) Whether the defendants are permissive occupiers under the plaintiff in respect of suit premises and liable for eviction from the suit premises?
(6) Whether the plaintiff is entitled to a decree as prayed for?
(7) To what other relief/ reliefs parties are entitled?
The plaintiff/ respondent examined 6 numbers of witnesses including himself and exhibited documents in support of his claim. On the other hand,
the defendants/ appellants failed to adduce evidence to prove their stand. The learned trial court decreed the suit. Being aggrieved, the Title Appeal
No. 2/2011 was preferred by the defendants/ appellants in the court of the learned Civil Judge at Jorhat, which was dismissed, vide judgment and
decree dated 12.12.2012. Thereafter, the defendants/ appellants preferred this second appeal which was admitted on 8.4.2013 on the following
substantial questions of law:-
1) Whether the learned Courts below erred in accepting Exhibit-1 certificate for the purpose of the age of the adopted boy, which is contrary to
the declaration made by the father in registered adoption deed and as such respondent/ plaintiff failed to discharge the burden regarding valid
adoption?
2) Whether the learned Courts below acted against the established law in presuming consent of wife because on mere presence when consent as
provided in Section 7 of the Hindu Adoption and Maintenance Act, 1956, must be in writing or reflected by an affirmative act voluntarily/willingly
done by her?
Later on another substantial question of law was formulated on 17.3.2016, which is reproduced below:-
3) Whether the concurrent findings of fact recorded by the learned Court below as regard issue Nos. 3 and 4 are perverse to the evidence
available on record?
Mr. Sahewalla, learned Senior Counsel for appellants/ defendants submits that the adoption of the plaintiff/ respondent is not as per the law.
Referring Section 10 of the Hindu Adoption and Maintenance Act, 1956, Mr. Sahewalla submits that the plaintiff/ respondent, as apparent from
the Ext. 2, registered Deed of adoption bearing No. 541, dated 2.9.1971, goes to show that the plaintiff/ respondent was aged about 17 years on
the date of adoption. On other hand the law stipulates that the person who is adopted shall not complete the age of 15 years unless there is a
custom or usages applicable to the parties which permits the person to have completed the age of 15 years being taken in adoption. The said Ext.
2 shows that the adopted father Meghraj Modi lost his wife just a year ago of the said adoption dated 2.9.1971. However, Section 9 of the Act of
1956 stipulates that no person except the father or the mother or the guardian of a child shall have the capacity to give the child in adoption. Sub-
section 2 of Section 9 stipulates that subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a
son or daughter in adoption provided that such right shall not be exercised by either of them save with the consent of the other unless one of them
has completely and finally renounced the world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be unsound
mind. Subsection 4 stipulates that where both the father and mother are dead or have completely and finally renounced the world or have
abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not
known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian
himself.
In the present case in hand, Geeta Devi is the mother of the present plaintiff/ respondent and Ext. 2 is totally silent that she had given the consent
as required under Section (2) of Section 9 of the Act, 1956. The age mentioned in the Ext. 2 was stated by none other than the natural father i.e.
Sundarmal Modi of the plaintiff/ respondent and that too the age of the adopted son was 17 years on the date of adoption. The said piece of
evidence cannot be disowned by the plaintiff/ respondent by producing Ext. 1, the High School Leaving Certificate issued by the Board of
Secondary Education, Assam. Though the plaintiff/ respondent tried to prove the age mentioned in Ext. 1 certificate, but the PW-3 Bhaben Saikia,
the Principal, MRSHS School failed to prove the admission register on the basis of which the age has been mentioned in Ext. 1. Under such
circumstances, the findings of the courts below are perverse. It is also submitted that when the fact of adoption is tried to prove by the plaintiff/
respondent on the basis of Ext. 2, no oral evidence can be taken into consideration in view of Section 91 and 92 of the Indian Evidence Act,
1872. The consent as required under Section 9 of the natural mother, Geeta Devi of the plaintiff/ respondent have to be established on the face of
the adoption deed, Ext. 2. Mere oral submission beyond written consent cannot change the character of the transaction. There being no inspiring
evidence to the consent given by the natural mother of the plaintiff/ respondent, the adoption is hit under Section 9 of the Act of 1956.
The learned court below totally on wrong assumption and presumption had held the adoption to be proved within the required parameters of
the Act of 1956. In support of his submission, Mr. Sahewalla, learned senior counsel appearing for the appellants/ defendants has relied on the
following cases:-
1988 (Supp) SCC 604 (Birad Mal Singhvi Vs. Anand Purohit).
(2010) 3 SCC 757 (Jabar Singh Vs. Dinesh and another).
(2010) 3 SCC 765 (Securities and Exchange Board of India).
(2013) 2 GLR 94 ( Kakchingtabam Ibomcha Sharma Vs. Helrangkhongjam Noyon Singh and Ors).
(2013) 2 GLR 113 (Trinayan Ch. Dutta Vs. State of Assam & Ors.)
2004 (1) GLT 298 (Upedra Kumar Majumder & Ors Vs. Tapan Mazumdar & Ors.)
(2011) 2 SCC 298 (Gisalal Vs. Dhapubal (Dead) By LRS and Ors.)
Mr. Khatoniar, learned Senior Counsel, submits that the substantial questions of law so formulated cannot be accepted to be questions of law
inasmuch as the same relates to findings of fact which are concurrent in nature and this court under Section 100 of the CPC cannot enter into the
concurrent finding of the facts until and unless it can be shown that such findings of facts arrived by the courts below are perverse. It is also
submitted that both the courts below scrutinised two pieces of evidence, one in the form of Ext. 2 wherein the age of plaintiff/ respondent has been
mentioned as 17 years on the date of adoption and Ext. 1 the certificate issued by the Board of the Secondary Education, Assam and considering
the normal practice and the usage of the certificate (Ext. 1) for day to day purpose in order to support the date of birth of a person, the courts
below accepted the age of the plaintiff/ respondent as per Ext. 1 which is not disputed by the defendants/ appellants.
Mr. Khatoniar accordingly submits that this second appeal has no merit at all as the same is devoid of any substantial questions of law to be
decided by this court and in support of his submission, he relied upon the following cases.
(2005) 10 SCC 169 (State of Karnataka vs. Kamalabai)
(2005) 2 SCC 500 (Govindaraju Vs. Mariamman)
(2011) 15 SCC 417 (Ganeshi (D) through LRs & Ors Vs. Ashok & Ors.)
(2007) 5 SCC 669 (P. Chandrashekharan & Others Vs. S. Kanarajan & Others).
Considered the submissions of the learned counsels. The learned first appellate court considered the evidence of the witnesses on behalf of the
plaintiff/respondent. It took note of Ext. 2, the Deed of adoption on the basis of which the plaintiff/ respondent claimed himself to be adopted by
Meghraj Modi inasmuch as he exhibited the same. The said Deed was executed by both Meghraj Modi and Sundarmal Modi. PW 2 Sankarlal
Sarma supported the fact of adoption of the plaintiff/ respondent while he was about 14 years of age, who further deposed that the required
Homa"" was performed in the adoption ceremony where late Sundarmal Modi and his wife (natural parents of the plaintiff/ respondent) alongwith
Meghraj Modi the adopted father were present. Relying Ext. 3, the certified copy of the Jamabandi of Periodic Patta Nos. 169 and 206, the
learned first appellate court considered that the name of the plaintiff/ respondent was recorded as the heir of Meghraj Modi and further,
considering the Ext. 3 and deposition of PW 2 held that the name of the father of the plaintiff/ respondent was shown as Meghraj Modi rightly. On
1.3.1975 his age was shown to have been recorded as 18 years 2 months as per the said Ext. No. 1. The learned first appellate court also
considered the deposition of PW 3 the Headmaster, MRSHS School that he could not produce his school admission register due to non-tracing
out of the same and further it was held that PW 3 could not produce the age certificate of the plaintiff/ respondent given at the time of admission in
school and held that as there is no evidence on record of denial of Ext. 1, the certificate issued by the Board wherein the age of the plaintiff
respondent has been shown as 18 years 2 months on 1.3.1975 to be the correct one.
The learned first appellate court also held that the challenge of the adoption on the question of age recorded in the adoption Deed and that
there was no consent of the natural mother of the plaintiff/ respondent in giving adoption to Meghraj Modi though taken, however the defendants/
appellants neither came to the witness box nor adduced any evidence to that effect as such the learned first appellate court drew adverse inference
against the defendants/ appellants. Further by upholding the findings of the learned trial court, the learned first appellate court held that the age
shown in Ext. 2 is not enough to cause nullity of the said Ext. 2 if actually at the time of adoption the person who was given adoption is less than 15
years of old purportedly holding that the age recorded in Ext. 1 to be correct.
Both the courts below taking into consideration the Ext. 1 had calculated the age of the plaintiff/ respondent and held that the plaintiff/
respondent was less than 15 years of age at the time of adoption. Drawing attention and presumption under Section 16 of the Act of 1956, the
courts below held the adoption to be valid adoption as the same was signed by the person giving and the person taking the child in adoption.
With respect to the requisite consent of the natural mother of the plaintiff/ respondent, the court below came to the finding that there was
consent by the natural father and mother of the plaintiff/ respondent at the time of adoption by Meghraj Modi. However, the court below presumed
such consent on the basis of the deposition of P.W. 2 Sankarlal Sarma that at the time of adoption ceremony he was present and other persons
recognized the respondent/ plaintiff as the adopted son of Meghraj Modi.
Now coming to the substantial question of law, so formulated let me examine as to the nature and discharge of burden by the plaintiff/
respondent upon whom the same lies. In Madhusudan Das Vs. Smti Narayani Bai & Ors, reported in AIR 1983 SC 114, the Hon''ble Apex court
held as follows:
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. Evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and
probable as to give no occasion for doubting its truth.
Section 10 of the Act of 1956 specifically stipulates that a person adopted shall not complete the age of 15 years unless there is a custom or
usage applicable to the parties which permits the person/ persons who have completed the age of 15 years being taken in adoption. There is no
mention of any custom or usages applicable to the parties to the suit. The learned courts below held that the age of the plaintiff/ respondent though
recorded in the said Ext. 2 as 17 years but for the same, the adoption is invalid cannot be accepted as the defendants/ appellants failed to adduce
evidence. There is no point to disbelieve the Ext. 1, the certificate and that too on the face of the evidence of PW 3, the Principal of the School
who supported the fact that the plaintiff/ respondent passed HSLC Examination from his School. By the said finding, the learned courts below
failed to consider that the burden could not be discharged undertaken by the plaintiff/ respondent to show that he is the adopted son of late
Meghraj Modi and his adoption was valid.
Admittedly, the defendants/ appellants are the natural brothers of the plaintiff/ respondent they being the sons of Sundarmal Modi and the
adoptive father of the plaintiff/ respondent, Meghraj Modi is the brother of Sundarmal Modi. If the plaintiff/ respondent failed to prove the said
adoption, the properties left by Meghraj Modi and his wife on their death, would devolve upon the defendants/ appellants and the plaintiff/
respondent in equal shares inasmuch as from Ext. 2, the adoption Deed it is very much apparent that Meghraj Modi had no children out of the
wedlock with his deceased wife. In order to block such succession of the immovable property of the couple, Meghraj Modi and his wife, the
plaintiff/ respondent pleaded that he is the adopted son of Meghraj Modi. As per the pleadings made in the plaint there is no mention of the said
Ext. 2, the adoption Deed wherein the age of the plaintiff/ respondent is mentioned as 17 years on the date of adoption i.e. on 2.9.1971. It is the
only pleading of the plaintiff/ respondent that he was aged about 18 years 2 months as on 1.3.1975 as apparent from the certificate i.e. Ext. 1
suppressing the recording of the age as mentioned in Ext. 2.
The defendants/ appellants in the written statement disputed the validity of the adoption because of the age mentioned therein the Ext. 2 and
also for the absence of the consent of the natural mother. The plaintiff/ respondent produced Ext. 2, the Deed of adoption. However, there is no
explanation in the pleadings about the incorrect recording of so far the age in Ext. 2 nor about the variation of the same with the one mentioned in
the certificate Ext. 1. The said Deed Ext. 2 is relied by the plaintiff/ respondent in order to prove that the adoption was a valid one and to get the
benefit of the presumption under Section 16 of the Act of 1956. The said Deed of adoption i.e. the Ext. 2 proves the fact of giving and taking of
the plaintiff/ respondent by the natural father to the adopted father. The Ext. 2 was registered on 2.9.1971. The Ext. 1, certificate had its existence
on 23.7.1995 as apparent from the date mentioned in the said Ext. 1 itself. On the date of adoption vide Ext. 2 as the age mentioned therein of the
plaintiff/ respondent being shown as 17 years, the fact of adoption does not comply with the provisions stipulated under Section 10 of the Act. The
fact of adoption as claimed by the plaintiff/ respondent on 2.9.1971 on the strength of Ext. 2 is invalid. There is no mention with respect to ""Homa
which the plaintiff/ respondent tried to bring by way of the evidence of PW 2, Sankarlal Sarma, though there is no such pleading with regard to the
said fact of religious ceremony and the said piece of evidence of PW 2 cannot at all be considered.
The plaintiff/ respondent tried to establish that on the date of adoption i.e. execution of the Ext. 2 he was below 15 years of age. If that be so,
he is supposed to adduce evidence supporting the fact of his age prior to 2.9.1971. The deposition of PW 3, the Principal of the School in which
the plaintiff/ respondent studied till completion of his High School Leaving Certificate Examination in the year 1975 and the manner of appreciation
of such deposition by the courts below that he could not produce the school admission register due to non tracing out of the same is not at all
inspiring. The evidence that he could not find the age certificate of the plaintiff/ respondent given at the time of admission in school, is a vital piece
of destructive evidence for the plaintiff/ respondent inasmuch as there are two different dates of birth of the same person on record. Merely holding
that as there is no evidence to deny Ext. 1 so the age recorded in Ext. 1 could be considered is not at all proper appreciation of evidence by the
courts below. Such standard of prove cannot be accepted in view of the ratio in Madhusudan Das Vs. Smti Narayani Bai & Ors (Supra) inasmuch
as in the case in hand the plaintiff/ respondent seeks to displace the natural succession of the defendants/ appellants over the property of late
Meghraj Modi and his wife is concerned.
In (1988) Supp. SCC 604 (Birad Mal Singhvi Vs. Anand Purohit) (Supra), the Hon''ble Apex Court observed that the entries regarding dates
of birth contained in the Scholar''s register and the secondary school examination have no probative value as no person on whose information the
dates of birth of the aforesaid candidates were mentioned in the school record was examined. Further it was held that in absence of the connecting
evidence the document produced by the respondent to prove the age have no evidentiary value. The aforesaid observation was in a case wherein
nomination papers under Section 33 (5) of the Representation of People''s Act, 1951 was involved having bearing on the age of the candidates
and the nature of proof as held therein by the Hon''ble Supreme Court is mandatory. Similar is the nature of proof of age wherein Section 10 of the
Act of 1956 prescribes the age of a person capable to be adopted which is mandatory in nature. The plaintiff/ respondent failed to show that on
the basis of the original entry made in the Admission Register of the School his age was calculated and found to be 18 years 2 months as recorded
in Ext. 1 as on 1.3.1975.
The submission of Mr. Khataniar that the age of the plaintiff/ respondent is to be accepted as recorded in Ext. 1, the certificate which is the
general practice for acceptance of age of a person, cannot be accepted. In order to come to a presumption that the age of 17 years mentioned in
Ext. 2 was wrong, there must be some relevant fact which has been proved within the parameters of the Indian Evidence Act and only on the basis
of the said proved fact the presumption could be drawn that the age entered in Ext. 2, adoption Deed is wrong. PW 2, in his cross-examination
specifically deposed that he cannot say the age of the plaintiff/ respondent as on the date of his cross-examination though in chief he deposed that
the plaintiff/ respondent was aged about 14 years on the date of religious ceremony which cannot at all be believed.
The reliance of (2005) 2 SCC 500 (Govindaraju Vs. Mariamman) (Supra) by Mr. Khatoniar to the effect that the facts recorded by both the
courts below are concurrent and this court as the second appellate court under Section 100 of CPC cannot enter into the findings of the fact until
and unless the same are arrived perversely that is based on misreading of evidence or based on no evidence cannot be accepted as I am of the
view that the courts below i.e. the learned first appellate court had concurred with the findings of the learned trial court but the same is based on
misreading of evidence and also based on no evidence at all inasmuch as the age of the plaintiff/ respondent prior to 1971 has not been established.
Accordingly, both the courts below erred in accepting the age as per Ext. 1, the certificate, on the face of the declaration made by the natural
father of the plaintiff/ respondent in the registered Deed of adoption i.e. the Ext. 2 thereby answering substantial question of law No. 1 in the
affirmative. So far the substantial question of law No. 2 is concerned, on perusal of the Ext. 2, the deed of adoption, it is apparent that the wife of
the adopted father of the plaintiff/ respondent died prior to the adoption and as such the same has no substantial bearing in the decision of the
appeal. Coming to the third Substantial question of law, the findings arrived at by the first appellate court, in Issue No. 3 and Issue No. 4 are
perverse inasmuch as the adoption of the plaintiff/ respondent is found to be invalid and as such he is not entitled to the ownership of the suit
property on the strength of the invalid adoption.
In view of the same, this second appeal is allowed thereby setting aside the judgment and decree passed by the first appellate court resulting
dismissal of the suit. Prepare a decree accordingly.
Send back the LCR. No costs.