Jharkhand High Court
Amrit Kumar Nandi @ Nandy vs Krishna Ghosh on 25 October, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.252 of 2013
Amrit Kumar Nandi @ Nandy ...... Appellant
Versus
Krishna Ghosh ...... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant :Mr. A.K.Sahani, Advocate For the Respondent :Ms. Gauri Devi, Advocate
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16/Dated: 25/10/2018 Heard learned counsel for the appellant and learned counsel for the respondent.
The present appeal has been filed against the judgment dated 06.07.2013 passed in Succession Certificate Case No.07 of 2010.
Law has been put into motion by the appellant under Section 372 of the Indian Succession Act 1925 for declaring himself as adopted son of Jyotsna Nandi (deceased) for amount deposit in S.B.I. Madhupur and Life Insurance Company, Deoghar amounting to Rs.22,05,599.18/- (Twenty Two Lac Five Thousand Five Hundred Ninety Nine Rupees and Eighteen Paisa).
The case as set out by the applicant that he is son of Shekhar Prasad Ghosh (PW-1) and Krishna Ghosh (DW-1). He has been adopted on 07.03.1979 by Jyotsna Nandi, who is own sister of Krishna Ghosh. At the time of adoption, he was one year old in the year 1979 and the necessary religious custom including the "Dattaka Homan" had been performed.
It has been further stated that the said adoption has been finally written down and deed of declaration has been prepared. The said deed of declaration dated 21.11.2007 has been registered on the same date. There was a mistake in the said deed regarding year i.e. 1989, which has been corrected by the subsequent declaratory deed as 1979 in the deed of declaration dated 04.07.2009.
PW-2 and PW-4 are witnesses to the declaratory deed. The adopted mother, namely, Jyotsna Nandi died on 22.06.2009, while the succession petition has been filed on 14.05.2010.
-2-In support of his case, petitioner has produced five witnesses, declaratory deed and bank pass book. PW-1, who is natural father of the plaintiff has stated in his deposition that petitioner has been adopted by Jyotsna Nandi on 07.03.1979. The said act of adoption has been noted down in deed of declaration dated 21.11.2007 which has been registered on the same date. It has been corrected subsequently as there was an error in the year. At the time of adoption, the age of the petitioner was one year.
PW-2 and PW-4 is the witness to the deed of declaration. PW-3 is the father-in-law of the petitioner, who is neither witness to the adoption nor to the deed. PW-5 is the appellant himself, he cannot be witness as at the time of alleged adoption, he was aged about one year.
Exhibit-1 and 1/1 is the deed of declaration which contains the story of adoption.
Learned counsel for the appellant has relied upon Section 16 of the Hindu Adoption and Maintenance Act, 1956 which is quoted hereunder:
16. Presumption as to registered documents relating to adoption- Whenever any document registered under any law for the time being in force is produced before the Court purporting to record an adoption made and is 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.
From mere perusal of this section, it is evident that if adoption is done through deed, only then it has the presumptive value. Memorandum of adoption has no presumptive value, even though it is registered.
Admittedly in the present case, the adoption is not through any deed much less the registered deed. Deed of declaration has been registered after 28 years of adoption. The deed of declaration only contains the story of adoption and as such appellant cannot take the benefit of Section 16 of Hindu Adoption and Maintenance Act, 1956 as mentioned above.
-3-So far as documentary evidence regarding adoption is concerned, no documentary evidence has been produced like educational certificate, voter identity card or any document whatever may be.
Further, the title "Ghosh" has been retained and it has been changed only after 2009, when the deed of declaration was registered.
Non production of documentary evidence, which could suggest the name of guardian, has been withheld from the court.
Facts and evidence produced by the appellant before the court below has been properly appreciated and it has been held that the act of adoption does not stand proved and accordingly succession certificate demanded has been declined.
From the above discussion, it is evident that the oral evidence produced by the appellant is only with regard to the deed of declaration. The contents of deed of declaration has not been proved i.e. act of adoption.
Thus, there is no evidence either documentary or oral to prove the act of adoption of the petitioner by Jyotsna Nandi (mousi of the petitioner).
In view of the above discussion, this Court finds no merit in the present appeal. Accordingly the same is hereby dismissed.
(Rajesh Kumar, J.) Shahid/ A.F.R.