Allahabad High Court
Mannan Rai vs Deputy Director Of Consolidation Balia ... on 5 January, 2000
Equivalent citations: 2000(2)AWC1012, 2000 ALL. L. J. 810, 2000 A I H C 2795, 2000 ALL CJ 1 521, (2000) 2 ALL WC 1012, (2000) REVDEC 200
JUDGMENT B. Dikshtt, J.
1. Petitioner Mannan Rai is an objector under Section 9 (2) of U. P. Consolidation of Holdings Act in respect of Khata Nos. 71 and 77 on which, in the basic years, names of Jagarnath, Shivji and Ram Lal opposite parties were recorded.
Admittedly the disputed land belonged to Ratan. Petitioner claimed that he is adopted son of Ratan and, therefore, entitled to succeed. The petitioner in support of his case filed a registered adoption deed dated 7.5.1957 executed by Ratan. He examined Jeera as witness in support of his case, who is attesting witness of the deed. He also filed a school leaving certificate showing Ratan to be his adoptive father and a first information report dated 28.6.1957 wherein Ratan has stated that petitioner is his adopted son. The objections filed by petitioner were rejected by Additional Consolidation Officer Sikanderpur, Ballla. by order dated 6.11.1973. The petitioner preferred two appeals as there were two objections in respect of two sets of plots. The Settlement Officer. Consolidation by order dated 18.12.1974 dismissed the objection in which, according to him. Ratan transferred during his life time the plots in favour of opposite parties Shivji and Jagarnath but allowed the objection in respect of other plots of Khata No. 71 to the extent of 1/3 in respect of which a gift was made by Ratan. The petitioner felt aggrieved in respect of land which was held to be transferred to opposite parties Shivji and Jagarnath by Ratan by gift and filed an appeal, while the appeal in respect of other set of plots which were held to be that of petitioner, on the basis of finding that petitioner was adopted son of Ratan, was filed by opposite parties. The Deputy Director of Consolidation after hearing the parties allowed the revision of opposite party Shivji Rai and Jagarnath and dismissed the revision of Mannan. Aggrieved by the order passed by Deputy Director of Consolidation allowing the revision by order dated 3.10.1975 the petitioner has preferred this petition.
2. The learned counsel for petitioner argued that the Deputy Director of Consolidation could not have gone into the questions of fact and reversed the findings recorded by Settlement Officer, Consolidation that the petitioner is not adopted son of Ratan. He further argued that the adoption deed filed by petitioner was a registered document and there was a presumption under Section 16 of Hindu Adoption and Maintenance Act (in short 'Act') that the adoption has been made in compliance with the provisions of said Act. As the adoption deed [which has not been filed but has been produced before the Court) did not contain the signature of natural father and mother of petitioner, therefore, he submitted that as the adoption deed was a registered document and it was also proved by an attesting witness Jeera, the presumption under Section 16 of the Hindu Adoption and Maintenance Act was also attracted even if the adoption deed was not signed by natural father and mother of petitioner. Therefore, the learned counsel for petitioner submitted that the onus to disprove the adoption was on opposite parties. He further argued that only civil court could go Into the validity of the deed and as the adoption deed was not void-ab-initio. therefore. Its validity could not be examined by consolidation authorities. He also relied upon the first Information report wherein Ratan stated that petitioner was his adopted son. The arguments advanced has been opposed by learned counsel for opposite parties.
3. The question which arise for consideration before this Court is : "Whether presumption under Section 16 of Hindu Adoption and Maintenance Act is to be drawn that adoption has been in compliance with the provisions of the said Act despite the fact that the adoption deed though registered, has not been signed by the person giving the child in adoption?
4. Section 5 of the Act lays down that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in Chapter II of the Act and any adoption made in contravention of said provision shall be void. Section 6 of the Act lays down conditions for an adoption to be valid. One of the necessary requisite for a valid adoption is the person giving In adoption must have capacity to do so. The next section.
which requires reference for the purpose of determining controversy is Section 9, which is about the person who are capable to give in adoption. It provides that no person except the father or mother or the guardian of a child shall have capacity to give in adoption. Where an adoption is under challenge, which deviates normal rule of succession and deprives natural heirs to succeed, the burden of proof is on the person who claims that he has been adopted. It is he who has to establish all the necessary requisites laid down in Section 6 of the Act has been complied.
5. Section 16 of the Act is as follows :
"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 any 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 had been made in compliance with the provisions of this Act unless and until It is disproved."
It is a rule of evidence where under the conditions laid down therein, the onus of proof does not remain on the person claiming to be adopted. It stands shifted on person who challenges the adoption. As the normal rule of onus of proof stands deviated under the conditions laid down under Section 16, it is to be Strictly construed.
6. It is not In dispute that the adoption has not been signed by natural guardian. One of the necessary Ingredient under Section 16 is that the adoption deed should be signed by the person giving in adoption. As the adoption deed has not been signed by the person giving in adoption. Section 16 is not attracted for presuming that the adoption of petitioner has been made In compliance with provisions of the Act. As the petitioner has failed to prove adoption and relied on presumption under Section 16 of the Act, which Is not attracted.
7. The learned counsel for petitioner has disputed the jurisdiction of consolidation authority by contending that the adoption deed could be declared void only by a civil court. The contention has no force. It Is well within the scope of power of consolidation authorities to determine rights of parties in a case where document is void (See Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451. As the adoption deed is void document, as held above, the consolidation authorities did have the power to determine the rights of parties.
8. So far scope of power of revlslonal authority Is concerned, as the finding in favour of petitioner was recorded taking into consideration the adoption deed also, which is void, as held above, the Deputy Director of Consolidation was well within the scope of his power in examining the correctness of finding after excluding the adoption deed in question.
9. For aforesaid reasons, the writ petition falls and is dismissed.