Gauhati High Court
Koijam Suraj Singh vs Yengkhem Ongbi Barni Devi And Ors. on 3 June, 2004
Equivalent citations: (2005)3GLR31, AIR 2005 (NOC) 307 (GAU), 1982 (2) SCC 111, 2006 (3) ALL LJ EE 391, 2006 (3) ALJ 391, 2005 A I H C 1510, (2005) 3 GAU LR 31, (2005) MATLR 531, (2005) 1 GAU LT 613, (2006) 1 CIVLJ 795
ORDER A.M. Saikia, J.
1. Heard Mr. K. Mohendra, learned counsel for the applicant and also heard Mr. A. Bimal, learned counsel for the respondent.
2. This application has been filed under Order 22, Rule 3, read with Rule 11, of the CPC seeking for substitution of the appellant Koijam Suraj Singh, as the legal representative of appellant No. 2 Yengkham Ninhol Promila Devi who died on 11.4.2003, being for adopted on.
3. According to the learned counsel for the applicant, Late Promila Devi adopted him as her adopted son on 5.10.1971 but having no knowledge of the legal consequence of the adoption, the said adoption was not registered as required under the law for which on 3.1.2000, before her death, a Deed of Adoption was executed by Smt. Koijam Ongbi Imbempishak Devi, the mother of the applicant in favour of the appellant No. 2 giving the applicant in adoption and the same was registered on 6.1.2000.
4. To bolster up his such contention a photo copy of the said deed of adoption has been enclosed as Annexure A/1 to this Misc. application.
5. The respondent contested such averments of the applicant as regards his so-called adoption by the appellant No. 2, by filing written objection.
6. Due to such controversy as to whether the applicant is the adopted son of the appellant No. 2 or not, this Court felt is appropriate to settle this issue by taking evidence by the trial Court and accordingly vide order dated 6.6.2003. this Court sent down the matter to the Court of the Civil Judge II (Sr. Division), Manipur East, to record evidence after hearing the parties in accordance with law with a direction to send back the report with evidence along with the connected papers to the High Court within 4 months.
7. Pursuant to such direction of this Court, the said learned Judge conducted inquiry as many as 6 witnesses were examined on the applicant's side when the respondents examined 3 witnesses. The learned Judge also went through the various documents submitted by the parties. But without giving any finding whatsoever on his inquiry, the learned Judge submitted his inquiry report along with the depositions of the witnesses and the relevant documents before this Court on 10.2.2004.
8. On close perusal of the materials available on record including the Deed of Adoption so enclosed to the Misc. Case, the original of which has also been produced before the Inquiry Officer, i.e., the learned Civil Judge and also on careful inspection of the inquiry report, this Court of the view that there is no need of remitting the matter back to the learned Civil Judge for recording his findings on the basis of evidence of the witnesses and the document made available on record, as claimed by the learned counsel of the rival parties inasmuch as the issue of adoption raised in the miscellaneous petition can be resolved by referring to and relying on the Deed of Adoption so annexed herewith itself and accordingly the learned counsel of the rival parties are allowed to advance their respective arguments.
9. Relying on the Deed of Adoption being the sole basis for making the claim by the applicant for his substitution as legal heir of appellant No. 2, Mr. Mahendra, learned counsel for the applicant has argued that the applicant was duly adopted on 5.10.1971 in accordance with Hindu Customs and such adoption has also been duly executed by registration of the Deed of Adoption on 6.1.2000. According to him though the actual adoption took place on 5.10.1971 by performance of rites and ritual permissible under the Hindu customs, such adoption could not be given legal effect by way of registration being necessary under the law as the appellant No. 2 has no knowledge about the legal requirement at the time of adoption in the year 1971 and subsequently having come to know about the legal effect of adoption this Deed of Adoption was executed and registered. His further contention is that since the Deed of Adoption has not been challenged by the respondents in any appropriate forum, the same is valid, operative and binding upon the respondents.
10. Challenging the initial adoption of the applicant by appellant No. 2 as reflected in the Deed of Adoption referred to above, Mr. Bimal, learned counsel appearing on behalf of the respondent has strenuously contended that the present adoption in question was not at all an adoption in the eye of law and since the instant adoption itself was illegal and void ab initio, there is no question of assailing the validity of the said Deed of Adoption as claimed by the learned counsel for the applicant. Referring to the relevant provisions of law relating to adoption laid down in Hindu Adoption Adoption and Maintenance Act, 1956 (for short the Act) and also Deed of (Annexure A/1 to the Misc. application), it is contended by Mr. Bimal that assuming but not admitting, the initial adoption took place on 5.10.1971 as mentioned by the appellant No. 2 in the Deed of Adoption, in the said deed the age difference of the appellant No. 1 as well as the adopted son, i.e., the applicant was not at least 21 years as prescribed under Section 11(4) of the Act which provides that if the adoption is by female and the person adopted is a male the adopting mother is at least 21 years older than the person to be adopted. Taking the Deed of Adoption on its face value, it goes to show that the deed was executed on 3.1.2000 wherein her age was shown as 51 years whereas the applicant was shown 32 years old. By an ordinary arithmetic the age difference between the appellant No. 2 and applicant as on 5.10.1971 comes to 19 years, which is apparently less than 21 years, being one of the condition precedents for valid adoption as stipulated under Section 11 of the Act. That apart, it is also submitted that this adoption was also invalid, illegal and void as per Sub-section (2) of Section 9 of the Act which provides that if the father is alive, he shall alone have the right to give the child in adoption but in the instant case on 5:10.1971 the father was very much alive as evident from the documents so submitted by the respondents before the Inquiry Officer which go to show that K. Shamungouba Singh, the father of the applicant, expired on 2.10.1979 for which applicant's mother on 4.10.1979 wrote to the Executive Engineer, Tengnoupel Division, P.W.D. Manipur requesting to arrange necessary payment before Saradh ceremony of her husband who was working as unqualified Section Officer in the said establishment and further his death on 2.10.1979 was reported to the Chief Engineer, P.W.D. by Executive Engineer of the Division concerned by his letter dated 9.10.1979. Despite this fact the applicant was shown to be given in adoption in the said Deed of Adoption only by his natural mother Smt. Koijam Ongbi Ibenopishak Devi and as such the adoption of the applicant has no leg to stand in the eye of law.
11. Upon hearing the learned counsel for the parties and also on close perusal of the relevant provisions of law as cited above as well as on meticulous scrutiny of the materials available on record including the Deed of Adoption annexed as Annexure A/1 in Misc. Application, it appears that both the appellant No. 2 and the applicant being the Hindu by religion were governed by the Act and the adoption in question was contrary to the provisions of law envisaged under the Act and accordingly, I find enough force in the submissions of the learned counsel for the respondents. A bare perusal of the Deed of Adoption makes it abundantly clear that at the time of adoption on 5.10.1971, the appellant No. 2 was aged about 22 years when the applicant was 3 years old and as such the appellant No. 2 was only 19 years older than the applicant. Thus, she was not at least 21 years older than the applicant in terms of Section 11(4) of the Act. It has also come on record that at the time of adoption of the applicant on 5.10.1971 late K. Shamungouba Singh, father of the applicant who was the competent person to give the applicant in adoption according to Section 9(2) of the Act, was very much alive and as such the mother had right to give applicant to the appellant No. 2 to be adopted by her. That being so this Court has no hesitation to hold that the applicant's adoption was illegal and void ab initio.
12. Since this adoption in question, as claimed by the applicant, has not been approved by this Court the applicant has no right to claim as legal representative of the appellant No. 2. Therefore, this petition cannot be entertained for substitution of the applicant as legal representative of the appellant No. 2.
13. Consequently, this Misc. case stands dismissed.