1. This second appeal under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 19.12.2013 passed in Civil Appeal No.198 of 2013 (Shiv Darshan Yadav Vs. Adhishashi Abhiyanta) and judgment and decree dated 31.07.2013 passed by the trial court in Original Suit No.842 of 2011 (Adhishashi Abhiyanta Vs. Shiv Darshan Yadav).
2. The brief facts of the case for adjudication of the instant second appeal are that the appellant Shiv Darshan Yadav was appointed under dying in harness as junior clerk in place of his alleged adoptive father namely Kanhaiya Lal on the basis of an alleged adoption deed dated 11.08.1995. A complaint was made by one Mukesh Kumar Srivastava, a social worker on 27.05.2011 to the District Magistrate, Faizabad alleging that the appellant has obtained the service on the basis of a fraudulent adoption deed and requested for a magisterial enquiry. In pursuance thereof an enquiry was conducted by the City Magistrate, Faizabad. On the basis of the Enquiry Report, submitted after recording statement of the appellant, the District Magistrate, Faizabad written letters dated 20.06.2011 and 21.06.2011 to the officers of the Electricity Department to take action against the appellant. In pursuance thereof the appellant was suspended vide order dated 30.12.2011 and the Original Suit No.842 of 2011 was filed by the respondent before the Additional Civil Judge, Junior Division-IV, Faizabad for cancellation of Adoption Deed dated 11.08.1995.
3. The appellant challenged the suspension order before this Court in Writ Petition No.952 (S/S) of 2012. The writ petition was dismissed on 02.02.2012 with direction to the opposite parties to conclude the enquiry within a period of four months. After submission of Enquiry Report, the appellant was reinstated vide order dated 10.04.2012 subject to judgment in Original Suit No.842 of 2011 pending in the Court of Civil Judge, (Jr. Division) Sadar, Faizabad. The suit was decreed after evidence and opportunity of hearing by means of the judgment and decree dated 31.07.2013. Being aggrieved the civil appeal No.198 of 2013 was filed by the appellant which was also dismissed vide judgment and decree dated 19.12.2013. Hence, the instant second appeal.
4. The instant second appeal was admitted on the following substantial questions of law:-
"(1) Whether the suit filed by the respondent was not barred by limitation as in view of the specific admission of PW-1 that on the basis of the registered deed of adoption, the appellant was appointed on compassionate ground under Dying in Harness Rules after the death of Kanhaiya Lal Yadav and the learned courts below were justified in law in holding that the suit was within limitation, while decreeing the suit?
(2) Whether the presumption available to a registered deed of adoption under Section-16 of the Hindu Adoption & Maintenance Act, 1956 coupled with the provisions of section 47 of the registration Act could be discarded merely on surmises and conjectures, ignoring the admissions made by PW-1?
(3) Whether the appellant, who after execution of the registered deed of adoption had completely severed relations with his natural father and mother and on the death of adoptive father, Kanhaiya Lal Yadav, his name was recorded in revenue records being an adopted son. The learned courts below were justified in law in cancelling the registered deed of adoption merely on technicalities, ignoring the law propounded by the apex to the effect that there is a presumption about the registered deed of adoption, unless proved otherwise by leading cogent evidence on record?
(4) Whether in view of of the well settled proposition of law that the plaintiff has to prove his case by leading positive evidence on record and could not derive any benefit from the weakness of defence and the learned courts below were justified in law while decreeing the suit?"
Subsequently, during course of arguments learned counsel for the appellant contended that the appellate court has decided the appeal without complying the provisions of Order-41, Rule-31 of the Civil Procedure Code, therefore the following substantial question of law was also framed:-
" (5) Whether judgment passed by the Lower Appellate court is not sustainable due to non compliance of Order 41 Rule 31 of Civil Procedure Code as point of determination has not been stated and whether the said provision is mandatory and failure to comply the same vitiates the judgment?"
5. Heard, Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan, learned counsel for the appellant and Shri B.N. Mishra, learned counsel for the respondent.
6. Submission of learned counsel for the appellant was that the suit filed by the respondent was barred by limitation because the adoption deed was executed on 11.08.1995 and the suit was filed on 25.11.2011 whereas on the basis of the said registered adoption deed the appellant was appointed in dying in harness in the year 1996 without raising any objection. Therefore, the suit should have been dismissed being barred by limitation under Order 7 Rule 11. The learned trial court, despite a specific plea by the appellant in regard to limitation, failed to make any issue in regard to limitation. He, relying on a judgment of this Court in the case of Ram Dayal and Others Vs. Firm Hanoman Prasad Manohar Lal and Others; 1985 (3) LCD 262, submitted that it is the responsibility of the court to frame the proper issues which arise in the case. He had further submitted that the suit was not maintainable on the principle of estoppel also because once the appellant was appointed treating the same adoption deed as correct, the respondent could not have challenged validity of the same.
7. Learned counsel for the appellant had further submitted that the presumption available to a registered deed of adoption under Section-16 of the Hindu Adoption and Maintenance Act, 1956 (here-in-after referred as HAMA 1956) can not be discarded merely on the basis of a complaint and it can not be challenged by the department. The court also could not have discarded the same merely on surmises and conjunctures ignoring the admission by PW1 that the department had appointed the appellant founding the adoption deed to be correct. He further submitted that the name of the appellant was recorded in Pariwar Register and Revenue Records after the death of late Kanhaiya Lal on whose place the appellant was appointed under dying in harness rules. But the said documents have wrongly been discarded by the trial court on the ground that they are subsequent to the adoption deed and not considered by the appellate court. Therefore both the judgments passed by the courts below are vitiated and not sustainable in the eyes of law.
8. Learned counsel for the appellant had further submitted that the respondent had to prove his case by leading positive evidence and could not derive any benefit from the weakness of the defence but the learned courts below failed to consider it. The respondent had failed to prove his case and disprove the registered adoption deed, ignoring the same the suit has been allowed and appeal has been dismissed on the ground that the appellant has not been able to discharge his burden.
9. Learned counsel for the appellant had also submitted that the first appellate court has decided the appeal without following the mandatory provisions of Order-41, Rule-31 of the Civil Procedure Code as points of determination have not been stated. The first appellate court had also failed to consider all the evidence and material on record. Therefore, the judgment and decree passed by the first appellate court is not sustainable on this ground alone and is liable to be set-aside.
10. The learned counsel for the appellant has relied on Kuldeep Saxena Vs. Smt. Archana Saxena and 6 Others; 2017 (Suppl) ADJ 740, U. Manjunath Rao Vs. Chandrashekar and Another; 2017 SCC Online SC 865, Kanailal and Others Vs. Ram Chandra Singh and Others; 2017 SCC Online SC 1009, C. Venkata Swamy Vs. H.N. Shivanna (D) by Lrs. and Another; (2018) 1 SCC 604, Laliteshwar Prasad Singh and Others Vs. S.P. Srivastava (D) through Lrs; (2017) 2 SCC 415, Ayodhya Prasad Vs. Durga Prasad and Others; 2017(35) LCD 3236, Ram Narain Vs. Raj Narain; 2017 (35) LCD 2771, Malluru Mallappa (D) through Lrs. Vs. Kuruvathappa and Others; (2020) 4 SCC 313, Madhukar and Others Vs. Sangram and Others; (2001) 4 SCC 756, Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs.; (2001) 3 SCC 179, Shashidhar and Others Vs. Ashwani Uma Mathad and Another; (2015) 11 SCC 269, Shiv Singh Rana Vs. Deputy Registrar and Others; 2000 (18) LCD 1211, Committee of Management Vs. Deputy Director of Education; 2006 (24) LCD 1328, Union of India Vs. Ibrahim Uddin and Another; 2012 (30) LCD 1635, Vinod Kumar Vs. Gangadhar; (2015) 1SCC 391, Gram Sabha Kaunai, Vs. Deputy Director of Consolidation; 2009 (27) LCD 1118, Ayodhya Prasad Tewari Vs. Ramesh Chandra and Others; 2012 (30) LCD 575, Laxmibai (D) and another Vs. Bhagwantbuva (D) and Others; 2013 (31) LCD 540, Amar Singh Vs. Tej Ram and Another; AIR 1982 Punjab and Haryana 282, Sushil Chandra Vs. Smt. Bhoop Kunwar and Others; AIR 1977 Allahabad 441, Md. Aftabuddin Khan and Others Vs. Smt. Chandan Bilasini and Another; AIR 1977 Orissa 69 and Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others; AIR 1960 SC 100.
11. Submission of learned counsel for the appellant was refuted by the learned counsel for the respondent. He had submitted that the suit was filed within time from the date of knowledge of execution of adoption deed fraudulently, when a complaint was made on 27.05.2011 to the District Magistrate, Faizabad and enquiry was conducted and letters were written to the higher officers of respondent department on 20.06.2011 and 21.06.2011. He further submitted that it was a case of obtaining service under dying in harness on the basis of a fraudulent adoption deed in which the respondent was not a party. Therefore, it was rightly filed by the department within the time from the date of knowledge being fraudulent and it was not barred by Principle of Estoppel also. The plea of limitation raised by the appellant has been considered by the trial court and rejected. He relied on Sl. No.59 of the Schedule of the Limitation Act, 1963.
12. Learned counsel for the respondent had further submitted that the case of the respondent was proved by the PW-1 and PW-2 and disproved the adoption deed executed in favour of the appellant. The appellant could not extract anything in cross-examination which may disbelieve the evidence. He further submitted that DW-1 i.e. the appellant and DW-2, who is the natural father of the appellant gave contradictory evidence which is not believable. The appellant could not prove the adoption and execution of deed validly. It is the admitted case of the appellant that Kanhaiya Lal, who had executed the adoption deed, was suffering from paralysis and he was not in a position to speak and walk and his hands and legs were also not working so it was falsely mentioned in the adoption deed that the same has been executed with his sweet will after he heard and understood. There is also no proper explanation for putting thumb impression on the adoption deed while Kanhaiya Lal, the alleged adoptive father of the appellant used to sign. A finding was also recorded by the City Magistrate that the thumb impression does not tally with the thumb impression on service book of Kanhaiya Lal, even then the appellant did not try to prove the same. Therefore it is apparent that the adoption deed was also got executed and registered fraudulently by some other person in place of late Kanhaiya Lal.
13. Learned counsel for the respondent had also vehemently opposed the submission of learned counsel for the appellant regarding violation of order-41, rule 31 of C.P.C. and submitted that there is no illegality or infirmity in the order passed by the first appellate court. Learned counsel for the respondent relied on Gurrella Durga Vara Prasad Rao Vs. Indukuri Rama Raju; 2002 (Supp.2) ALD 757, Malluru Mallappa (D) through LRs. Vs. Kuruvathappa and Others; (2020) 4 SCC 313, Laxmibai (D) and Another Vs. Bhagwantbuva (D) and Others; 2013 (31) LCD 540 and Union of India and Others Vs. Tarsem Singh; 2008 (8) SCC 648.
14. I have considered the submissions of learned counsel for the parties and perused the records.
15. The so called registered adoption deed was executed on 11.08.1995, on the basis of which the appellant was appointed under dying in harness rules on 17.08.1996 on the post of Clerk with the respondent. A complaint was made by one Mukesh Kumar Srivastava, a social worker, on 27.05.2011 to the District Magistrate for Magisterial Enquiry in regard to obtaining service by the appellant on the basis of forged document etc. In pursuance there of an enquiry was conducted by the City Magistrate, in which the adoption deed was found to have been got executed in a fraudulent manner and a report was submitted by him on 20.06.2011. In pursuance thereof the District Magistrate had written letters dated 20.06.2011 and 21.06.2011 to the department of the appellant i.e. the respondent. Thereafter, the suit for cancellation of registered adoption deed dated 11.08.1995 was filed by the respondent on 28.11.2011. Sl. No.59 of the Schedule of The Limitation Act, relevant for the purpose, is extracted below:-
Sl. No. Description of Suit Period of Limitation Time from which period begins to run
59. To cancel or set aside an instrument or decree or for the rescission of a contract.
Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
16. In view of above, the period of limitation to set-aside the registered adoption deed, on the basis of which the appellant was appointed in service, is three years from the date of knowledge of the fact entitling to respondent i.e. the plaintiff to have the instrument cancelled. Section 17 of the Limitation Act provides that the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud. It is not disputed that the respondent was not a party to the deed. Therefore it can not be said that the fact entitling to plaintiff to have the instrument rescinded was become known to respondent/plaintiff prior to the complaint made questioning the adoption deed only because the appellant was appointed on the basis of the alleged adoption deed treating it as correct because it was registered. The fact entitling the respondent to have the instrument cancelled or set-aside first become known to the respondent only on or after 27.05.2011, when the complaint was made it was found fraudulently registered and the suit was filed on 28.11.2011, therefore the suit was filed well within time and it was not barred by limitation. The Hon'ble Apex Court, in the case of Union of India and Others Vs. Tarsem Singh (Supra), has held that a "continuing wrong" refers to a single wrongful act which causes a continuing injury and in such case relief can be granted even if there is a long delay. In the present case the appellant was appointed on the basis of fraudulent deed and continuing and getting salary regularly, therefore also the suit for cancellation of the fraudulent deed can not be barred by limitation.
17. Now the question arises, as to whether the trial court had failed in discharging its responsibility of framing the issue of limitation when a plea was raised. The trial court had framed issue no.6 "Whether the suit was barred by provisions of Order-7, Rule-11, C.P.C." Order-7, Rule-11 of C.P.C. provides the grounds on which a plaint can be rejected. Sub-rule (d) of Rule-11 provides "Where the suit appears from the statement in the plaint to be barred by any law." Therefore the plea of barred by law of limitation could have been considered in the said issue. This Court, in the case of Ram Dayal and Other Vs. Firm Hanoman Prasad Manohar Lal and Others (Supra), has held that it is true that on the date of framing of the issues the parties made statement that no other issue is pressed but that does not absolve the responsibility of the court in not framing proper issues which arise in the case. Since an issue was framed, in which the plea of barred by law of limitation raised by the appellant could have been considered and was considered by the trial court and found the suit within limitation, therefore there was no need of framing a separate issue of limitation. This court is of the considered opinion that there is no illegality or error in the finding recorded by the trial court in regard to limitation and it has not committed any illegality or error in not framing a separate issue in regard to limitation and trial court has rightly discharged the responsibility. The aforesaid case law relied by learned counsel for the appellant is of no assistance to him.
18. The next submission of learned counsel for the appellant was regarding presumption available to the registered adoption deed under Section-16 of the HAMA 1956 and it can not be challenged by the department. Section-16 of the Hindu Adoption and Maintenance Act is extracted below:-
"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 has been made in compliance with the provisions of this Act unless and until it is disproved."
The aforesaid Section-16 has been renumbered as Sub-section 1 and Sub-section 2 has been added by the State Amendment by the State of Uttar Pradesh by means of Act No. 57 of 1956 w.e.f. 01.01.1997, which is extracted below:-
"State Amendment Uttar Pradesh Section 16 renumbered as sub-section(1) thereof and after sub-section (1) as so renumbered, the following sub-section (2) shall be inserted, namely:--
"(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force: Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872."
(i) 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 has been made in compliance with the provisions of this Act. The proof of giving and taking of child is not necessary; Pathivada Rama Swami v. Karoda Surya Prakasa Rao, AIR 1993 AP 336.
(ii) If the adoption is disputed, it is for the plaintiff to prove that ceremony of giving and taking has not taken place; Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189."
19. In view of above, in case a registered document relating to adoption is produced, the court shall presume that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved. It has been provided by State amendment of Uttar Pradesh that on or after 1st day of January, 1977 the court shall not accept any evidence of adoption, except a document recording an adoption, made and signed by the person giving and person taking the child in adoption, and registered under any law for the time being in force. Thus the presumption is available only until it is disproved. Therefore it is always open to the person challenging it to disprove the same in accordance with law. Therefore, the validity of the adoption deed could have been examined by the court when the question regarding it's validity was raised.
20. The Hon'ble Apex Court, in the case of Mst. Deu and Others Vs. Laxmi Narayan and Others; (1998) 8 SCC 701, has held that in view of Section 16, whenever any document registered under any law is produced before any court purporting to record an adoption made and the same is signed by the persons mentioned therein, the court shall presume that the said adoption has been made in compliance with the provisions of he Act, until and unless such presumption is disproved. It was further held that in view of Section 16 it is open for a party to attempt to disprove the deed of adoption by initiating independent proceedings.
21. In view of above the respondent has rightly filed the suit for cancellation of deed of adoption in accordance with law under Section 31 of Specific Relief Act, 1963 after coming to know that it was fraudulently got registered because the respondent department has to pay the salary to the appellant from the public exchequer on account of appointment in dying in harness on the basis of said fraudulent deed. Therefore, the admission that the appellant was appointed on the basis of the said deed being a registered document does not debar it from challenging the deed because it may cause serious injury to it. Therefore it is not barred by principle of estoppel also. The judgment of the Hon'ble Apex Court, in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others (Supra), is of no assistance to the appellant because it provides that an admission is best evidence, though not conclusive but decisive unless successfully withdrawn or proved erroneous. The same view has been reiterated in the Union of India Vs. Ibrahim Uddin and Another (Supra). It can be proved only in appropriate proceeding therefore it can not be said that the suit could not have been filed.
22. The certified copy of the adoption deed on record shows that the same has been executed by Kanhaiya Lal, the adoptive father of the appellant and the natural parents of the appellant i.e. Ram Kishore and Devraji. It is mentioned in the deed that wife of Kanhaiya Lal has died some times ago. It has further been stated that he had adopted the son of the second party Shiv Darshan in his childhood according to Hindu rituals but it was not in writing. Therefore, it is apparent that the appellant was not adopted when the deed was being registered and the registered deed was executed in regard to the alleged adoption made earlier. But the details i.e. no date, time and place of adoption and any witness of the alleged adoption has been given in the adoption deed. Therefore the adoption deed does not itself prove that the alleged adoption is in accordance with law.
23. The question arises as to whether in case of registration of an adoption deed of an earlier oral adoption it would operate from the date of oral adoption or from the date of registration. Section-47 of the Registration Act provides that the registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. Section-47 is extracted below:-
"47. Time from which registered document operates- A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
24. The alleged adoption has been made in the year 1980, which is after 1977 and in view of Sub-Section (2) of Section-16 by the State amendment in Uttar Pradesh, in case of an adoption after the first day of January 1977, no court in Uttar Pradesh shall accept in evidence in proof of giving and taking of a child in adoption except document regarding any adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force. Therefore the adoption in the present case would not be valid without registered deed of adoption and it can not operate from a prior date, so also the appellant does not get any benefit from it because it's contents does not prove valid adoption.
25. The Hon'ble Apex Court, in the case of Laxmibai (Dead) through LRs. and Another Vs. Bhagwantbuva (Dead) through LRs. and Others; (2013) 4 SCC 97, has held that the Court while construing a document, is under an obligation to examine the true purport of the document and draw an inference with respect to the actual intention of the parties. The Hon'ble Apex Court found in the said case that the complete details were given in the registered adoption deed. Relevant paragraph 16 is extracted below:-
"16. Undoubtedly, the court while construing a document, is under an obligation to examine the true purport of the document and draw an inference with respect to the actual intention of the parties. The adoption deed was registered on 11.5.1971, and the same provided complete details stating that the adopted child was 8 years of age, and that the adoptive mother was an old lady of 70 years of age. The adoptive child was related to Smt. Laxmibai. Her husband had expired in 1951 and it had been his desire to adopt a son in order to perpetuate the family line and his name. The natural parents of the adoptive child had agreed to give their child in adoption, and for the purpose of the same, the requisite ceremony for a valid adoption was conducted, wherein the natural parents, Vasant Bhagwant Pandav and Smt. Sushilabai Vasantrao Pandav, placed the adoptive child in the lap of the adoptive mother, in the presence of a large number of persons, including several relatives. A religious ceremony called "Dutta Homam", involving vedic rites was performed by a pandit, and photographs of the said occasion were also taken. Registration of the adoption deed was done on the same day, immediately after its execution, before the concerned Registrar. The adoptive mother put her thumb impression on the deed, and it was also signed by the natural parents of the child. Additionally, the deed was signed by 7 witnesses, and all the parties have been identified. The registered document when read as a whole, makes it evident that Vasant Bhagwant Pandav and Smt. Sushilabai, the natural parents of the adoptive child, have signed the same as attesting witnesses, and not as executing parties."
26. The question arises as to whether the adoption was made in accordance with law or not. Chapter II of the Hindu Adoption and Maintenance Act, 1956 deals with the adoption. The relevant provisions are discussed/extracted first for better appreciation of the rival contentions in the case in hand. Section 5 provides 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 this chapter and any adoption made in contravention of the said provisions shall be void. An adoption which is void shall not create any rights in the adoptive family. The requisites of a valid adoption has been provided in Section 6, which is extracted below:-
"6. Requisites of a valid adoption- No adoption shall be valid unless- (i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter."
27. Section 7 provides the capacity of a male Hindu to take in adoption, which is extracted below:-
"7. Capacity of a male Hindu to take in adoption- Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation-If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso."
28. Section 10 of the HAMA 1956 provides the person who may be adopted. The relevant Section 10 (IV) for the purpose of this case is extracted below:-
"10.(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."
29. The other conditions for a valid adoption have been given in Section-11 of the HAMA 1956 which are extracted below:-
"11. Other conditions for a valid adoption- In every adoption, the following conditions must be complied with:
(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.
Provided that the performance of datta homan, shall not be essential to the validity of an adoption."
30. In view of aforesaid provisions the adoption made after commencement of the Act of 1956 is valid only if it has been made in accordance with the provisions contained in chapter II and if it is in contravention of the said provisions, it shall be void. Therefore, it is required to be proved even if there is deed of adoption. In the present case the so called adoption deed was got registered on 11.08.1995 stating therein that the appellant was adopted in his childhood. Therefore, if the adoption is in accordance with the Act, only then, it is valid otherwise it is void. In view of S.106 of Evidence Act, the burden was on appellant because of special knowledge of the alleged adoption.
31. The Hon'ble Apex Court, in the case of State of Chhatisgarh and others Vs. Dhirjo Kumar Sengar; (2009) 13 SCC 600, has held that in terms of Section 106 of the Evidence Act, the respondent having special knowledge in regard thereto, the burden of proving the fact that he was adopted, was on him.
32. The Hon'ble Apex Court in the case of Madhusudan Das Vs. Smt. Narayani Bai and Others; AIR 1983 SC 114 / (1983) 1 SCC 35, has held that a person who seeks to displace the natural succession by alleging an adoption must discharge the burden that lies upon him by proof of the factums of adoption and its validity by the evidence which should be free from all suspicion of fraud. The relevant paragraph- 19 is extracted below:-
"19. It is well settled that 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. (see A. Raghavamma and Anr. v. A. Chanchamma). It is also true that the 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. (see Kishori Lal v. Chaltibai). Nonetheless the fact of adoption must be proved in the same way as any other fact."
The same view has been taken in Md. Aftabuddin Khan and Others Vs. Smt. Chandan Bilasini and another relied by the learned counsel for the appellant.
33. The first requisite of a valid adoption, as per Section 6(1) is that the person adopting has the capacity, and also the right, to take in adoption. As per Section 7 any male Hindu of sound mind and not a minor has the capacity to take a son or daughter in adoption. Provided if he has a wife living, he shall not adopt except with the consent of his wife unless the wife was incapable of giving consent for the reasons stated under the proviso. In the present case it has not been disclosed as to when wife of the adoptive father had died and if she was alive at the time of alleged adoption as to whether the adoption was made with her consent or she was incapable of giving consent. It has also not been disclosed as to whether the appellant was unmarried or married at the time of adoption. It has been mentioned in the alleged adoption deed that the appellant is of 11 years of age at the time of adoption deed while the appellant was of 25 years of age as admitted by him in his evidence. Whereas in view of sections 10 (iv) and 11, besides other, the person who is being adopted should not have been married and not completed the age of 15 years unless there is a custom of usage applicable to the parties. Therefore, it appears that the age was mentioned to bring it within the purview of the HAMA 1956. DW-2/ the natural father of the appellant has stated in his evidence by way of affidavit prepared in court compound on 02.02.2013 since the age was not mentioned therefore the Sub-Registrar had scolded to the scribe therefore he had written it in haste. But in cross-examination on 13.02.2013 he stated that he has not filed any document by his signature in this case and he had come to this court before 1-2 year. The DW-3 has firstly stated that Sub-Registrar had scolded to the scribe and subsequently he stated in his cross-examination that he does not know as to whether the Sub-Registrar or his Clerk had scolded to the scribe or not and then stated that the writer was not scolded by the Sub-Registrar or his Clerk before him and he was not scolded before Kanhaiya Lal Yadav or Ram Kishore also. Therefore they have given contradictory evidence so their evidence is not reliable.
34. Section-12 of the HAMA 1956 provides the affects of adoption, according to which an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by adoption in the adoptive family. As such from the date of adoption the relation of child, who has been adopted, shall be severed from the family from which it has been adopted. As alleged in the present case Kanhaiya Lal has adopted the appellant in the year 1980. Thereafter he should have got his name recorded in the school records but it was not done. However a plea has taken that the teacher had refused to write on the ground that everybody has come to know it and there is no requirement of it and if it is required, he will do so but it is not believable. The appellant as DW-1, admitted in his cross-examination that he had studied up to B.A. but he had not given any written application to the Principal of the college for writing the name of Kanhaiya Lal. The DW-2 has also stated that he does not know as to whether the parentage was changed in the school records or not. Therefore, it is apparent that the name of the natural father of the appellant continued in the official records. The great emphasis was given by the learned counsel for the appellant that in the Pariwar Register, Relation Certificate, Report of the Police Station and the copy of the Khatauni, the name of the appellant has been recorded as an heir of Kanhaiya Lal, therefore, the adoption was valid. But the same has been recorded after execution of registered adoption deed and till the date of registration of adoption deed, the name of the appellant was shown in the family of his natural father Ram Kishore. So the appellant is not entitled for any benefit of the said documents unless and until the adoption is held valid in accordance with law.
35. Section-11 (6) provides that a child adopted must be actually given and adopted by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. But no date, time and place has been given on which late Kanhaiya Lal had adopted to the appellant. Though, it has been stated by the appellant in the written statement that he was adopted on Saptami Tithi Chaitmaas Navrat of 1980 after calling his parents, villagers and relatives and according to Hindu rituals but the appellant has failed to prove the same by adducing any cogent evidence. The DW-1 i.e. the appellant himself and the other two witnesses- DW-2 i.e. the natural father of the appellant and DW-3 i.e. the attesting witness of the deed could not disclose the name of the priest who had got performed the rituals of adoption and the name of any of the villagers or relatives present at that time. Therefore, the appellant has failed to prove that he was adopted in his childhood.
36. In view of above, the question arises as to whether the adoption deed was validly registered or not. Section-7 provides that any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or a daughter in adoption. The adoptive father of the appellant late Kanhaiya Lal Yadav had paralysis attack on 04.07.1995 when he was hospitalized in Civil Hospital, Faizabad from where he was discharged on 10.07.1995. Thereafter his condition deteriorated so he was referred to K.G.M.C. Lucknow where also he remained hospitalized for sometime and after discharge he had executed the adoption deed on 11.08.1995 and he died on 19.08.1995. As per evidence of DW-2 he had informed to the appellant that adoption deed is going to be registered but it was not informed by the Kanhaiya Lal; the adoptive father because he was not in a position to speak. Kanhaiya Lal had put his signatures on the adoption deed without reading or getting it read by anyone therefore it is apparent that he did not know the contents of the adoption deed at the time of signing the deed while the deed was not signed. There is thumb impression on the alleged deed. It has also been stated that the paralysis was in whole body because of which his hands and legs were not working and he was also not able to speak though he was able to recognize. The DW-2 also stated that after execution of the deed, he took Kanhaiya Lal to Lucknow Medical College where he remained admitted for 10-12 days. Subsequently, he said that he took him after 8-10 days of execution of adoption deed to Lucknow while he had died after 7 days on 17.08.1995. He also stated that he had not heard the contents of the deed and only made the signatures. Therefore it could not be proved that Kanhaiya lal was in fit condition to give free consent and execute the deed and both i.e. adoptive father and natural father did not even know the contents of the deed so it has wrongly been mentioned in the deed that this adoption deed has been written after hearing and understanding. Therefore, the appellant is not entitled for presumption available to registered deed of adoption.
37. Adverting to the plea of violation of Order-41, Rule-31 C.P.C. of the learned counsel for the appellant, this court found that in the judgment and order passed by the appellate court it has been recorded " I find that the genuineness of the adoption deed has been challenged by the respondent / plaintiff, which fact has been proved by the plaintiff and as against it, the defendant has not been able to prove the genuineness of the adoption deed. The physical and mental condition of the alleged executant Kanhiayalal on the date of execution of the adoption deed, who was suffering from paralysis from before one month of the execution of the adoption deed, the contradiction in the statement of D.W.2, the brother of Kanhaiyalal aged about 70 years about physical disability of Kanhaiyalal at relevant time, from written statement that matter of adoption was discussed by Kanhaiyalal with his Advocate one day before the execution of adoption deed, no details about adoption ceremony allegedly held in the year 1980, non production of any witness/ documentary evidence about the said adoption of 1980, wrong statement of fact in the adoption deed about age of the appellant as 11 years, non production of scribe on the date and other important evidence leads to but one inference that the deed was not a genuine document, but was based on fraud and was executed with a view to obtain employment in U.P.P.C.L., Faizabad on compassionate ground in place of Kanhaiya Lal." The appellate court also considered the documents relied by appellant and held that the same can not help the defendant in view of discussion. Thus the appellate court on the basis of facts, evidence and circumstances of the case was of the view that respondent/plaintiff has proved their case to the hilt as against it the appellant/defendant has not been able to discharge their burden and thus the impugned judgment and order is perfectly valid and in accordance with law. Therefore, in fact the appellate court has disclosed the issues considered by it.
38. The Hon'ble Apex Court, in the case of Laliteshwar Prasad Singh & Others Vs. S.P. Srivastava (D) through Legal Representatives; (2017) 2 SCC 415, held in paragraph-12 that it is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court. The relevant paragraph-12 is extracted below:-
"12. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:
"31. Contents, Date and Signature of Judgment.
The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."
39. The Hon'ble Apex Court, in the case of Kannai Lal and Others Vs. Ram Chandra Singh and Others; 2017 SCC Online SC 1009, has held that while deciding the second appeal, it is clear from bare reading of the Rule-31 (A) to (D) that it makes it legally obligatory upon the appellate court (both first and second appellate court) as to what should the judgment of the appellate court contain and while deciding the second appeal which lies only to the High Court, the court has to further ensure compliance of the requirements of section 100 of the Code in addition to the requirements of Order-41 Rule-31.
40. The Hon'ble Apex Court, in the case of Malluru Mallappa (D) through legal representatives Vs. Kuruvathappa and Others; (2020) 4 SCC 313, has held that no doubt when the appellate court agrees with the views of the trial court on evidence it need not reinstate affect of evidence or reiterate reasons given by the trial court and expression of a general agreement with reasons given by the trial court would ordinarily suffice. The relevant paragraph-18 is extracted below:-
"18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply (2015) 11 SCC 269 with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice."
41. The Hon'ble Apex Court, in the case of Shasidhar & Others Vs. Ashwini Uma Mathod & Another; (2015) 11 SCC 269 has held that it is the duty of the first appellate court to decide the first appeal keeping in view the scope and powers conferred under section 96 read with Order 41, Rule-31 of C.P.C.
42. In the case of U. Manjunath Rao Vs. Chandrashekar and Another (Supra) the Hon'ble Apex Court held that while agreeing with the general approval of reasons to support the conclusion of the judgment in appeal, the High Court has to keep in view Order-41 Rule-31 C.P.C. and the view expressed in Satosh Hazari Vs. Purshuttam Tiwari. The Hon'ble Apex Court, in the case of C.Venkata Swamy Vs. H.N. Shivanna (D) By Lrs. & Other; (2018) 1 SCC 604 and Madhukar and Others Vs. Sangram and Others; (2001) 4 SCC 756 also, has relied the case of Santosh Hazari Vs. Purshuttam Tiwari (Supra).
43. The Hon'ble Apex Court in the case of Santosh Hazari Vs. Purshuttam Tiwari (Dead) by Lrs; (2001) 3 SCC 179, held that the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The appellate court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. The above view has been followed in the case of Madhukar and Others Vs. Sangram and Others; (2001) 4 SCC 756. The judgment of Santosh Hazari Vs. Purshuttam Tiwari (Supra), has been relied in the case of C.Venkata Swamy Vs. H.N. Shivanna (D) By Lrs. & Other; (2018) 1 SCC 604.
44. The Hon'ble Apex Court in the case of Nopani Investment (P) Ltd Vs. Santokh Singh, (HUF); (2008) 2 SCC 728, while considering the Order-41, Rule-31 C.P.C., held that it is well settled that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. It has also been observed that it has to be kept in mind that the decisions of this court in Madhukar and Others (supra) and Santosh Hazari's case (supra), were considering the reversal of the findings of fact of the trial court.
45. A Division Bench of this Court, in the case of Shiv Singh Rana Vs. Deputy Registrar Sahkari Society, U.P. Agra Division, Agra and Other; 2000 (18) LCD 1211, has held that no doubt the appellate court need not go into details and give a detailed judgment like that of a court of law but it must give at least in brief its reasons showing application of mind. Similarly a Division Bench of Andhra Pradesh High Court, in the case of Gurrella Durga Vara Prasad Rao Vs. Indukuri Rama Raju (Supra) has held that if the court finds from reading of judgment of first appellate court that the grounds urged in the memorandum of appeal have been considered and a decision with reasons thereon has been given, it would be in conformity with Order-41, Rule-31.
46. In the case of Vinod Kumar Vs. Gangadhar; (2015) 1 SCC 391, the Hon'ble Apex Court has held that being first appellate court it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section-96 readwith Order-41 Rule-31 C.P.C.
47. The Hon'ble Apex Court in the case of G. Amalorpavam Vs. R.C. Diocese of Madurai, (2006) 3 SCC 224 has held that non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court.
48. In view of above, the judgment of the first appellate court should be in conformity with the Order-41 Rule-31 of C.P.C. and reflect the conscious application of mind on the issues involved in the case but the same can not be vitiated merely because the point of determinations have not been specifically stated. Therefore the judgment of this Court in the case of Kuldeep Saxena Vs. Smt. Archana Saxena and 6 Others; Second Appeal No.309 of 2016, Ram Narain Vs. Raj Narain; 2017 (35) LCD 2771 and Ayodhya Prasad Vs. Durga Prasad and Others; (2017) 35 LCD 3236 passed by a coordinate bench of this Court, relied by learned counsel for the appellant are not of any assistance to the case of the appellant.
49. Thus this court is of the considered opinion that there is no illegality or error in the judgment and order passed by the appellate court by which the judgment of trial court has been confirmed and it does not vitiate merely because the points of determination have not been stated though it has disclosed the issues considered by it as discussed above. The findings recorded by the courts below and the conclusion that the alleged adoption deed dated 11.08.1995 is not valid and the respondent is able to get it cancelled, does not suffer from any illegality or error. Learned counsel for the appellant has also failed to demonstrate in any manner that the judgment and decree passed by the appellate court is not sustainable on merit therefore merely on technical grounds, although that also does not subsist as discussed above, it can not be reversed or remanded in view of Section 99 of C.P.C., which is extracted below:-
Section 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :
[Provided that nothing in this section shall apply to non-joinder of a necessary party.]
50. A coordinate bench of this Court after considering the provisions of Order-41, Rule-31 and S.99 of C.P.C., in the case of Dalla Vs. Nanhu; 2018 SCC Online All 5845 has held as under:-
"32. In order to successfully canvass the point of non-compliance of Order XLI Rule 31 CPC, it is not mere non framing of points of determination alone, but consequent failure of justice must also be established occasioned to a party."
51. In view of above, this court is of the considered opinion that all the issues raised by the appellant have failed and there is no illegality or error in the judgment and decree passed by the courts below. The substantial questions of law framed by this Court are decided, accordingly, against the appellant. The appeal is misconceived and devoid of merit.
52. The second appeal is, accordingly, dismissed with cost. The lower court record shall be remitted back to the concerned court.
.................................................... .........(Rajnish Kumar,J.) Order Date :- 25.02.2021 Haseen U.