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Jharkhand High Court
Sanicharia Devi vs Belu Thakur Adopted Son Of Late Saligram … on 28 August, 2025
2025:JHHC:25872
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 246 of 2002
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Sanicharia Devi, wife of Jaikant Thakur and Daughter of Late Sukar
Thakur, resident of Village Govindpur, P.S. Saraiyahat, Dist. Dumka.
... ... Appellant/Plaintiff
Versus
1. Belu Thakur adopted son of Late Saligram Thakur @ Osta
2. KoshalyaKumari adopted daughter of Late Saligram Thakur @
Osta.
3. Janardan Prasad Yadav, son of Keshwar Prasad Yadav
4. Dhyani Devi, wife of Janardan Prasad Yadav
All resident of village Govindpur, P.S. Saraiyahat, Dist. Dumka
... ....Respondents/Defendants
5. Pritam Thakur, son of Late Harihar Thakur
Resident of village Saraiyahat, P.S. Saraiyahat, Dist. Dumka
... ....Respondent/Proforma Defendant
6. Jagdish Thakur, son of Late Sukar Thakur resident of Village
Govindpur, P.S. Saraiyahat, Dist. Dumka.
...... Respondent/Plaintiff
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For the Appellant : Mr. Manjul Prasad, Sr. Advocate
Mr. AmanKedia, Advocate
Mr. AkhouriPrakharSinha, Advocate
For the Respondents : Mr. Rajeeva Sharma, Sr. Advocate
Mrs. Rita Kumari, Advocate
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMARSRIVASTAVA
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JUDGMENT
C.A.V. on 30.06.2025 Pronounced on 28/08/2025
The instant Second Appeal has been preferred being aggrieved
and dissatisfied with the judgment and decree dated 25.09.2002 (decree
signed on 05.10.2002) passed by learned Additional District Judge-III,
Dumka in Title Appeal No. 1 of 2000 whereby and whereunder the
judgment and decree dated 04.12.1999 passed by Civil Judge, Senior
Division-I, Dumka in Title Suit No. 20 of 1997 has been reversed and the
suit of the plaintiff has been dismissed.
2. The factual matrix giving rise to this appeal is that the
plaintiff/appellant filed the suit for declaration that adoption deeds No.
90/1973 dated 07.02.1973 and 278/1978 dated 05/10/1978 purportedly
executed by Rani Ostain in favour of defendant No. 1 and 2, respectively
1 S.A. No. 246 of 2002
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to be void, inoperative and not binding upon plaintiff. It is alleged that
parties are Hindus and governed by Hindu Law of Succession. It is
alleged that plaintiff Okhiya Ostain is sole daughter of Pairu Osta who
died in the year 1957 leaving behind his son Saligram Osta and daughter
Okhiya Ostain, the plaintiff. After death of Pairu Osta, the plaintiff along
with her brother Saligram Osta jointly succeeded and came into
possession of the landed property pertaining to Jamabandi No. 28 Mauza
Karia and Jamabandi No. 21 Mauza Eksingha and Jamabandi No. 20
Mauza Govindpur. It is further alleged that Saligram Osta died in the
year 1964 leaving behind his sole daughter Binda Devi and sole son
Neelkanth and his wife Rani Ostain. Neelkanth Osta died in the month of
April, 1973 and Binda Devi was married with one Pritam Thakur
(proforma defendant No. 5) who also died in the year 1980. Thereafter,
Rani Ostain solemnized her second marriage with one Muso Osta of
Saraiyahat and also executed a paper dated 05.06.1973 in presence of
Panchayat Authorities and villagers in respect of said marriage. It is
further alleged that Binda Devi also died issueless and her husband
Pritam Thakur (proforma defendant No. 5) performed second marriage.
Thereafter, being sole surviving heir of Pairu Osta (the recorded tenant)
the plaintiff in the capacity of his daughter became exclusive owner and
came into possession of the aforesaid landed properties. It is further
alleged that since some time past the defendants are making faul sort of
false claims. It is further alleged that defendant No. 1 and 2 are claiming
to be adoptive son and daughter respectively of Rani Ostain as per
impugned adoption deeds which are false and fabricated and such
adoption never took place rather in the garb of adoptions, the defendants
are adamant to get their names recorded in the present settlement which
is in operation. It is further alleged that the plaintiff for the first time
came to know about the aforesaid adoption deeds in first week of April,
1996 and with great difficulty obtained certified copies of the adoption
deeds and instituted this suit because the false claims of the defendants
before the settlement authorities has cast doubt in the right, title and
2 S.A. No. 246 of 2002
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possession of the plaintiff.
3. On the other hand, the contesting defendants (first party) in their
written statement stated that the name and parentage of defendant No. 1
and 2 who are adopted son and daughter of Rani Ostain has been
wrongly mentioned as their original name rather after adoption their
name has been changed as Belu Thakur and Kaushalaya Kumari
respectively and their natural father’s name has also been mentioned
instead of adoptive father and mother Rani Ostain and Saligram Thakur.
It is further stated that plaintiff has no locus standi to institute the suit
which is hopelessly barred by law of limitation also. It is admitted that
Pairu Osta had one son and one daughter namely Saligram and Okhiya
respectively but it is wrong to say that Pairu died in the year 1957 rather
he died in the year 1948. It is denied that after death of Pairu Osta,
Okhiya Ostain (plaintiff) succeeded to the properties left by her father
jointly with her brother Saligram Osta rather sole son of Pairu Osta
Saligram succeeded and inherited the entire property of Pairu Osta.
Plaintiff never came into joint possession of the property. It is further
alleged that Saligram Osta died in the year 1968 as against 1964 as
pleaded by the plaintiff leaving behind his wife Rani Ostain, daughter
Binda Devi and son Neelkanth pre-deceased Saligram Osta who was
unmarried. It is further stated that Binda Devi was married but died
issueless. It is further stated that Rani Ostain never remarried with Muso
Osta of Saraiyahat and never executed any alleged paper dated
05.06.1973 if any such document are produced the same would be
forged, fabricated and manufactured and collusive document with
connivance of the Panchayat authority. It is further stated that the
plaintiff filed a revenue misc. case No. 34/73-74 before the S.D.O.,
Dumka which was dismissed by order dated 08.04.1974 and the appeal
preferred by the plaintiff being revenue misc. appeal No. 277/75-76 was
also dismissed. It is further stated that there was another case being
Criminal Misc. Case No. 250/1973 in between Rani Ostain and others
Vs. Sambhu Ostain and Ors. Including Okhiya Ostain (plaintiff) before
3 S.A. No. 246 of 2002
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the Court of S.D.M., Dumka wherein the plaintiff did not whisper about
the alleged paper dated 05.06.1973. It is further pleaded that Binda Devi
also pre-deceased her father Saligram Osta therefore she could not be the
owner of the properties of the Saligram Osta. It is further pleaded that
plaintiff never inherited any property of Pairu Osta as such no question
arise to become owner of the property left by Pairu Osta or her brother
Saligram Osta since Rani Ostain remained sole heir of her husband
Saligram Osta and never remarried hence inherited all the properties left
by her husband and came into possession exclusively. It is further stated
that Binda Devi died in the year 1967 and not in the year 1980 as falsely
stated by the plaintiff. Rani Ostain after death of her husband, son and
daughter became issueless hence she adopted the first defendant No. 1
by his natural parents and the ceremony of adoption was performed on
06.02.1973 at her residence and defendant No. 1 was given in adoption
by his natural father Ram Rao with the consent of his wife Basumati
Devi. The ceremony of “giving and taking” was performed in presence
of villagers at village Govindpur and relatives of both the parties. The
defendant was at that time aged about 6 years only since then the
defendant No. 1 was living in the house of Rani Ostain and also
constructed a new house over the lands of his adoptive mother.
Accordingly, a registered deed of adoption dated 06.02.1973 was also
registered as deed No. 90/1973 at Dumka, Sub-Registry Office. It is
further stated that Rani Ostain having no daughter has also taken the
defendant No. 2 in adoption on 16.09.1978 at her residence at village
Govindpur in presence of villagers, relatives and other dignitaries
performing the ceremony of giving and taking from her natural father
and mother and given in the lap of Rani Ostain at the age of two years.
Accordingly, adoption deed was executed and registered on 05.10.1978
vide Deed No. 278/1978 at Dumka, Sub-Registry Office and the adopted
child was renamed as Kaushalaya Kumari. The plaintiff was aware about
the aforesaid adoption deeds from very beginning through revenue misc.
cases and the criminal misc. cases at the time of survey settlement
4 S.A. No. 246 of 2002
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operations as such plaintiff has no cause of action which is barred by
limitation and fit to be dismissed.
4. In course of trial,total five witnesses were examined by the
plaintiff:-
P.W. 1-Okhia Ostain (sole plaintiff died after
evidence)
P.W. 2- MahendraKapri
P.W. 3- Lodho Rout
P.W. 4- Rambriksha Osta
P.W. 5-Shital Thakur
5. Apart from above oral evidence of witnesses, Exhibit-1 regarding
remarriage of Rani Ostain marked with note of objection.
6. On behalf of the defendants, nine witnesses were examined:
D.W.1- Belu Thakur (Defendant No. 1)
D.W.2- Chandi Mahto
D.W.3- Bechan Mahto
D.W.4- Gangadhar Rout
D.W.5- Jagdish Rout
D.W.6- Janardan Prasad Yadav
D.W.7- Bharath Lodwain
D.W.8- Barun Chandra Mandal
D.W.9- Arjun Prasad Yadav
7. Apart from the oral testimony of defendants, following documents
have been exhibited:
Exhibit -A-1 (Deed of Adoption No. 90/73)
Exhibit -A (Signature of Gangadhar Rout on Ext.A/1)
Exhibit -A/2 (Adoption Deed No. 278/78)
Exhibit -B & B/1 are the signatures of Janardan Prasad
Yadav and Dhyani Devi respectively)
Exhibit- C (C/C of cancellation deed no. 225 of the year
1973. This document was filed by the plaintiff. Mark
Exhibit on behalf of the defendants)5 S.A. No. 246 of 2002
2025:JHHC:25872Exhibit- D (C/C of cancellation of deed No. 390 of 1973)
Exhibit- E (C.C. of Attestation parcha of J.B. No. 85/28 of
Mouza Kedia)
Exhibit- E/1 (C/C of Parcha of J.B. No. 3/20 of Mouza-
Gobindpur)
Exhibit- E/2 (C/C of Attestation Parcha of J.B. No. 23/21
of Mouza Eksingha)
Exhibit- F (C/C of Order dated 8.4.74 passed in Revenue
Misc. No. 34/73-74 of the Court of the S.D.O. Dumka)
Exhibit -G (C/C of order dated 18.9.73 of the Court of
S.D.O, Dumka passed in Crl. Misc. Case No. 250/73)
Exhibit-H (C/C of Voter List of Sl. No. 73 of Mouza
Gobindpur of the year 1980 showing Rani Ostain as W/o
Shaligram Osta)
8. Learned trial Court has framed the following issues:-
I. Is the suit maintainable?
II. Has the plaintiff got locus standi to institute the suit?
III. Has the plaintiff got cause of action for the suit?
IV. Whether the suit is time barred?
V. Are the defendant No. 1 and 2 adopted son and daughter,
respectively of Rani Ostain and the registered deeds legal,
valid and operative?
VI. Whether the plaintiffs are entitled to a decree as claimed?
9. Learned trial Court took the Issue No. V as vital issue of this Case
to be decided at first. The prime question about burden of proof of the
alleged two adoption deeds in this case which are having tendency of
displacing the natural course of succession to the ancestral property of
the plaintiff placed reliance upon the reported judgment in the case of
“Addagada Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.,
AIR 1964 SC 136″ wherein it has been held 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
6 S.A. No. 246 of 2002
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adoption and its validity. 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. Nonetheless the fact of the adoption
must be proved in the same way as any other fact”.
10. Further placing reliance upon the decisions of the Hon’ble
Supreme Court in Kashi Nath Rai vs. Mahadeo Rai & Ors, AIR 1977
PATNA 199 that giving and taking ceremony would be essential to the
validity of an adoption and for a valid adoption the physical act of giving
and taking is an essential requisite and also taking into the presumption
attached to registered adoption by virtue of provisions of Section 16 of
the Hindu Adoption and Maintenance Act, 1956.
11. In the touchstone of above principles of law, the learned Trial
Court proceeded to discuss the evidence of defendants who had placed
reliance upon the adoption deeds as basis for exclusion of the plaintiff
from the ancestral property. The learned Trial Court held that on the date
of the alleged adoption, defendant No. 1 Belu Thakur was only five to
six years old and his mother and father who are signatory of the said
adoption deed (exhibit A/1) namely Ram Raut and Dasmati Devi has not
been examined in this case. The adoptive mother Rani Ostain has already
died. The defendant No. 1 also admits that he lived with adoptive mother
only for five to six years thereafter she died. The defendant No. 1 is by
birth belonged to Yadav Community and has also married with a Yadav
girl. D.W.-2 and 3 have also not been able to prove the giving and taking
ceremony and also contrary to the facts pleaded by the parties. D.W.-4
Gangadhar Raoisan practicing advocate at Dumka Bar who drafted the
deed of adoption (Exhibit A/1) and one Uma Kant Rao identified the
parties but not examined by the defendant. This witness has also failed to
prove the factum of actual ceremony of giving and taking between the
parties. D.W.-5 is a hearsay witness regarding adoption of Kaushalya
Kumari. D.W.-6 is the father of the adopted girl child Kusum @
Kaushalya Kumari. He also belongs to Yadav Community. D.W.-7
Bharat Ladwain, maternal grandfather of Kusum Kumari @ Kaushalya
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Kumari. He has also failed to prove the actual ceremony of adoption of
Kusum Kumari @ Kaushalya Kumari. D.W.-9 Arjun Prasad Yadav is an
advocate and scriber who drafted the deed of adoption but no ceremony
of giving and taking was ever taken in his presence.
12. The learned Trial Court also compared the evidence of plaintiff
witnesses particularly the plaintiff Okhiya Ostain who was not invited at
the time of alleged adoption and had any knowledge about the same. The
learned trial Court further observed that there is no denying fact that the
registered deed of adoption carry statutory presumption that it has been
made in compliance with the provisions of the Act unless the same is
refuted but in the present case the two alleged adoption deeds (exhibit
A/1 and A/2) seems to be forged and fabricated document. Apart from
that there is a document on record that Most. Rani Ostain had once
revoked and cancelled the deed of adoption of defendant No. 1vide
Exhibit C which shows that once Rani Ostain had cancelled the alleged
adoption deed No. 90 dated 6/2/1973. Again, vide Exhibit-D it would
appear that Rani Ostain cancelled the earlier cancellation deed
acknowledging adoption of defendant No. 1. Thus, act suggests that how
there was deliberate attempt of defendants in creating forged documents.
The learned Trial Court further recorded findings that there is practically
no evidence on record to suggest that Rani Ostain had in fact executed
any such deed of adoption on two different occasions. Defendant No. 1
who is the alleged adopted son claims to have put his Left Thumb
Impression over the adoption deed which is absolutely wrong. The
attesting witness (Exhibit A/1) are not the relatives of Rani Ostain rather
they are creatures of defendant. Further there is no evidence to show that
the contents of deed was read over and explained to Rani Ostain as well
as cancellation of the deed by Rani Ostain. Although the plaintiff has not
been able to prove that Rani Ostain just after the adoption married with
another person. But the suspicion circumstances prevailing in execution
of the deeds of adoption similarly Exhibit-C and D also by necessary
implication raises the strong suspicion of the nature of adoption deed and
8 S.A. No. 246 of 2002
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recent survey parcha (Exhibit-E Series) have also not raised its finality. It
appears also that defendants even persuaded the survey authority to
record the name Kaushalya being the adopted daughter of SaligramOsta,
it does not bear the name of Dhodo who also claimed adopted son.
Similarly, Exhibit-F and G are also not supported with connecting
documents which are the orders of criminal proceedings under Section
144 Cr.P.C. Therefore, the learned Trial Court arrived at definite findings
that neither Dhodo Rout nor Kusum Kumari, Defendant No. 1 and
Defendant Nol. 2 are adopted son and daughter of Rani Ostain. As such
both the adoption deeds are forged and fabricated documents conferring
no status of either son or daughter (Defendant No. 1 and 2, respectively).
Accordingly, decided the Issue No. V in favour of the Plaintiff and
against the Defendants.
13. Issue No. II and III were taken together for adjudication. In this
connection, it was held that the recorded raiyat Pairu Osta died behind
him Saligram Osta and Okhiya Ostain (plaintiff). Saligram died leaving
behind his wife Rani Ostain who later remarried therefore the property
belonged to Pairu Osta was inherited by Okhiya Osta as an absolute
owner. She was thus entitled to legal character therefore there is cause of
action for this suit because her title is being obstructed by the forged and
fabricated adoption deeds. Accordingly, the above issues were also
decided in favour of plaintiff.
14. As regards issue no. IV, the learned Trial Court considered the
plea taken by the defendants that the ExhibitC (cancellation deed) was
filed by the plaintiff. Exhibit E and E/3 Survey Parcha, Exhibit- F and G
which are between the period of 1973 – 1989 clearly goes to say the
knowledge of adoption to the plaintiff but she did not institute the suit
for cancellation of adoption deed and her plea that she came to know
about said adoption in the month of April is absolutely wrong therefore
suit is barred by limitation under Article 56 and 57 of the Limitation Act,
in this regard, the learned trial Court specifically observed that when
plaintiff applied for adoption deeds in the year 1996, she also obtained
9 S.A. No. 246 of 2002
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the copy of the Exhibit C (cancellation deed). The other documents
relied upon by defendants Exhibit E series, F and G are not sufficient to
impute any knowledge of adoption to the plaintiff. No cross examination
has been made towards those documents with the plaintiff while she was
examined before the Court. Therefore, it cannot be said that the suit is
time barred. On the basis of decision on four issues, the issue No. I and
VI were also decided in favour of plaintiff and the suit was decreed.
15. Before the First Appellate Court vide Title Appeal No. 01 of 2000
preferred by the Defendants, the learned Appellate Court reconstructed
following issues for adjudication of the Appeal:-
I Is the suit as framed maintainable ?
II Has the plaintiff valid cause for action for the suit?
III Are the appellants No. 1 and 2 adopted son and daughter
respectively of Rani Ostain and the registered deeds of adoption
legal, valid and operative?
IV Is the suit barred by law of limitation?
16. The learned First Appellate Court has taken the Issue No III to be
decided at first without recording any deferring views as regards
surrounding suspicious circumstances around the execution of two
registered deeds of adoption by influencing the adoptive mother Rani
Ostain. The First Appellate Court on the basis of oral evidence of the
plaintiff and the documentary evidence (Exhibit 1) regarding remarriage
of Rani Ostain arrived at finding that Rani Ostain was never remarried
and the two deeds of adoption has been executed after death of her own
son and daughter namely Neelkanth and Binda Devi. It was also
observed that as per adoption of son (Exhibit A/1) also it is mentioned
that adoptive mother Rani Ostain was issueless at the time and for
religious purpose she has taken a son from Ram Rout his son namely
Dhodho Raut aged about 6 years in adoption with consent of his wife.
The adoption ceremony was also held on 06.02.1973 and the son was
renamed as Belu Thakur. It was also held by learned First Appellate
Court by perusal of Exhibit B/3 adoption of girl child Kusum Kumari
10 S.A. No. 246 of 2002
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that one Janardan Prasad Yadav after performing adoption ceremony on
16.09.1978 has given in daughter in the lap of Rani Ostain. The learned
Appellate Court has further taken into notice that Exhibit C executed by
Most. Rani Ostain vide deed No. 225 dated 16.05.1973 and canceled the
adoption deed in respect of adopted child Belu Thakur but again by
executing Exhibit D vide deed No. 390 dated 28.07.1973 the original
adoption deed (Exhibit A/1) in respect of son Belu Thakur has been
restored by cancelling the Exhibit C. Therefore adoption was not
performed in haste keeping the family members in dark. The learned
Appellate Court also took into notice that from Exhibit E/1 it is apparent
that appellant No. 1 and 2 have also been recorded in the recent survey
settlement for the land of Pairu Osta. As regards adoption of girl child
the testimony of her father D.W.-6 namely Janardan Prasad Yadav has
been relied upon along with Exhibit -B. Accordingly arrived at define
findings that giving and taking ceremony of both the adopted child has
been proved and the plaintiff has not been able to rebut the factum of
valid adoption of appellant No. 1 and 2 by the Rani Ostain.
17. The Learned First Appellate Court has taken the rest of the issues
No. I, II and IV together for adjudication and recorded findings that the
claim of the plaintiff that she came to know about the execution of
adoption deeds in the April, 1996 and filed the suit on 02.06.1997 cannot
be entertained in view of the fact that just after the adoption plaintiff had
filed a Revenue Misc. Case (Exhibit F) against the Rani Ostain in which
Rani Ostain filed her show cause mentioning the fact of adoption.
Similarly, another Cr. Misc. Case (Exhibit-G) for the proceeding under
Section 144 Cr. P.C., the plaintiff was also one of the parties in the
column of second party wherein Rani Ostain had claimed about the
appellant No. 1 as her adopted son. Therefore, the plaintiff had full
knowledge about the execution of Exhibit A/1. Therefore, there was no
valid reason to entertain such type of plea about no knowledge of the
execution of adoption deeds. Learned trial court has failed to appreciate
the above documentary evidence on technical grounds that the original
11 S.A. No. 246 of 2002
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petition and Vakalatnama of the plaintiff was not filed and such questions
were not put to the plaintiff in her cross-examination, therefore, the suit
of the plaintiff is barred by law of limitation. Accordingly, she had no
valid cause of action and the suit was also found not maintainable. In
result, the judgment and decree passed by the Learned Trial Court was
set aside by the Learned First Appellate Court and the Appeal was
allowed on contest with cost.
18. The instant Second Appeal preferred by the daughter of original
plaintiff namely Sanicharia Devi which was admitted vide Order dated
01.05.2003 on following substantial questions of law:-
(i) Whether deed of adoption was conclusive to prove the
factum of adoption?
(ii) Whether if the factum of adoption was challenged, it was
necessary to be established by oral testimony of the witnesses who
were present at the relevant time?
In the course of argument, both the parties have raised the
question of limitation in filing the suit. The learned Trial Court has
decided the issue of limitation in favour of plaintiff and found the suit
within time from the date of knowledge of the alleged execution of
adoption deeds but the learned First Appellate Court has taken a different
view on the basis of the same evidence and found the suit of the plaintiff
was barred by law of limitation. Therefore, another substantial question
of law is also formulated as under:-
“Whether the suit of the plaintiff is barred by law of limitation?
19. Before proceeding to adjudicate the substantial questions of law, it
is desirable to extract the relevant provisions of Hindu Adoption and
Maintenance Act, 1956 for proper appreciation of the case which are as
under:-
“5. Adoptions to be regulated by this
Chapter. —
(1)No adoption shall be made after the
commencement of this Act by or to a Hindu
except in accordance with the provisions
contained in this Chapter, and any adoption12 S.A. No. 246 of 2002
2025:JHHC:25872made in contravention of the said provisions
shall be void.
(2)An adoption which is void shall neither
create any rights in the adoptive family in
favour of any person which he or she could
not have acquired except by reason of the
adoption, nor destroy the rights of any person
in the family of his or her birth.
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.”
“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
precedingproviso.”
“8. Capacity of a female Hindu to take in
adoption.―Any female Hindu who is of sound
mind and is not a minor has the capacity to
take a son or daughter in adoption:
Provided that, if she has a husband living, she
shall not adopt a son or daughter except with13 S.A. No. 246 of 2002
2025:JHHC:25872the consent of her husband unless the husband
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.”
“9. Persons capable of giving in
adoption.―(1)No person except the father or
mother or the guardian of a child shall have
the capacity to give the child in adoption.
(2) 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 a court of
competent jurisdiction to be of unsound
mind.]
(3)* * * * *
(4) 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.
(5) Before granting permission to a guardian
under sub-section (4), the court shall be
satisfied that the adoption will be for the
welfare of the child, due consideration being
for this purpose given to the wishes of the
child having regard to the age and
understanding of the child and that the
applicant for permission has not received or
agreed to receive and that no person has
made or given or agreed to make or give to
the applicant any payment or reward in14 S.A. No. 246 of 2002
2025:JHHC:25872consideration of the adoption except such as
the court may sanction.
Explanation.―For the purposes of this
section―
(i) the expressions “father” and “mother” do
not include an adoptive father and an
adoptive mother;
(ia) “guardian” means a person having the
care of the person of a child or of both his
person and property and includes―
(a) a guardian appointed by the will of the
child’s father or mother, and
(b) a guardian appointed or declared by a
court; and
(ii) “Court” means the city civil court or a
district court within the local limits of whose
jurisdiction the child to be adopted ordinarily
resides.”
“10. Persons who may be adopted.―No
person shall be capable of being taken in
adoption unless the following conditions are
fulfilled, namely:―
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless
there is a custom or usage applicable to the
parties which permits persons who are
married being taken in adoption;
(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.”
“11. Other conditions for a valid
adoption.―In every adoption, the
followingconditions must be complied with:―
(i) if the 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;
15 S.A. No. 246 of 2002
2025:JHHC:25872
(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 dattahomam
shall not be essential to the validity of an
adoption.”
“12. Effects of adoption.―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 the 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
bythe adoption in the adoptive family:
Provided that―
(a) the child cannot marry any person whom
he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted
child before the adoption shall continue to16 S.A. No. 246 of 2002
2025:JHHC:25872vest in such person subject to the obligations,
if any, attaching to the ownership of such
property, including the obligation to maintain
relatives in the family of his or her birth;
(c) the adopted child shall not divest any
person of any estate which vested in him or
her before the adoption.”
….
“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.”
20. The overall factual spectrum of the case would reveal that two
adoption deeds are challenged in this case allegedly executed by an
illiterate lady after death of her son.
21. Admittedly the adoption of daughter (defendant No. 2) Kaushalya
Kumari is purported to have haven executed in the year 1978 although
admittedly at that time Rani Ostain had her own daughter Binda Devi
who died in the year 1980.
22. The oral evidence of defendant particularly reliance placed on
documentary evidence Exhibit C, D, E (series), F and G goes to show
that the original adoption deed of 6.2.1973 in favour of Defendant No. 1
was cancelled by the adoptive mother Rani Ostain with specific
allegation that she was brought to registry office by the father of the
alleged child to execute Bhugatbandha of some land in stead of that she
was kept in dark and a Godnama was executed. Again Exhibit-D shows
that the cancellation deed Exhibit-C was cancelled retracting the story
contains in Exhibit-C. Exhibit -E copy of Khatiyan dated 28.07.1988 in
respect of lands pertaining to Khata No. 85 Okhiya Ostain’s name has
been removed as Khata Holder having one share along with Most. Rani
17 S.A. No. 246 of 2002
2025:JHHC:25872
Ostain (sister-in-law of Okhiya Ostain). Exhibit E/1 (Khata No. 20, the
name of Okhiya Ostain (plaintiff) has also been mentioned) shows that
along with name of Rani Ostain in the carbon copy of Khatiyan dated
10.06.1988 the name of adopted son Belu Thakur and Kaushalya Kumari
daughter of Saligram Osta has been mentioned. Exhibit E/2 is also
certified copy of Khatiyan dated 10.06.1988 in respect of lands
pertaining to Khata No. 21.
23. Therefore, adopted son and daughter who have no vested right in
the landed property of the adoptive mother and father only by virtue of
registration of adoption deeds, no legal transfer by the adoptive mother
of any landed property belonging to her has been effected but under
influence of guardians of adoptive child the name of adopted children
has been included in the Khatiyan. The right of inheritance is available to
the adopted children after death of adoptive mother and father as the case
may be unless otherwise disposal of property has been made.
24. In the above background of this case, it shows the history of
adoption of defendant No. 1 and 2. The learned trial Court at the very
inception of deciding the Issue No. V relied upon two decisions of
hon’ble Apex Court in “Addagada Raghavamma & Anr. Vs. Addagada
Chenchamma & Anr., AIR 1964 SC 136″ and “Kishori Lal vs. Mst.
Chaltibai, AIR 1959 SC 504″ and on the basis of principles laid down
in Kashi Nath Rai vs. Mahadeo Rai & Ors, AIR 1977 PATNA 199
regarding necessity of proving “the giving and taking ceremony” is
essential to the validity of an adoption placed the burden of proof of
adoption on defendants. On the other hand, the learned First Appellate
Court has acted upon only on the basis of contents of adoption deeds and
oral testimony of witnesses examined by the defendants and failed to
controvert the initial suspicion against the adoption deeds entertained by
the learned trial Court on the basis of evidence available on record.
Therefore, not meeting the reasonings of the trial Court while deciding
the issue no. V corresponding to Issue No. III settled by learned First
Appellate Court.
18 S.A. No. 246 of 2002
2025:JHHC:25872
25. In view of the above, I have to discuss some principles of law
propounded by the Hon’ble Supreme Court regarding burden of proof in
the case of adoption as well as the first and second substantial questions
of law i.e. (i) Whether deed of adoption was conclusive to prove the
factum of adoption? and(ii)Whether if the factum of adoption was
challenged, it was necessary to be established by oral testimony of the
witnesses who were present at the relevant time?
26. In the case of Rahasa Pandiana (dead) by a LRS vs. Gokul
Nanda Panda, AIR 1987 SC 962, the Hon’ble Apex Court observed that
since the adoption divert the normal and natural course of succession, the
Court must be extremely alert and vigilant to guard against be ensnared
by schammers who indulged in unscrupulous activities. If there are any
suspicious circumstances, the burden is on one who claims to have been
adopted to dispel the same beyond reasonable doubt. In a case of an
adoption which is not supported by a registered document or any other
evidence of a clinching nature if there exists suspicious circumstances,
the same must be explained to the satisfaction of the conscience of the
Court by the party contending that there was an adoption.
27. In Pentacota Satynarayna & Ors. vs Pentakota Seethavatnam &
Ors., AIR 2005 SC 4362. The Apex Court referred to the heavy onus that
lies upon a person who stays out of a case for adoption and observed that
while considering the question whether an adoption is genuine or not, the
pro-pounder is obliged to dispel the cloud of suspicion and must satisfy
the conscience of the Court about such an adoption.
28. In the instant case, the defendants have relied upon registered
deed of adoption, the cancellation of which through registered document
(although not recognized under law) by the executor of the said adoption
deed namely Rani Ostain (Exhibit-C) has been proved by the defendants
himself wherein it is mentioned that she has not executed adoption deed
rather she went along with father of alleged adopted child to mortgage
her land. Hence, under what circumstances the adoption deed was
cancelled by the adoptive mother. Again, a deed of cancellation of the
19 S.A. No. 246 of 2002
2025:JHHC:25872
Exhibit C earlier cancellation deed was again cancelled by the executor
Rani Ostain (adoptive mother) (Exhibit D). These circumstances clearly
lead to the conclusion that Rani Ostain was persistently influenced by the
father of natural birth of defendant No. 1 or other unscrupulous persons,
who were indulged in grabbing the property of Rani Ostain after death of
her husband and son. Therefore, presumption under Section 16 of the Act
about genuineness of the registered document of an adoption stands
rebutted and appears to be a suspicious document motivated with a view
to grab the property dismantling the natural course of succession of the
plaintiff.
29. In the instant case, the evidence of witnesses examined by
defendants goes to show that in spite of adoption of the defendant No. 1
(son), he always remained in connection with his family of natural birth.
He is by caste Yadav and also married in Yadav Community and most of
the time his living was with natural family. Even after death of his
alleged adoptive mother, resides with his natural family. This also
implies that there was no actual giving and taking of the defendant No. l
to his adoptive mother in contravention of provision of Section 11(6) of
the Hindu Adoption and Maintenance Act, 1956.
30. The oral testimony of witnesses examined by defendants have
also failed to prove the essential ceremony of giving and taking of the
adopted child as discussed in the learned Trial Court Judgment.
31. From the aforesaid discussion and reasons, I arrived at definite
conclusion that mere registration of adoption deed is not conclusive
evidence of factum of adoption of the presumption of law raised under
Section 16 of the Hindu Adoption and Maintenance Act. This
presumption is rebuttable. The general principle for challenging the
adoption lies on the plaintiff. But it is also settled law that in case of
suspicious circumstances under which the adoption deed was executed
which has tendency to displace the natural course of succession, the
burden lies on the propounder of the deed of adoption or any person
who is claiming any right on the basis of adoption. The learned First
20 S.A. No. 246 of 2002
2025:JHHC:25872
Appellate Court has committed serious error of law by relying solely on
the contents of adoption deeds involved in this case in order to prove the
factum of adoption and without analyzing the oral testimony of
witnesses examined by defendants, has found the two adoption deeds to
be genuine and operative although it is proved beyond doubt that the
adoptive mother Rani Ostain was all along under influence of some
unscrupulous person including the father of defendant No. 1 Belu Thakur
(adopted son). The cancellation deed was also registered by the Rani
Ostain (Exhibit C). As regards the nature of adoption deed it was denied
by her and her signature was obtained on execution of usufructuary
mortgage of her lands just after the adoption, correction in revenue
records were also sought including the name of adopted children also
shows influential character committed with grabbing the property of
Rani Ostain. Rani Ostaine also herself claimed to be deaf lady and she
was brought to registry office by the Ram Raut (biological father of the
Belu Thakur) on 06.02.1973 for execution of mortgage because she was
in need of Rs. 100 lather on she heard HALLA that Ram Raut had got
adoption deed executed in respect of his son in the name of Rani Ostain.
She has denied any giving and taking of the child or she has ever
executed any document of adoption and while cancelling the Exhibit D
stated reasons that on 31.03.1973 one Ganga Osta brought her to Dumka
Registry Office for executing Bhugatbandha (usufructuary mortgage) for
her land and got her signature and actually got the adopted deed
cancellation document.
32. It is also a fact that as per the contents of plaint, daughter of Rani
Ostain namely Binda Devi was married and died issueless in the year
1980 hence the adoption of girl child which was in the year 1978 is also
in contravention of law and hit by Section 11(ii) of the Hindu Adoption
and Maintenance Act, 1956. Both the adopted children had maintained
their nexus with the family of origin i.e. their biological parents which
also reflects the suspicious circumstances.
33. Therefore I am of the firm view that the learned Trial Court has
21 S.A. No. 246 of 2002
2025:JHHC:25872
very wisely and aptly scrutinized and evaluated the overall points in the
light of the evidences adduced by the parties while deciding the main
issues involved in this case regarding validity of the adoption deeds and
with sound reasons arrived at the right conclusion but the learned First
Appellate Court without meeting out the reasoning of the learned Trial
Court has taken a superficial view beyond the evidence available on
record which is just on conjecture and surmises therefore findings
recorded by learned trial court is hereby affirmed and the first appellate
Court is set aside.
34. So far as another substantial question of law i.e. question of
limitation is concerned, the learned Trial Court has decided in favour of
plaintiff but the same has been reversed by learned First Appellate Court.
It appears that the plea of defendants was that suit is barred by law of
limitation in view of the Exhibit E (Series), F and G. Exhibit- F is C/C of
Order dated 8.4.74 passed in Revenue Misc. No. 34/73-74 of the Court
of the S.D.O. Dumka and Exhibit-G (C/C of order dated 18.9.1973 of the
Court of S.D.O, Dumka passed in Crl. Misc. Case No. 250/1973). There
was a plea of Rani Ostain that she had taken an adopted child of one
Ram Raut. It is also mentioned that she is a widow and one Sambhu
Kapri putting under threat and inducing her and adamant to grab all
properties of her. No copy of objection filed by the Rani Ostain has been
adduced in evidence. Similarly, Exhibit G is a certified copy of order
passed under Section 144 Cr. P.C. in Crl. Mis. Case No. 250/1973 which
shows that in the name of parties, in the column of second party, Sl. No.
8 original name is Lakhiya Osta son of Pairu Osta which has been erased
and name of Okhiya Ostain has been inserted which has not been
explained by the Defendants moreover in which documents also copy of
application filed by the applicant Rani Ostain and any copy of adoption
deed in that proceeding has also not been brought on record. The plaintiff
Okhiya Ostain was examined as a witness P.W-1 and cross-examined by
defendants but attention has not been drawn towards Exhibit E, F and G
and the certified copy of such document has also not been filed to impute
22 S.A. No. 246 of 2002
2025:JHHC:25872
the knowledge of execution of adoption deed which was itself cancelled
by her twice vide Exhibit C and D. There is specific pleading and
evidence of the plaintiff that she got knowledge of the execution of two
adoption deeds in the month of April, 1996 and from that date within
three years she has filed the suit. The learned trial Court has considered
the above aspects on different angle but has rightly decided the issue in
favour of plaintiff.
35. The documents relied upon by the defendants to show the
knowledge of the plaintiff in absence of the production of relevant
documents and without drawing the attention on those documents during
plaintiff’s (P.W.-1) cross-examination cannot be taken against her.
Therefore, the findings of learned Trial Court on issue No. IV regarding
bar of limitation in institution of the suit appears to be reasonable and the
reasons recorded by first appellate Court does not appear to be sound
hence set aside.
36. The judgment of appellate Court must reflect its conscious
application of mind and record findings supported by reasons. In this
context, the Hon’ble Apex Court in the case of Santosh Hazari vs.
Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 held as
under:-
“……the appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. First appeal is a valuable right of the
parties and unless restricted by law, the whole
case is therein open for rehearing both on
questions of fact and law. The judgment of the
appellate court must, therefore, 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……………….while
reversing a finding of fact the appellate court
must come into close quarters with the
reasoning assigned by the trial court and then
assign its own reasons for arriving at a23 S.A. No. 246 of 2002
2025:JHHC:25872different finding. This would satisfy the court
hearing a further appeal that the first
appellate court had discharged the duty
expected of it………..”
37. In view of the above discussions and reasons, this appeal is
allowed, judgment and decree passed by the learned Trial Court is
restored and the judgment of reversal passed by Learned Fist Appellate
Court is set aside.
38. Pending I.A.s if any, stands disposed of.
39. Let a copy of this judgment along with the trial/appellate court
record be sent back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court
Dated 28/08/2025
Basant/A.F.R.
24 S.A. No. 246 of 2002
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