# Munder v. D.D.C. & Ors

- **Citation:** (2024) 5 ILRA 2322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-23
- **Case number:** Writ-B No. 2714 of 1982
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munder-v-d-d-c-ors-52069
- **Pages:** 7

## Headnote

A. Registration Act, 1908 - Sections 171(b)
& 35 - Transfer of Property Act, 1882 -
Section 54 - Adoption deed - Adoption
deed is not the sale, hence Section 54 of
the T.P. Act, is not applicable - Provisions
of
Registration
Act,
1908,
is
not
applicable, as the adoption deed is not a
transaction or declaration of any transfer
of property. Adoption is a devolution and
not a transfer of the property of the
adoptee. From the date of adoption, all the
ties of the adopted child in family of his or
her birth shall be deemed to be severed.
On
adoption,
the
adoptee
gets
transplanted in the family in which he is
adopted with same rights as that of a
natural born child. (Para 20)

B. Consolidation of Holdings Act, 1953 -
Section 9A(2) - Belated objection to
adoption deed. Land of Abhilakh was
inherited by Bhonu through an adoption
deed dated 15.05.1931. The petitioner, in
1972, challenged the deed's validity, on the
ground that it was neither stamped nor
registered. The petitioner did not dispute
the execution of the deed itself. Held:
Adoption deeds executed before 1951 did
not require registration. The objection
raised 45 years later, without challenging
the 1934 mutation order, is impermissible.
Petition dismissed. (Para 23)

Dismissed. (E-5)

List of Cases cited:

## Text

2322 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-Section 1 of Section 35 of the Code.
Section 207 of the Code provides for an
appeal by any party aggrieved by final
order or decree passed in a suit, application
or proceedings specified in column 2 of the
Third Schedule, may prefer a first appeal to
the Court or officer specified against it in
Column 4, where such order or decree was
passed by a Court or officer specified
against it in Column 3 thereof.

39. From the perusal of the Third
Schedule, it is clear that in mutation cases,
against an order passed by the Tehsildar, the first
appeal has to be filed before the Sub-Divisional
Officer. Thus, in my view, there is no illegality
in filing an appeal under Section 207 of the
Code, merely mentioning of a section whether
Section 207 or Section 35(2) of the Code will
not make any difference as both the sections
provide for filing an appeal against the orders
passed by Tehsildar in mutation cases.

40. In the facts of the case, since the
petitioner has got herself transferred the appeal,
by moving a transfer application before the
Commissioner from the court of S.D.M.,
Mauranipur to S.D.M., Jhansi and further she
has taken objection as to jurisdiction only at the
time of final hearing while submitting the
written submissions, this plea is not open for the
petitioner to be raised either before the
revisional court or before this Court. Further the
petitioner has also failed to demonstrate that any
failure of justice has occurred because of
entertainment of appeal by the S.D.M., Jhansi
or by the S.D.M.,Mauranipur. Since the
property in dispute was situated in Tehsil-
Mauranipur, though the order in mutation
proceedings were passed by the Tehsildar-
Garautha as the mutation case was transferred
to the court of Tehsildar- Garautha, part of cause
of action was there for the respondent no. 5 to
file an appeal before the S.D.M., Mauranipur.
Thereafter, the appeal was transferred to the
court of S.D.M., Jhansi on an application
moved by the petitioner herself and ultimately
the appeal was decided by the S.D.M.,
Jhansi. From the perusal of the orders
impugned i.e. the appellate order as well as the
revisional order, it appears that though, the
petitioner has taken objection before the
appellate court in the written submissions and
before the revisional court in paragraph no. 18
of the memo of revision, but the same has not
been pressed by the petitioner either before the
appellate court or before the revisional court as
there is no mention of such objection being
taken by the petitioner in the judgment. Even in
the writ petition there is no averment by the
petitioner that the objection which was taken by
the petitioner was pressed before the appellate
court as well as before the revisional court and
the same has not been considered by the courts
below.

41. In view of the same, I am of the
opinion that the appellate court as well as the
revisional court have committed no
illegality in not considering the plea of
the petitioner that the appeal was not
maintainable before S.D.M., Mauranipur
or Jhansi and it was only maintainable
before the S.D.M., Garautha.

42. Accordingly, the writ petition fails
and is dismissed.
----------
(2024) 5 ILRA 2322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-B No. 2714 of 1982

Munder ...Petitioner
Versus
D.D.C. & Ors. ...Respondents
5 All. Munder Vs. D.D.C. & Ors.
2323
Counsel for the Petitioner:
R.S. Pandey, Ankit Pande, Dr. Ramsurat Pande,
P.C. Ararwal

Counsel for the Respondent:
C.S.C., Edward Sam Julius Paul, Panna Lal
Gupta, T.N. Gupta

A. Registration Act, 1908 - Sections 171(b)
& 35 - Transfer of Property Act, 1882 -
Section 54 - Adoption deed - Adoption
deed is not the sale, hence Section 54 of
the T.P. Act, is not applicable - Provisions
of
Registration
Act,
1908,
is
not
applicable, as the adoption deed is not a
transaction or declaration of any transfer
of property. Adoption is a devolution and
not a transfer of the property of the
adoptee. From the date of adoption, all the
ties of the adopted child in family of his or
her birth shall be deemed to be severed.
On
adoption,
the
adoptee
gets
transplanted in the family in which he is
adopted with same rights as that of a
natural born child. (Para 20)

B. Consolidation of Holdings Act, 1953 -
Section 9A(2) - Belated objection to
adoption deed. Land of Abhilakh was
inherited by Bhonu through an adoption
deed dated 15.05.1931. The petitioner, in
1972, challenged the deed's validity, on the
ground that it was neither stamped nor
registered. The petitioner did not dispute
the execution of the deed itself. Held:
Adoption deeds executed before 1951 did
not require registration. The objection
raised 45 years later, without challenging
the 1934 mutation order, is impermissible.
Petition dismissed. (Para 23)

Dismissed. (E-5)

List of Cases cited:

1. Suraj Lamp & Industries Pvt Ltd Vs St.of Har.
& anr., SLP (C) No. 13917 of 2009, reported in
2011 (29) LCD 2083

2. Mohammed Akram Husain & anr. Vs Brij Nath
& anr. in Civil Misc. Writ Petition No. 674 of
2005, 2007 (25) LCD 11
3. Vinod Kumar & ors. Vs Sudha Land Ventures
& Homes Pvt. Ltd, First Appeal from Order No.
2222 of 2015.

4. Yellapu Uma Maheswari & anr. Vs Buddha
Jagadheeswararao & ors., in Civil Appeal No.
8441 of 2015 (Arising out of Special Leave
Petition (Civil) No. 12788 of 2014.

5. Ramnath Singh & anr. Vs D.D.C. reported in
[2014(32) LCD 659].

6. Lal Behari vs. Ram Adhar; 1985 LCD 415

7. A. Raghavamma & anr. Vs A. Chenchamma &
anr., Civil Appeal No. 165 of 1961, reported in
1964 AIR (Supreme Court) 136

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard learned counsel for
petitioner, Shri Panna Lal Gupta, learned
counsel for respondent no. 4 as well as Shri
Hemant Kumar Pandey, learned State Counsel.

2. The present writ petition has
been preferred for quashing of the impugned
Revisional order dated 27.01.1982 passed by
respondent no. 1 i.e. Deputy Director
Consolidation, the impugned appellate order
dated 17.07.1979 passed by respondent no. 2
i.e.
Assistant
Settlement
Officer
Consolidation and the judgment and order
dated 03.10.1978 passed by respondent no. 3
i.e. Consolidation Officer.

3. During the pendency of present
writ petition, the petitioner Munder had
expired and in his place, his legal heirs have
been substituted and they will be addressed as
petitioners. Similarly, after the demise of
respondent no. 4, Bhonu, his legal heirs have
been substituted and they will be addressed as
respondents.

4. Learned counsel for petitioner
has submitted that Raghunandan had five
2324 INDIAN LAW REPORTS ALLAHABAD SERIES
sons namely Abhilakh, Kabbil, Badri,
Cheekhur and Ram Narayan. Abhilakh was
issueless, Kabbil has three sons namely
Bhonu, Ram Saran and Ram Samujh.
Bhonu is respondent no. 4 in the present
writ petition. Badri has one son Munder i.e.
the petitioner in the present writ petition.
For the rest, it is not necessary to mention
as they are not party to the dispute.

5. It is further submitted that after
the demise of Abhilakh (issueless), the
uncle of the petitioner, the petitioner has a
right in the property of Abhilakh.

6. It is further submitted that the
land/property of Abhilakh was inherited by
Bhonu alleging himself as an adopted son
of Abhilakh by adoption deed dated
15.05.1931.

7. The petitioner filed an objection
under Section 9A(2) of the Consolidation
and Holdings Act, 1953 (hereinafter
referred as Act, 1953) when the village had
come under Consolidation in the year 1972
by moving an application on 17.07.1978
and raised an objection regarding the
validity of the adoption deed dated
15.05.1931 on two counts, firstly, the
adoption deed was not stamped and
secondly it was not registered. The said
objection was rejected by the Consolidation
Officer by its judgment and order dated
03.10.1978, against which the petitioner
had preferred an appeal which was also
dismissed by impugned judgment and order
dated 17.07.1979. Against the appellate
order, the petitioner preferred a revision
which was also dismissed by impugned
judgment and order dated 27.01.1982,
hence, the present writ petition has been
preferred.

8. It is further submitted that the
adoption deed is mandatorily required to be
registered for the reason that by the said
adoption deed, the immovable property was
going to be transferred in favour of
respondent no. 4 Bhonu which is of the
value of more than 100 Rupees, as required
under Section 54 of the Transfer of Property
Act, 1882 in which it has been provided that
in the case of tangible immovable property
of a value less than one hundred rupees,
such transfer may be made either by a
registered instrument or by delivery of the
property. Here, the transaction by the
adoption deed is more than hundred rupees.
In support of his submission, learned
counsel for petitioner has placed reliance
upon the judgment of Hon'ble Supreme
Court in the Case of A. Raghavamma and
another versus A. Chenchamma and
another, Civil Appeal No. 165 of 1961,
reported in 1964 AIR (Supreme Court)
136.

9. It is further submitted that as per
Section 17(b) of the Registration Act, 1908,
which provides that documents of which
registration is compulsory and sub-section
1(b) of Section 17, provides that other nontestamentary instruments which purport or
operate to create, declare, assign, limit or
extinguish, whether in present or in future,
any right, title or interest, whether vested or
contingent to or in immovable property and
Sub-Section provides any other instrument
required by law for the time being in force,
to be registered and the effect of nonregistration has been provided under
Section 49 of the Registration Act, 1908,
that document will not be admissible in
evidence. In support of his submission,
learned counsel for petitioner has placed
reliance upon the judgments quoted below:-
5 All. Munder Vs. D.D.C. & Ors.
2325
(1) Suraj Lamp & Industries Pvt
Ltd versus State of Haryana and another,
SLP (C) No. 13917 of 2009, reported in
2011 (29) LCD 2083.
(2) Mohammed Akram Husain
and another versus Brij Nath and another
in Civil Misc. Writ Petition No. 674 of
2005, reported in 2007 (25) LCD 11.
(3) Vinod Kumar and others
versus Sudha Land Ventures and Homes
Pvt. Ltd, First Appeal from Order No.
2222 of 2015.

(4) Yellapu Uma Maheswari and
another
versus
Buddha
Jagadheeswararao and others, in Civil
Appeal No. 8441 of 2015 (Arising out of
Special Leave Petition (Civil) No. 12788 of
2014.

10. It is further submitted that
Section 35 provides that the instruments not
duly stamped are inadmissible in evidence
and in the present case, the adoption deed
executed on 15.05.1931 was neither
registered nor stamped as per the provisions
of the Act, hence it could not be admissible
evidence and on the basis of which any
judgment and order passed in favour of
respondent no. 4 is a nullity and liable to be
quashed.

11. On the other hand, learned
Standing Counsel and Shri Panna Lal
Gupta, learned counsel for respondent no. 4
have submitted that the submission made
by learned counsel for petitioner relying
upon provisions of different acts are not
applicable in the present case as the
adoption deed was executed on 15.05.1931.
At that time, the registration was not
mandatory and it had come by amendment
in the year 1977, in the Hindu Adoptions
and Maintenance Act, 1956.

12. Learned Standing Counsel has
further submitted that it is a devolution of
property and not the transfer of property. In
support of his submission, he has relied
upon following judgments quoted below:-

(1) Raj Kumar Saxena versus
Basic Shiksha Parishad, U.P. and others,
in Civil Misc. Writ Petition No. 66944 of
2006.
(2) Ravindra Kumar versus State
of U.P. and others, in Writ A No. 40700 of
2014.

13. After hearing learned counsel
for the parties, going through the records of
the case and the judgments relied upon by
the learned counsels for the parties,
existence
of
adoption
deed
dated
15.05.1931 is not disputed between the
parties. The petitioner filed his objections
on 17.07.1978, before the Consolidation
Officer challenging the validity of the
adoption deed as it was neither registered
nor stamped. In support of his submission,
learned counsel for petitioner has submitted
that the adoption deed was required to be
registered and stamped and has drawn
attention of this Court to Section 54 of the
Transfer of Property Act, 1882, which is
quoted hereinbelow:-

'Section 54:- ''Sale'' is a transfer of
ownership in exchange for a price paid or
promised or part-paid and part-promised.
Such transfer, in thte case of
tangible immovable property of the value of
one hundred rupees and upwards, or in the
case of a reversion or other intangible
thing, can be made only by a registered
instrument.
In the case of tangible immovable
property of a value less than one hundred
rupees, such transfer may be made either
2326 INDIAN LAW REPORTS ALLAHABAD SERIES
by a registered instrument or by delivery of
the property.'

14. A perusal of Section 54 of the
Transfer of Property Act, 1882, which is
very clear and there is no ambiguity and is
defining the word 'sale' i.e. transfer of
ownership in exchange for a price paid or
promised. The adoption deed is not the sale,
hence Section 54 of the Transfer of
Property Act, 1882 relied by the learned
counsel for petitioner is not applicable in
the present case. Placing reliance by
learned counsel for petitioner on Section 17
(1)(b) and 17(1)(f) to establish his case that
registration of the adoption deed is
compulsory is quoted hereinbelow:-

Section 17 Documents of which
registration is compulsory
Section
17(1)
The
following
documents shall be registered, if the
property to which they relate is situate in a
district in which, and if they have been
executed on or after the date on which, Act
XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871,
or the Indian Registration Act, 1877, or this
Act came or comes into force, namely,
Section 17(1)(b):- other nontestamentary instruments which purport or
operate to create, declare, assign, limit or
extinguish, whether in present or in future,
any right, title or interest, whether vested or
contingent, of the value of one hundred
rupees and upwards, to or in immovable
property;
Section
17(1)(f):-
any
other
instrument required by any law for the time
being in force, to be registered.
15.
The
said
provisions
of
Registration Act, 1908, relied upon by
learned counsel for petitioner is not
applicable in the present case as the
adoption deed is not a transaction or
declaration of any transfer of property.
Adoption deed is a devolution and the said
issue has already been decided by this
Court in the case of Ravindra Kumar and
others versus State of U.P. and others in
Writ A No. 40700 of 2014, wherein it has
been held, that from the bare perusal of
Section 17 of the Registration Act, 1908,
nowhere it has been mentioned that for
adoption deed registration is compulsory.
Compulsory registration of adoption deed
has come into force on 26.01.1951 and
prior to that, there was no such
requirement. This issue has also been
decided by this Court in the case of Raj
Kumar Saxena versus Basic Shiksha
Parishad, U.P and others in Civil Misc.
Writ Petition No. 66944 of 2006, wherein it
has been held, that deed regarding
adoption of petitioner is subsequent to
26.01.1951, consequently, the deed was
required to be compulsorily registered in
the State of Uttar Pradesh and it is an
undisputed case between the parties in the
present case that the adoption deed was
executed on 15.05.1931. The petitioner is
not disputing the execution of adoption
deed but challenging the validity of the
same on the ground that it was neither
stamped nor registered. And as discussed
above, both the things were not required at
the time when adoption deed was executed.

16. The petitioner had not
challenged the order of mutation passed in
the year 1934, in favour of respondent no.
4 under Section 34 of the L.R. Act, 1901
which is also admitted by the counsel for
the petitioner that the name of respondent
no. 4 was entered in the revenue records
and the same was never challenged under
the provisions of either Land Reforms Act,
1950 or in the U.P. Tenancy Act. It is also
admitted by learned counsel for petitioner
that when the U.P.Z.A and L.R. Act, 1950
5 All. Munder Vs. D.D.C. & Ors.
2327
had come into force w.e.f 26.01.1951, the
entry in the name of respondent no. 4 was
intact and the petitioner had not challenged
the entry under the provisions of the Act,
1950. When the village had come under
consolidation in the year 1972, then for the
first time on 17.07.1978 i.e. after about
more than 45 years the validity of the
adoption deed was challenged by the
petitioner in the consolidation proceedings.

17. The judgments relied by the
learned counsel for petitioner are not
applicable in the facts and circumstances of
the present case, as far as the judgment
relied upon by learned counsel for
petitioner in the Case of A. Raghavamma
(supra) quoting paragraph-14 of the said
judgment, that too is not applicable in the
present case for the reason that in
paragraph-14
of
the
judgment,
the
procedure or the custom for adoption was
not followed and it was not on the point that
the adoption deed was neither registered
nor stamped.

18. The judgments relied upon by
learned counsel for petitioner in the case of
Suraj Lamp & Industries Pvt Ltd (supra),
Mohammed Akram Husain (supra) &
Vinod Kumar (supra) deal with validity of
an unregistered sale deed as admissible in
evidence, so all these judgments pertains to
sale deed and not the adoption deed hence
the judgments are not applicable.

19. The other judgment relied by
learned counsel for petitioner in the case of
Yellapu Uma Maheswari (supra) also deals
with agreement to sale and not related to the
adoption deed.

20. The adoption is a devolution
and not a transfer of the property of the
adoptee. The adopted child for all purposes
from the date of adoption, all the ties of the
child in family of his or her birth shall be
deemed to be severed. On adoption, the
adoptee gets transplanted in the family in
which he is adopted with same rights as that
of a natural born child.

21. The law is otherwise as held by
this Court in the case of Lal Behari vs. Ram
Adhar; 1985 LCD 415, wherein this Court
has dismissed the petition wherein the
petitioner was claiming his co-tenancy
rights under the Consolidation proceedings
after 11 years without challenging or
making any claim during the first
settlement and the second settlement.

22. Here, the petitioner has not
raised any objection when the application
under Section 34 of the Land Reforms Act,
1901 was allowed in favour of respondent
no. 4 whereafter, his name was mutated.
Then, the Act, 1950 has come into force on
26.01.1951 and the entry was intact, even at
that time, the petitioner had not challenged
and for the first time after about more than
45 years, in the consolidation proceedings,
the petitioner had raised the objections
regarding the validity of the adoption deed,
cannot be raised at such a belated stage in
the light of the law laid down by this Court
in the case of Ramnath Singh and another
vs. D.D.C. reported in [2014(32) LCD
659].

23. In view of the facts,
circumstances
and
discussion
made
hereinabove, the present writ petition is
devoid of merit and no interference is called
for in the judgments dated 27.01.1982
passed by respondent no. 1 i.e. Deputy
Director Consolidation, the impugned
appellate order dated 17.07.1979 passed by
respondent no. 2 i.e. Assistant Settlement
Officer Consolidation and the judgment
2328 INDIAN LAW REPORTS ALLAHABAD SERIES
and order dated 03.10.1978 passed by
respondent no. 3 i.e. Consolidation Officer.

24. The present writ petition is
dismissed.
----------
(2024) 5 ILRA 2328
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 4151 of 2016

Jagat Pal & Ors. ...Petitioners
Versus
D.D.C. Lakhimpur Kheri & Ors.
 ...Respondents

Counsel for the Petitioners:
Satendra Nath Rai

Counsel for the Respondent:
C.S.C., Ashok Kumar, D.P. Singh

A. Constitution of India,1950 - Article 226
-
While
exercising
discretionary
jurisdiction under Article 226, the High
Court must ensure that justice is done,
equity
is
upheld,
and
injustice
is
eliminated. One of the objectives of equity
is to promote honesty and fair play. If any
unfair advantage has been gained by a
party prior to invoking the jurisdiction of
the High Court, the Court can take into
account such an unfair advantage and
may require the party to relinquish the
gain before granting relief. Court should
not set aside an order that appears to be
illegal if the effect is to revive another
illegal order, as such an action would
perpetuate illegality and confer an undue
benefit on the undeserving party or
person. (Para 9, 14)

B. Civil Law - Compromise - New Right
cannot be created - If a person had no
right under the statute, then in such
position, any such right could not be
recognised or admitted by a compromise
or new right could not be created
throughout compromise or conciliation.

C. U.P. Consolidation of Holdings Rules,
1954,
Rule
25-A
-
Compromise
-
Genuineness of the Compromise - In the
present matter, the claimant, Jagannath
(predecessor-in-interest
of
the
petitioners), failed to prove before the
S.O.C. that Bhawani was the original
tenure holder of the disputed land. No
documents or evidence were placed on
record to establish Bhawani as the original
tenure holder. The division of shares in the
land was not accorded to all legal heirs of
Bhawani, and no justifiable reasons were
provided for the distribution of land solely
between
Jagannath
and
Rambilas,
excluding other heirs. All parties to the
compromise,
including
Rambilas/respondent, were identified by
Sri Triveni Sahai Gupta, Advocate, who
was engaged by the claimant. The
identification
casts
doubt
on
the
authenticity of the compromise. Rambilas
was assaulted by Shrichand (predecessorin-interest of petitioners No. 2 to 7). S.O.C.
failed to record satisfaction regarding the
genuineness of the compromise, including
the legal validity of the agreement
between the parties. Compromise dated
06.03.1979, which forms the basis of the
S.O.C.'s order dated 18.06.1985, was
neither lawful nor genuine.

Dismissed. (E-5)

List of Cases cited:

1. Gadde Venkateswara Rao Vs Govt. of A.P AIR
1966 SC 828

2. Maharaja Chintamani Saran Nath Shahdeo Vs
St. of Bihar AIR 1999 SC 3609;

3. Mallikarjuna Mudhagal Nagappa Vs St. of
Karn. AIR 2000 SC 2976;

4. Chandra Singh Vs St. of Raj. AIR 2003 SC
2889;