# Ram Murat v. D.D.C. Allahabad & Ors

- **Citation:** (2022) 10 ILRA 773
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ-B No. 3449 of 2018
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-murat-v-d-d-c-allahabad-ors-47785
- **Pages:** 14

## Headnote

Law
-
Hindu
Adoption
&
Maintenance Act, 1956 - Section 16 -
Proof of Adoption deed - Under the Hindu
Law, there cannot be a valid adoption
unless the adoptive boy is transferred
from one family to another and that can
be done only by the ceremony of giving
and taking- it is essential to have a formal
ceremony. - law requires that the natural
parent shall hand over the adoptive boy
and the adoptive parent shall receive him
- ceremony of giving and taking is
essential to validate adoption - Indian
Evidence Act, S. 90 - so far as admissibility
of the document being 20 year old under
Section 90 of Evidence Act, 1872 it has
nothing to do with the ceremonies of the
adoption which has to be proved either by
direct evidence or presumption has to be
raised according to the provisions of
774 INDIAN LAW REPORTS ALLAHABAD SERIES
Section
16
of
Hindu
Adoption
and
Maintenance Act (Para 19, 21)

Finding recorded by revisional court on the
admissibility
of
adoption
deed
dated
23.3.1948
cannot
be
sustained
as
the
adoption deed dated 23.3.1948 has no
signature of person giving his child for
adoption - Non-filing of original adoption deed
before Consolidation Officer go against the
respondent nos. 4 to 7 - Continuance of name
of natural father of Hira Lal in Voter List,
Kutumb Register as well as in the registered
sale deed executed by Hira Lal raises
presumption of the fact that adoption deed
set up by Hira Lal is doubtful - Consolidation
Officer and Settlement Officer (Consolidation)
have rightly disbelieved the adoption deed
executed on 23.3.1948 which was basis of
claim of respondent nos. 4 to 7 - Revisional
court exceeded his jurisdiction in reversing
the
order
of
Consolidation
Officer
and
Settlement
Officer
(Consolidation)
and
upholding the adoption deed as valid and
genuine and maintaining the basic year entry
(Para 24)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,952 of 46,456. This is a partial read: ask again with offset=39952 for what follows._

10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
773
under Article 120 and 121 of the Limitation
Act are not applicable in a proceeding
under the U.P.C.H. Act, though provisions
of section 5 of the Limitation Act, 1963 has
been made applicable, for the limited
purposes in proceedings under U.P.C.H.
Act by virtue of Section 53-B of the
U.P.C.H. Act. Therefore, mere furnishing
an information qua death of any party,
along with the details of his heir and legal
representatives, arrayed in the cause title of
any proceeding under U.P.C.H. Act would
be suffice for the purpose of survival of the
cause of action involved in the matter.

18. Learned counsel for the petitioner
has failed to demonstrate as to how he is
prejudiced due to the order passed by the
Settlement Officer of Consolidation in
allowing the substitution or there is any
likelihood of causing miscarriage of justice to
the present petitioner. I do not find any
justifiable ground to interfere in the
impugned orders passed by the Settlement
Officer of Consolidation and the Deputy
Director of Consolidation.

19. Accordingly, the present writ
petition, being misconceived and devoid on
merits, is dismissed with no order as to the
costs.

20. However, before parting the matter,
counsel for both the parties have requested
for issuance of a direction for expeditious
disposal of the appeal pending before the
Settlement Officer of Consolidation.

21. Considering the old matter, the
Settlement Officer of Consolidation, before
whom the appeal is pending, is hereby
directed to decide the appeal expeditiously,
preferably within a period of three months
from the date of production of a certified
copy of this order.

22. It is expected that it should be
decided by reasoned and speaking order, in
accordance with law, after affording
opportunity of hearing to the parties
concerned without granting unnecessary
adjournments.
----------
(2022) 10 ILRA 773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 3449 of 2018

Ram Murat ...Petitioner
Versus
D.D.C. Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sri Kamleshwar Singh, Sri Krishna Kant
Vishwakarma, Sri Rakesh Pande, Sri Rajesh
Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Praveen Chandra Mishra, Sri Ram
Sajiwan Mishra

Hindu
Law
-
Hindu
Adoption
&
Maintenance Act, 1956 - Section 16 -
Proof of Adoption deed - Under the Hindu
Law, there cannot be a valid adoption
unless the adoptive boy is transferred
from one family to another and that can
be done only by the ceremony of giving
and taking- it is essential to have a formal
ceremony. - law requires that the natural
parent shall hand over the adoptive boy
and the adoptive parent shall receive him
- ceremony of giving and taking is
essential to validate adoption - Indian
Evidence Act, S. 90 - so far as admissibility
of the document being 20 year old under
Section 90 of Evidence Act, 1872 it has
nothing to do with the ceremonies of the
adoption which has to be proved either by
direct evidence or presumption has to be
raised according to the provisions of
774 INDIAN LAW REPORTS ALLAHABAD SERIES
Section
16
of
Hindu
Adoption
and
Maintenance Act (Para 19, 21)

Finding recorded by revisional court on the
admissibility
of
adoption
deed
dated
23.3.1948
cannot
be
sustained
as
the
adoption deed dated 23.3.1948 has no
signature of person giving his child for
adoption - Non-filing of original adoption deed
before Consolidation Officer go against the
respondent nos. 4 to 7 - Continuance of name
of natural father of Hira Lal in Voter List,
Kutumb Register as well as in the registered
sale deed executed by Hira Lal raises
presumption of the fact that adoption deed
set up by Hira Lal is doubtful - Consolidation
Officer and Settlement Officer (Consolidation)
have rightly disbelieved the adoption deed
executed on 23.3.1948 which was basis of
claim of respondent nos. 4 to 7 - Revisional
court exceeded his jurisdiction in reversing
the
order
of
Consolidation
Officer
and
Settlement
Officer
(Consolidation)
and
upholding the adoption deed as valid and
genuine and maintaining the basic year entry
(Para 24)

Allowed. (E-5)

List of Cases cited:

1. Shri Jagdamba Prasad (dead) thr. L.R.'s &
ors. Vs Kripa Shankar (Dead) thr. L.R. & ors.,
2014 (124) R.D. 1

2. Ram Udit Vs D.D.C. & ors., 2014 (125) R.D.
627

3. Harihar Vs Deputy Director of Consolidation
Mau & ors. 2015 (127) RD 144

4. Dr. Jeevan Bahadur Samaddar Vs Govind
Charan Samaddar & ors. 2013 (120) RD 717

5. Ram Vrat Tripathi Vs Deputy Director of
Consolidation & ors. 2006 (100) R.D. 581

6. Nathu Ram & ors. Vs Deputy Director of
Consolidation Varanasi & ors. 2017 (136) RD
480

7.
Ram
Dular
Vs
Deputy
Director
of
Consolidation Jaunpur & ors. 1994 RD 290 (SC)
8. Sheshmani and Another Vs Deputy Director of
Consolidation District- Basti U.P. & ors. 2001 RD
210 (SC)

9.Sri Jagdamba Prasad (dead) through LRs &
ors. Vs Kripa Shankar (dead) through LRs & ors.
2014 (124) RD 1 (SC),

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri Rajesh Kumar Singh
along
with
Mr.
Krishna
Kant
Vishwakarma, counsel for the petitioner,
Mr. Ram Sajiwan Mishra, counsel for
Respondent Nos. 4 to 7. Mr. Praveen
Chandra Mishra has put in appearance for
Respondents No. 8 to 18.

2. Briefs facts of the case are that
dispute relates to plots of Khata No. 81
situated in Village- Dewapur, Pergana-
Nawabganj, District- Allahabad. Particulars
of plots of Khata No.81, its area and Basic
Year entry are as follows:-

S.No. Khata
No.
Plots
Nos.
Area
Name
of the
tenure
holder
recor
ded in
Basic
Year
1.
81
52
(Bhumidhari)
5-4-12 Hira
Lal
adopte
d
son of
Ram
Chara
n
2.
81
23 (sirdari)
0-5-0
3.
81
24 (Sirdari)
2-1011
4.
81
55(Sirdari)
0-5-0

Status of revenue entry in C.H. Form
45 in respect to 1st consolidation operation,
are as follows:-
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
775
S.No. Khata
No.
Plots
Nos.
Area
Name of
the
tenure
holder
recorded
in Basic
Year
1.
1
52
(Class1
ka
Bhumi
dhar)
5-4-12
Ram
Charan
son
of
Sheetal,
Ram
Lakhan
(major),
Hira Lal,
(16 year
minor)
guardian
Ram
Lakhan
real
brother,
sons
of
Mahavir
S.No. Khata
No.
Plots
Nos.
Area
(Class2
Sirdar
)
Name of
the
tenure
holder
recorded
in Basic
Year
1.
68
23
0.5.0
Ram
Charan
son
of
Sheetal

24
2.10.11

3. Against the Basic Year Entry, an
objection under section- 9A(2) of U.P.C.H.
Act was filed by petitioner's father Ram
Lakhan with the prayer that he should be
recorded alongwith Hira Lal over plot No.
52 and their share should be recorded as 1⁄2
each. A further prayer was made that sale
deed executed by Hira Lal in favour of the
Mata Prasad in respect to plot no. 52 be
cancelled. In respect to plot Nos. 23, 24 and
25, petitioner's father prayed to record his
name exclusively after expunging the name
of Hira Lal, Father of respondent No.4.

4. Hira Lal son of Ram Charan filed
his written statement and opposed the
objection filed by Ram Lakhan. Hira Lal
claimed the right on the basis of the
adoption deed executed by Ram Charan in
his favour on 23.3.1948.

5. Mata Prasad claimed the right on
the basis of registered sale deed executed
by the Hira Lal in his favour on 5.7.1983 in
respect to 1.0.0 area of plot no. 52 so his
name be recorded in place of Hira Lal.
Ayodhya Prasad and Nanhe Lal claimed the
right on the basis of the registered sale deed
executed on 3.7.1973 by Ram Lakhan in
their favour in respect to 2-12-6 area of plot
no.52.
Accordingly,
Ayodhya
Prasad,
Nanhe Lal (ancestor of respondent nos. 8 to
18) prayed for recording their names after
expunging the name of vendor Ram
Lakhan.

6. Nine issues were framed before the
Consolidation Officer and parties adduced
oral and documentary evidences in support
of their cases. Consolidation Officer while
deciding the issues nos. 1, 2, 3, 4 & 9
recorded finding of fact that adoption deed
as claimed by Hira Lal is void and
ineffective as ceremony of adoption has not
been proved by Hira Lal. Consolidation
Officer further recorded finding that even
after adoption, Hira Lal executed a
registered sale deed in 1974, showing his
age as 32 years and his father's name as
Mahavir (natural father) which demonstrate
that adoption deed is void. Accordingly,
776 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer ordered to record the
name
of
Ram
Lakhan
(deceased),
substituted by Ram Murat for 1⁄2 share
along with Hira Lal, son of Mahavir in the
place of Hira Lal, adopted son of Ram
Charan.

7. While deciding the Issue Nos. 5 &
6, Consolidation Officer ordered to record
the name of Ayodhya and Nanhe Lal, being
vendees of Ram Lakhan, son of Mahavir as
claim for 1⁄2 share of Ram Lakhan was
accepted.

8. While deciding Issue Nos. 7 & 8,
plot nos.23, 24 & 55 were ordered to be
vested in state after expunging the name of
recorded tenure holder by order of
Consolidation Officer dated 7.10.2008.

9. Against the order of Consolidation
Officer dated 7.10.2008, three appeals were
filed under Section 11(1) of U.P. C.H. Act,
one appeal by Hira Lal (father of
respondent no.4), one appeal by petitioner
Ram Murat and one appeal by Mata Prasad
(respondent no.1). All the three appeals
were consolidated and heard together by
Settlement Officer (Consolidation) and by
order dated 10.9.2014, Settlement Officer
(Consolidation) dismissed all the three
appeals.

10. Against the appellate order dated
10.9.2014, three revisions under Section 48
of the U.P. C.H. Act were filed, one by
petitioner Ram Murat, one by Raja Ram
and others (respondent nos. 4 to 6) and one
by Mata Prasad (respondent no.7). All the
three revisions were heard together by
Deputy Director of Consolidation. Deputy
Director of Consolidation vide order dated
8.3.2008,
allowed
the
revisions
of
respondent nos. 4 to 7 and dismissed the
revision filed by petitioner, setting aside the
orders passed by Consolidation Officer and
Settlement Officer (Consolidation) dated
7.10.2008 & 10.9.2014 and maintained the
basic year entry of khata no.81 as well as
ordered to record the names of Mata
Prasad, vendees of Hira Lal in place of Hira
Lal in respect of plot no. 52, area 1-0.0.
Hence this writ petition on behalf of the
petitioner.

11. Counsel for the petitioner
submitted that Consolidation Officer and
Settlement Officer (Consolidation) have
recorded finding of fact that adoption deed
is void and ineffective but Deputy Director
of Consolidation has illegally held in
exercise of revisional jurisdiction that civil
court in Suit No.12 of 1979 has recorded
finding that Ram Charan has adopted Hira
Lal while the fact is the Suit No.12 of 1979
filed by Hira Lal for cancellation of sale
deed dated 3.6.1973 executed by Ram
Lakhan in favour of Ayodhya Prasad and
Nanhe Lal was dismissed by judgment
dated 8.12.1982 on the ground of lack of
jurisdiction, as such, finding on any other
point which were not in issue in the suit
will be irrelevant. He further submitted that
certified copy of adoption deed dated
23.3.1948 was filed before Consolidation
Officer but original adoption deed was not
filed nor there was any explanation for the
same, as such, in view of the provisions
contained under Sections 64, 65, 74 & 76
of the Indian Evidence Act, 1872, certified
copy of adoption deed will not be
admissible. He further submitted that
Consolidation
Officer
and
Settlement
Officer (Consolidation) after considering
the
orders
and
entries
of
earlier
consolidation operation, have rightly held
that petitioner and his vendees are entitled
to be recorded over plot no.52 but
revisional court has illegally interfered with
findings of act, as such, revisional order is
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
777
liable to be set aside. He further submitted
that court of Consolidation Officer and
Settlement Officer (Consolidation) have
illegally vested the plot nos. 23, 24 & 55 in
the state in spite of the fact that the
petitioner's father was recorded in the 1st
consolidation operation over the plot nos.
23, 24 & 55. He also submitted that
provisions of Section 175 of the U.P.Z.A. &
L.R. Act was not taken into consideration,
as such, impugned orders are illegal. He
placed reliance upon the judgment of the
Apex Court in the case of Shri Jagdamba
Prasad (dead) thr. L.R.'s and Others vs.
Kripa Shankar (Dead) thr. L.R. and
Others, 2014 (124) R.D. 1 in which it is
held that Section 48 of the U.P. C.H. Act is
pari materia to Section 115 of the Code of
Civil Procedure, 1908. Power of revisional
authority only extends to ascertaining
whether the subordinate courts have
exceeded their jurisdiction in coming to the
conclusion, if not, revisional authority
cannot come to a contrary conclusion by
admitting new fats either in form of
documents or otherwise. He further placed
reliance upon a judgment of this Court in
the case of Ram Udit vs. D.D.C. and
Others, 2014 (125) R.D. 627 in which
judgment of the Apex Court rendered in
Shri Jagdamba Prasad (supra) has been
followed.

12. On the other hand, counsel for the
respondent nos. 4 to 7 submitted that
revisional court has rightly exercised the
jurisdiction as vested in him under Section
48 as well as explanation nos. 1, 2 & 3 of
Section 48 of the U.P. C.H. Act, as such, no
interference
is
required
against
the
impugned revisional order. He further
submitted that adoption deed executed on
23.3.1948 is more than 20 year old, as
such, respondent nos. 4 to 6 are entitled to
benefit of Section 90 of the Indian
Evidence Act, 1872. He further submitted
that entries made in the first consolidation
operation were manipulated as Hiralal,
father of respondent no.4 was minor during
that period, as such, no reliance can be
placed
upon
the
entries
of
first
consolidation
operation.
He
further
submitted that sale deed executed by
Hiralal on 20.5.1974, although, contain the
name of natural father but it was the
creation of his elder brother Ram Lakhan
(father of petitioner) being guardian of
Ram Lakhan. Counsel for the respondent
placed reliance upon paragraph no.21 of the
written statement filed by Ram Lakhan in
Civil Suit No.12 of 1979 by which,
according to him, Ram Lakhan admitted
adoption deed preferred by Hira Lal. He
further placed portion of the judgment of
civil court dated 8.2.1982 where civil court
on the basis of averment of paragraph
no.21 of the written statement found that
Hira Lal is adopted son of Ram Charan,
accordingly, counsel for the respondent
nos. 4 to 7 submitted that no interference is
required against the impugned revisional
order.

13. In reply, counsel for the petitioner
submitted that at the time of execution of
sale deed by Hira Lal in the year 1974, Hira
Lal was very much major and was aged
about 32 years. He further submitted that
father's name of Hira Lal as Mahavir is also
mentioned in Voter List, kutumb register as
well as in C.H. Form 45 of earlier
consolidation operation which cannot be
ignored while considering the case of
adoption set up by Hira Lal (father of
respondent
no.4).
He
further
placed
reliance upon paragraph no.16 of the
written statement where it was specifically
stated that there was no adoption of
plaintiff (Hira Lal) according to Hindu
religion. He further submitted that there
778 INDIAN LAW REPORTS ALLAHABAD SERIES
was no issue framed in Suit No.12 of 1979
regarding adoption deed dated 23.3.1998
nor there was any adjudication of Civil Suit
No.12 of 1979 on merit rather the suit was
dismissed for the lack of jurisdiction of the
court, as such, no reliance can be placed
upon the judgment of Suit No.12 of 1979.

14. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

15. There is no dispute about the fact
that in the basic year of the consolidation
operation, Hiralal, adopted son of Ram
Charan was recorded in the basic year of
the consolidation operation. Against the
basic year entry, an objection under Section
9-A(2) of the U.P.C.H. Act was filed by
petitioner's father Ram Lakhan that he
should be recorded along with Hira Lal
over plot no.52 and share should be 1⁄2 each.
He further prayed that in respect to plot
nos. 23 to 25, petitioner's father be recorded
exclusively after expunging the name of
Hira Lal. On the other hand, Hiralal
contested the objection on the basis of
adoption deed alleged to be executed in his
favour on 23.3.1948 by Ram Charan.
Respondent no.7 claimed the right on 1.0.0
area of plot no.52 on the basis of sale deed
executed in his favour by Hira Lal and
Ayodhya Prasad and Nanhe Lal claimed the
right on the basis of registered sale deed
executed in their favour by Ram Lakhan in
respect to 2.12.6 area of plot no.52.
Consolidation
Officer
and
Settlement
Officer (Consolidation) have given right to
petitioner's father to be recorded over plot
no.52 having 1⁄2 share, accordingly, right of
vendees of petitioner's father was also
accepted but the claim of Hiralal on the
basis of adoption deed alleged to be
executed on 23.3.1948 was rejected,
accordingly, the claim of vendees of Hiralal
was also rejected. Consolidation Officer
has further ordered to vest the plot nos. 23
to 25 in the state as nobody was found heir
of Ram Charan. Deputy Director of
Consolidation has allowed the revisions of
respondent nos. 4 to 7 and dismissed the
revision of petitioner, accordingly, basic
year entry was maintained and the case of
adoption was found proved by Deputy
Director of Consolidation.

16. Since in the 1st consolidation operation
Ram Charan, son of Sheetal, Ram Lakhan,
son of Mahavir and Hiralal, minor son of
Mahavir under guardianship of Ram
Lakhan were recorded over plot no.52 in
C.H. Form No.45, as such, that entry
cannot be ignored where the name of
natural father Mahavir is mentioned against
the name of Hira Lal. It is further relevant
that first consolidation operation were
completed in the year 1960 but no steps
were taken by Hiralal to correct the entry
on the basis of adoption deed nor Ram
Charan has taken any steps being father of
Hiralal. So far as adoption deed of
23.3.1948 is concerned, there is no
signature of the person who is giving his
child for adoption. It is further relevant that
original adoption deed has not been filed
before
Consolidation
Officer
rather
certified copy of adoption deed was filed
and there is no explanation regarding
original adoption deed. It is further relevant
that name of natural father of Hiralal has
been mentioned in Voter List, Kutumb
Register even in the registered sale deed
executed in the year 1974 when the Hiralal
was 32 years of age, as such, this fact is
also relevant which was considered by
Consolidation
Officer
and
Settlement
Officer (consolidation). So far as the
judgment of civil court passed in civil suit
no.12/1979 filed by Hiralal for cancellation
of sale deed executed by Ram Lakhan
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
779
infavour of Ayodhya Prasad and Nanhe Lal
are concerned, since that suit was dismissed
for lack of jurisdiction and there was no
issue in the suit with respect to adoption
deed dated 23.3.1948, as such, any
observation in that suit regarding adoption
deed will not be conclusive proof of
adoption
deed.
Revisional
court
has
illegally held that civil court has found the
adoption deed dated 23.3.1948 as genuine.
On the question of admissibility of
adoption deed. It will be relevant to
mention here that adoption deed is of
23.3.1948 that is before the enforcement of
the Hindu Adoption & Maintenance act,
1956. In 1948, one could not claim validity
of his adoption merely because registered
document
was
executed
and
no
presumption in law about the validity of
adoption arose, according to the then
prevalent law. The registered document
regarding
adoption
has
assumed
significance after the enforcement of Hindu
Adoption and Maintenance Act, 1956.

17. On the question of admissibility
of certified copy of adoption deed, the
perusal of Section 64, 65, 74 & 76 of the
Evidence Act, shall be relevant, which are
as follows:

"64. Proof of documents by primary
evidence.--Documents must be proved by
primary evidence except in the cases
hereinafter mentioned.
65. Cases in which secondary evidence
relating to documents may be given.--
Secondary evidence may be given of the
existence, condition, or contents of a
document in the following cases:--

(a) When the original is shown or
appears to be in the possession or
power-- of the person against whom the
document is sought to be proved, or of
any person out of reach of, or not
subject to, the process of the Court, or of
any person legally bound to produce it,
and when, after the notice mentioned in
section 66, such person does not produce
it;

(b) when the existence, condition or
contents of the original have been
proved to be admitted in writing by the
person against whom it is proved or by
his representative in interest;

(c) when the original has been
destroyed or lost, or when the party
offering evidence of its contents cannot,
for any other reason not arising from
his own default or neglect, produce it in
reasonable time;

(d) when the original is of such a
nature as not to be easily movable;

(e) when the original is a public
document within the meaning of section
74;

(f) when the original is a document
of which a certified copy is permitted by
this Act, or by any other law in force in
[India] to be given in evidence; [India]
to be given in evidence;"

(g) when the originals consists of
numerous accounts or other documents
which cannot conveniently be examined
in Court, and the fact to be proved is the
general result of the whole collection. In
cases (a), (c) and (d), any secondary
evidence of the contents of the document
is admissible. In case (b), the written
admission is admissible. In case (e) or
(f), a certified copy of the document, but
no other kind of secondary evidence, is
admissible. In case (g), evidence may be
given as to the general result of the
documents by any person who has
examined them, and who is skilled in the
examination of such documents.

74.

Public
documents.--The
following
documents
are
public
documents :--
780 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Documents forming the acts, or
records of the acts--

(i) of the sovereign authority,
(ii)
of official bodies and tribunals, and

(iii) of public officers, legislative,
judicial and executive, of any part of India
or of the Commonwealth, or of a foreign
country;

(2) Public records kept in any State of
private documents.

76.
Certified
copies
of
public
documents.--Every public officer having
the custody of a public document, which
any person has a right to inspect, shall
give that person on demand a copy of it on
payment of the legal fees therefore,
together with a certificate written at the
foot of such copy that it is a true copy of
such document or part thereof, as the case
may be, and such certificate shall be dated
and subscribed by such officer with his
name and his official title, and shall be
sealed,
whenever
such
officer
is
authorized by law to make use of a seal;
and such copies so certified shall be called
certified copies.

Explanation.--Any officer who, by the
ordinary course of official duty, is
authorized to deliver such copies, shall be
deemed to have the custody of such
documents within the meaning of this
section.

18. On the point of presumption of
document, more than 20 years old Section
90 of the Evidence Act, 1872 shall be
relevant which is as follows:-

90. Presumption as to documents thirty
years
old.--Where
any
document,
purporting or proved to be thirty years old,
is produced from any custody which the
Court in the particular case considers
proper, the Court may presume that the
signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in
that person's handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be
executed and attested. Explanation.--
Documents are said to be in proper
custody if they are in the place in which,
and under the care of the person with
whom, they would naturally be; but no
custody is improper if it is proved to have
had a legitimate origin, or if the
circumstances of the particular case are
such as to render such an origin probable.
This Explanation applies also to section
81.

STATE AMENDMENTS

Uttar Pradesh.

(a) Renumber section 90 as subsection (1) thereof;

(b)
in
sub-section
(1)
as
so
renumbered, for the words "thirty years",
substitute the words "twenty years";
(c) after sub-section (1) as so renumbered,
insert the following sub-section, namely:--

"(2) Where any such document as is
referred to in sub-section (1) was registered
in accordance with the law relating to
registration of documents and a duly
certified copy thereof is produced, the court
may presume that the signature and every
other part of such document which
purports to be in the handwriting of any
particular person, it is that person's
handwriting, and in the case of a document
executed or attested, that it was duly
executed and attested by the person by
whom it purports to have been executed or
attested".

(d) After section 90, insert the
following section, namely:--

"90A.
(1)
Where
any
registered
document or a duly certified copy thereof
or any certified copy of a document which
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
781
is part of the record of a Court of Justice, is
produced from any custody which the Court
in the particular case considers proper, the
Court may presume that the original was
executed by the person by whom it purports
to have been executed.
(2) This presumption shall not be made in
respect of any document which is the basis
of a suit or of defence or is relied upon in
the plaint or written statement."

The Explanation to sub-section (1) of
section 90 will also apply to this section;
[Vide Uttar Pradesh Act 24 of 1954, sec. 2
and Sch. (w.e.f. 30-11-1954).]"

19. On the point of Section 90 of
Indian Evidence Act as well as on the point
of proof of adoption deed this Court in a
case of Harihar Vs. Deputy Director of
Consolidation Mau and Others 2015 (127)
RD 144 has held that so far as admissibility
of the document being 20 year old under
Section 90 of Evidence Act, 1872 it has
nothing to do with the ceremonies of the
adoption which has to be proved either by
direct evidence or presumption has to be
raised according to the provisions of
Section 16 of Hindu Adoption and
Maintenance Act. Paragraph No.7, 8 and 9
of Harihar (supra) is as follows:

"7. I have considered the arguments of
the counsel for the parties and examined
the record. Admittedly, the ceremonies of
adoption have not been proved by any
witness. Thus the only evidence relating to
adoption
is
adoption
deed
dated
12.08.1964. The arguments of the counsel
for the petitioner that the document, being
twenty years old was admissible in
evidence without any formal proof under
Section 90 of the Act as such the
consolidation authorities are bound to
raise presumption of the ceremonies of
adoption as provided under Section 16 of
Hindu Adoption and Maintenance Act,
1956. Section 16 of which is relevant is
quoted 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.
8. In order to raise presumption regarding
adoption on the basis of adoption deed, the
deed must have been signed by the person
giving and the person taking the child in
adoption both. Admittedly, deed dated
12.08.1964 was not signed by natural
father and mother of the petitioner. As such
presumption
regarding
ceremonies
of
adoption on its basis cannot be raised. In
order to be valid adoption, the child must
have been adopted according to the rites
and custom of Hindu law. So far as
admissibility of the document being 20
years old under Section 90 of Evidence Act,
1872, it has nothing to do with ceremonies
of the adoption which has to be proved
either by direct evidence or presumption
has to be raised according to the provisions
of Section 16 above.
9.
Findings
regarding
Udasi
being
daughter of Soti and Khedani is based upon
Pariwar Register as well as oral evidence
of Udasi, which is admissible under Section
50 of the Evidence Act, 1872. There is no
illegality in respect of findings of fact in
this respect and no interference is required
by
this
Court
in
exercise
of
writ
jurisdiction. Similarly, the consolidation
authorities have jurisdiction to correct the
revenue entries of other khatas, even there
was no objection by Udasi. In view of
782 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid
discussions,
orders
of
respondents-1 and 2 do not suffer from any
illegality. The writ petition has no merit
and is dismissed."

20. This Court in another judgment in
a case of Dr. Jeevan Bahadur Samaddar
Vs. Govind Charan Samaddar and Others
2013 (120) RD 717 has held that if certified
copy has not been placed on record after
satisfying the requirements of Section
64/65 of the Indian Evidence Act, 1872, the
mere fact that it was a certified copy by
itself, would not make it admissible in
evidence since it is secondary evidence and
can be adduced in evidence only as
provided in statute and not otherwise.
Paragraph No.39 and 40 of Dr. Jeevan
Bahadur Sammaddar (supra) will be
relevant
to
appreciate
the
present
controversy which is as follows:

"41.Thus presumption under Section
90(1) is attracted in respect of original
document. However, sub-section (2) is
applicable in respect of certified copies but
it would be attracted only when certified
copy has been adduced in evidence in
accordance with procedure prescribed in
law, or after satisfying the requirement of
law, i.e., Sections 64 and 65 of Act, 1872
and not otherwise. Under Act, 1872
certified copy as such is not admissible in
evidence being a secondary evidence
unless the procedural requirement thereof
is satisfied. It is only when a certified copy
has
been
adduced
in
evidence
in
accordance with requirement of the
statute, the question of presumption under
Section 90(2) would be attracted and not
otherwise. Section 90(2) cannot be read in
isolation. It has to be read in harmony
with other provisions of the Act, 1872.

42. The above discussion also leads to
the inference that, (1) presumption under
Section 90 is discretionary, though the
discretion is to be exercised judiciously;
(2) sub-section (1) of Section 90 (as
amended
in
U.P.
or
otherwise)
is
applicable only in respect to original
document and not copies or certified
copies; (3) the document must be 20/30
years old and must have come from proper
custody; (4) the presumption is in respect
of execution and attestation of document
as also the handwriting of person
concerned;
(5)
sub-section
(2)
(as
available in U.P.) is applicable to certified
copies when the same are adduced in
evidence in accordance with law, i.e., as
per the requirement of Sections 64 and 65
of Act, 1872. "

21. This Court in the case of Ram
Vrat Tripathi Vs. Deputy Director of
Consolidation and Others 2006 (100) R.D.
581 has held that ceremony of giving and
taking is essential to validate adoption. Para
No.5 of the judgment is as follows:

"5. Besides the controversy that
whether the adoption deed being tweenty
year old, no further proof was required
and document was to be accepted as it is,
this Court has to consider various other
facts
and
circumstances
besides
voluminous evidence as was available
before the Courts below and as has been
placed before this Court also. Petitioner
has
brought
on
record
bulk
of
documentary evidence in the shape of
school
record,
Khasra
extracts
and
documents relating to proceedings of
earlier cases. In all the school record,
respondent No. 3 is shown to be the son of
Sahadeo. In the Transfer Certificate,
School Leaving Certificate, admission
documents and in the declaration in the
University, respondent No. 3 was shown to
be recorded as son of Sahadeo. The
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
783
adoption deed is said to be dated
13.12.1946 but thereafter when for the
first time, respondent No. 3 was admitted
in school, form was filed by Sahadeo
himself and Sahadeo was shown to be
father of Ram Chandra. There is a
mention in the documents so filed by
petitioner that college staff asked the
signatory on the form namely Sahadeo
about
parentage
upon
which,
a
declaration was given that Ram Chandra
is the son of Sahadeo. In all Khasra
extracts, Ram Chandra is shown to be the
son of Sahadeo. There are several money
order receipts from which, it is clear that
the petitioner has been sending money to
Sahadeo who happened to be elder
brother. In Khasra extracts, petitioner is
shown to be in possession as ''marfat' to
Sahadeo. The adoption deed is not signed
by Sahadeo who is said to have given his
son in adoption to Ram Cheez. The
Consolidation Officer by referring these
factors in a precise manner, gave a clear
finding that the name of Ram Chandra
alone came in the papers without any
reference to any amaldaramad in 1354
Fasli. Beeran Tiwari and Thag Tiwari the
marginal witnesses of the adoption deed
have not been examined. In all the school
papers, revenue papers throughout Ram
Chandra is shown to be son of Sahadeo.
For the first time when Ram Chandra was
admitted in School which was after the
alleged adoption deed, he was shown to be
son of Sahadeo. At no point of time, till
the last Ram Chandra ever tried to get his
parentage corrected as adopted son of
Ram Cheez. In his service book also, he is
shown to be son of Sahadeo. Oral
evidence is contradictory in respect to the
ceremony of giving and taking. It is on all
these findings, genuineness of deed was
rejected by the Consolidation Officer and
the petitioner was accepted to be co-tenant
with the respondents along with his
legitimate share according to the pedigree.
The appellate authority and the Revisional
Court mainly on the ground that deed is
twenty year old and it has not been
cancelled in any competent Court have
negatived the petitioner's claim and have
reversed
the
judgment
of
the
Consolidation
Officer.
The
Deputy
Director of Consolidation appears to have
made wrong observation by saying that
the land was throughout recorded in the
name of Bikkan and thereafter Ram
Cheez whereas the record placed before
this Court states otherwise. A further
wrong finding was given that Ram
Chandra is entered as adopted son of Ram
Cheez in the record which is not so. There
is a further wrong finding that in no
document, the petitioner has been shown
to be in possession whereas Khasra
extracts have been filed to show his name
in possession as ''marfat'. The Deputy
director of Consolidation has concluded
by saying that in any view of the matter,
entry of Ram Chandra showing his long
possession, confers independent rights on
him
which
appears
to
be
totally
misconceived as it was not the case of
even respondent and on the other hand,
all three were shown to be in possession in
the shape of ''marfat' entry. The appellate
authority in a very cryptic manner only by
giving emphasis about the document being
twenty year old, allowed the appeal and
the Revisional Court by recording varous
findings on the question of fact as noticed
above, which apparently do not born out
from the record has dismissed the
revision.
In
view
of
the
aforesaid
discussion, it is clear that besides adoption
deed, own conduct of the respondent No. 3
and his father throughout as is apparent
from voluminous evidence was liable to be
taken note of by Appellate Court and the
784 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisional Court. By adoption, mode of
succession stands changed and therefore,
that is to be accepted with all care. Even
in presence of adoption deed, ceremony of
giving and taking as stated in the principle
ofHindu Lawas has been noticed by the
Apex Court in the case ofLakshman
Singh(supra) has to be kept in mind. Few
observations as are contained in the
judgment of the Apex Court will be useful
to be quoted here;

"That a formal ceremony of giving
and taking is essential to validate the
adoption has been emphasized by the
Judicial. Committee again in Krishna Rao
v. Sundara Siva Rao."

Further observation as has been
made by the Apex Court in paras-9 and 10
will be useful to be referred at this place;

Para-9: Strong reliance is placed by
learned Counsel for the appellant on the
decision of the Judicial Committee in
Biradhmal v. Prabhabhati. There a widow
executed a deed of adoption whereby she
purported to have adopted son to her
deceased husband a boy. The SubRegistrar before whom the document was
registered put to the boy's natural father
and to the widow questions whether they
had executed the deed. The boy was also
present
at
that
time.
The Judicial
Committee held that, under the said
circumstances, there was proof of giving
and taking. The question posed by the
Privy Council was stated thus: "The sole
issue discussed before their Lordships was
the question of fact whether on 30th June,
1924, at about 6 P.M. when the adoption
deed was being registered the boy was
present and was given by Bhanwarmal
and taken by the widow." The question so
posed was answered thus at p. 155--

"....... Their Lordships think that the
evidence that the boy was present at the
time when the sub-registrar put to his
father and to the widow the questions
whether they had executed the deed is
sufficient to prove a giving and taking."
This sentence is rather laconic and may
lend support to the argument that mere
putting questions by the sub-registrar
would amount to giving and taking of the
adoptive
boy
but
the
subsequent
discussion makes it clear that the Privy
Council had not laid down any such wide
proposition. Their Lordships proceeded to
observe:

"Even if the suggestion be accepted
that the auspicious day ended at noon on
the 30th and that the deed was executed
before noon and before the boy arrived at
Ajmer, it seems quite probable that the
registration
proceedings
which
were
arranged for 6 P.M. would be regarded as
a suitable occasion for carrying out the
very simple ceremony that was necessary."
These observations indicate that on the
material placed before the Privy Council-it
is not necessary to say that we would come
to the same conclusion on the same
material it held that there was giving and
taking of the boy at about 6 p.m. when the
judicial committee, in our view, did not
intend to depart from the well recognized
doctrine of Hindu Law that there should
be a ceremony of giving and taking to
validate an adoption.

Para-10: The law may be briefly stated
thus: Under the Hindu Law, whether among
the regenerate caste or among Sudras, there
cannot be a valid adoption unless the
adoptive boy is transferred from one family
to another and that can be done only by the
ceremony of giving and taking. The object
of the corporeal giving and receiving in
adoption is obviously to secure due
publicity. To achieve this object, it is
essential to have a formal ceremony. No
particular form is prescribed for the
ceremony, but the law required that the
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
785
natural parent shall hand over the adoptive
boy and the adoptive parent shall receive
him.