Budhi Ram And Others vs Ram Kesh

Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
SECOND APPEAL No. – 1210 of 1980
Budhi Ram And Others …..Appellant(s)
Versus
Ram Kesh …..Respondent(s)
Counsel for Appellant(s) : Ashish Kumar Singh, Jitendra
Kumar Srivastava, S.K.Gaur, Sunil
Kumar Gaur
Counsel for Respondent(s) : J.P.Pandey
Court No. - 51
HON'BLE ARUN KUMAR, J.
1. Heard Sri Ashish Kumar Singh, learned Senior Counsel, assisted
by Sri Jitendra Kumar Srivastava, learned counsel for the
appellants. None appears for the respondent.
2. The present second appeal under Section 100 of the Code of Civil
Procedure arises from concurrent judgments rendered by the
courts below whereby the suit instituted by the plaintiff-
respondent for cancellation of the sale deed has been decreed, by
the judgment and decree of the Trial Court dated 16.08.1979, as
upheld by the judgment and decree of the Lower Appellate Court
dated 02.02.1980.
3. The dispute relates to certain agricultural plots which, according
to the plaintiff, were bhumidhari holdings of one Badlu. Badlu
was stated to be an adherent of the principles of the Arya Samaj.

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SECOND APPEAL No. – 1210 of 1980
The plaintiff, Ram Kesh, claimed that he was the biological son of
Badlu through the plaintiff's mother, who was at the relevant time
married to Budh Ram. The plaintiff was born during the
subsistence of that marriage out of the relationship between his
mother and Badlu. The plaintiff's case was that Badlu
subsequently adopted him as his son on 08.11.1970. The plaintiff
alleged that, notwithstanding his status as the adopted son of
Badlu, the defendants took advantage of Badlu's condition by
taking him away on the pretext of getting him medically treated
and thereafter procured from him sale deed dated
18.06.1973/19.06.1973, in their favour in respect of the disputed
agricultural land. The plaintiff alleged that the transaction was
fraudulent and that Badlu had not voluntarily and validly executed
the sale deed. The plaintiff consequently instituted the suit seeking
cancellation of the sale deed.
4. The defendants-appellants contested the suit. Their principal stand
was that Badlu had voluntarily and knowingly executed the sale
deed, that the document was genuine, and that the plaintiff was
not the adopted son of Badlu and, therefore, had no right to
maintain the suit. The defendants also disputed the alleged
adoption and relied upon the absence of an appropriate entry
concerning the plaintiff in the family register.
5. Before the Trial Court, the plaintiff examined, amongst others,
P.W.1 Ajore Pandey, P.W.2 Pandit Mahesh, P.W.3 Tribeni, P.W.4
Ram Sewak and P.W.5 Budh Ram, the husband of the plaintiff's
mother. Their evidence was relied upon to establish the ceremony
of adoption. The plaintiff also relied upon entries in the Pariwar
Register, school certificate and Gamma Pass Book, wherein he
was shown as the son/adopted son of Badlu.
6. The defendants, on the other hand, examined witnesses including
D.W.1 T.H. Siddiqui, Handwriting and Finger Print Expert,

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SECOND APPEAL No. – 1210 of 1980
D.W.2 Budh Ram son of Charan, D.W.3 Muni Ram and D.W.4
Hari Prasad. Their evidence was relied upon principally in support
of the sale transaction and the defence that Badlu had not adopted
the plaintiff. The First Appellate Court, however, found that the
expert evidence did not materially assist the defendants because
the original document with which the disputed document was
allegedly compared had not been produced.
7. The learned Trial Court, after framing issues, held that the
plaintiff was the adopted son of Badlu and consequently had the
right to maintain the suit. It further held that the disputed sale
deed was not a valid act of Badlu and was liable to be cancelled,
and accordingly decreed the suit in favour of the plaintiff. The
evidence considered by the courts below indicated that the
adoption ceremony had taken place in or about 1970, and that the
customary ceremony of giving and taking of the child had been
performed.
8. The defendants preferred Civil Appeal No. 273 of 1979 before the
District Judge, Basti. The learned First Appellate Court examined
both the question of adoption and the validity of the sale
transaction. It upheld the Trial Court's finding that the adoption
had been duly proved, and further held that the evidence
surrounding the sale transaction, including the circumstances
relating to the consideration and the endorsement of the Sub-
Registrar, justified the conclusion that the sale deed was not a
genuine and valid document but had been fraudulently obtained.
9. This Court, while admitting the present second appeal by its order
dated 28.07.1980, framed following substantial questions of law
for determination:
(i) Whether a man could adopt his own illegitimate son?

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SECOND APPEAL No. – 1210 of 1980
(ii) Whether the finding of the two courts below that the sale
deed in question was not duly executed for consideration is
vitiated in law?
10. It is contended by the learned Senior Counsel that the adoption of
an illegitimate child by his natural father was not permissible
under the Hindu Adoption and Maintenance Act, 1956, as under
the aforesaid Act, the child being given in adoption should have
his relationship severed from the family of his natural parents. In
the case at hand, the natural father himself adopts his illegitimate
son, which runs contrary to the provisions of Section 12 of the
Act. It has been further contended that, according to Section 9, the
mother can give the child in adoption only with the consent of his
father, unless his father is dead, has completely and finally
renounced the world, or has ceased to be a Hindu. Therefore, the
adoption of the petitioner by his mother in favour of his father was
not recognised in law. It was further contended that the reasoning
of the District Judge in invoking Section 9(4) of the Act cannot be
accepted, as the said provision was not applicable at the time of
the alleged act of adoption.
11. The learned Senior Counsel for the appellant further contended
that the sale deed executed by Badlu in favour of the appellants
was valid and genuine. There is nothing on record to establish the
mental incapacity of Badlu. Moreover, a registered sale deed
carries a presumption of valid execution under Section 91 of the
Indian Evidence Act, 1872, and no amount of oral evidence can
prove to the contrary between the parties, as contemplated under
Section 92 of the Indian Evidence Act, 1872. It was further
contended that the endorsement on a registered document
admitted for registration and certified by the registering officer by
issuance of a certificate of registration proves the execution of the
document, which cannot be rebutted merely on conjectures and

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SECOND APPEAL No. – 1210 of 1980
surmises. The attention of the Court was drawn to the provisions
of Sections 58, 59 and 60 of the Registration Act, 1908.
12. It has been further contended that the discrepancy in the
statements of the witnesses regarding the consideration would not
nullify the registered document of sale. The findings of fraud and
undue influence are based on no evidence or pleadings, as the
averments in the plaint do not dispute the fact that the sale deed
was not executed by Badlu.
13. I have heard learned Senior Counsel for the appellant and have
carefully considered the judgments of the courts below, the
grounds taken in the memorandum of appeal and the evidence
noticed therein.
14. The first question requires examination of the statutory law as it
stood on the date of the alleged adoption. The adoption pleaded by
the plaintiff was admittedly of the year 1970. The governing
statute was, therefore, the Hindu Adoptions and Maintenance Act,
1956, as it stood at that time. The following provisions of Hindu
Adoption and Maintenance Act, 1956, as existing at the relevant
point of time are as under:-
2. Application of Act. (1) This Act applies—
(a) to any person, who is a Hindu by religion in any of its forms
or developments, including a Virashaiva, a Lingayat or a follower
of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion,
and
(bb) any child, legitimate or illegitimate, who has been
abandoned both by his father and mother or whose parentage is
not known and who in either case is brought up as a Hindu,
Buddhist, Jaina or Sikh; and
(c) to any other person who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person would
not have been governed by the Hindu law or by any custom or
usage as part of that law in respect of any of the matters dealt
with herein if this Act had not been passed.
Explanation.—The following persons are Hindus, Buddhists,
Jainas or Sikhs by religion, as the case may be:—

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SECOND APPEAL No. – 1210 of 1980
(a) any child, legitimate or illegitimate, both of whose parents
are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents
is a Hindu, Buddhist, Jaina or Sikh by religion and who is
brought up as a member of the tribe, community, group or family
to which such parent belongs or belonged; and
(c) any person who is convert or reconvert to the Hindu,
Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1),
nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of Article 366
of the Constitution unless the Central Government, by
notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be
construed as if it included a person who, though not a Hindu by
religion, is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.
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 (3) and sub-section
(4), the father, if alive, shall alone have right to give in adoption,
but such right shall not be exercised save with the consent of the
mother unless the mother 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) The mother may give the child in adoption if the father is
dead or 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.
(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 in consideration 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;

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SECOND APPEAL No. – 1210 of 1980
(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.
11. Other conditions for a valid adoption.— In every adoption,
the following conditions 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;
(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 child whose
parentage is not known, from the place or family where it has
been brought up to the family of its adoption:
Provided that the performance of datta homam shall not be
essential to the validity of 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 by the
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 to vest in such person subject to the
obligations, if any, attaching to the ownership of such property,

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SECOND APPEAL No. – 1210 of 1980
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.
15. The argument of the appellants proceeds upon the assumption that
the mere fact that Badlu was the natural or putative father of the
plaintiff necessarily rendered it legally impossible for him to
adopt the plaintiff. I am unable to accept that proposition.
16. The Act contains no such prohibition. On the contrary, Section 10,
which prescribes the persons capable of being adopted, does not
exclude an illegitimate child merely on the ground of his
illegitimacy. Section 2 (bb) of the Act itself expressly recognises,
for the purposes of its application, children who are legitimate or
illegitimate. Section 10 prescribes that the person to be adopted
must be a Hindu, must not already have been adopted, must not be
married unless a custom permits such adoption, and ordinarily
must not have completed fifteen years of age. Illegitimacy is
conspicuously absent from the statutory disqualifications.
17. The argument based upon Section 11(i) also does not assist the
appellants. Section 11(i), in the case of adoption of a son,
prohibits an adoptive father or mother from having a Hindu son,
son's son or son's son's son living at the time of adoption, whether
by legitimate blood relationship or by adoption. The statutory
language thus specifically refers to legitimate blood relationship
or adoption. It does not treat the existence of an illegitimate son as
the statutory disqualification contemplated by Section 11(i).
18. The more substantial question, therefore, concerns the person
competent to give the illegitimate child in adoption. This is where
the reasoning of the learned District Judge requires correction.
19. The learned District Judge proceeded substantially on the footing
that under Section 9(4) either the father, mother or guardian had
capacity to give the plaintiff in adoption and that, since the

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SECOND APPEAL No. – 1210 of 1980
maternity of the plaintiff was not in dispute, his mother could give
him in adoption to Badlu. That reasoning, insofar as it invokes
Section 9(4), cannot be accepted. Section 9(4) deals with the
exceptional case of a guardian giving a child in adoption with the
previous permission of the court, in circumstances such as the
death, renunciation, abandonment or incapacity of both parents, or
where parentage is unknown. There was no occasion to invoke
that provision in the present case merely because the plaintiff was
illegitimate.
20. The proper question is whether, under the law applicable in 1970,
the natural mother of an illegitimate child had capacity to give the
child in adoption to the person who desired to take him in
adoption.
21. The answer is in the affirmative. The judicial interpretation of
Section 9 has recognised the distinction between the natural
mother of an illegitimate child and the putative father for the
purpose of giving the child in adoption. In Sunilkumar v. Anila
V., dated 01.06.2010, passed in Matrimonial Appeal No. 1012 of
2009, decided by the Kerala High Court, the court considered the
adoption of an illegitimate child and referred to the settled
position that the mother of an illegitimate child can give the child
in adoption without the consent of her paramour, the putative
father. The court consequently held that the consent of the
putative father was not necessary.
22. The High Court of Mysore in the case of Sadashiv Rama Patole
Vs. Balakrishna and others, 1958 SCC OnLine Kar 176, while
considering the claim of a natural father for adoption of his
illegitimate son has held that such adoption cannot be held to be
invalid. The relevant paragraphs 41, 42, 43 and 44 of the aforesaid
judgment are reproduced as under:-
“41. The second ground mentioned in Apya Shettyu Talawar v.
Rcmmdkka Apya Talawar is that an adulterous son cannot

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SECOND APPEAL No. – 1210 of 1980
perform religious obsequies such as Shraddha, Sapindi Karana
etc., to his adoptive father. It is based on the following
reasoning:
“If therefore he is incapable of finding his natural father
so as to perform his shradda, in my opinion, it is difficult to
see how he could minister to the spiritual requirements of the
adoptive family. If therefore he has no genitive father to
whom he can offer pinda, he will not be able to perform the
‘sapindikarana’ of the adoptive Father………………”
42. I have already mentioned that where the parties belong to a
community like the Lingayats who do not perform any such
religious ceremony as Shradha or sapindi-karana, the above
considerations ought not to apply. Besides, in the present case,
the father being not unknown as in the case of a bastard child, no
invalidity can be attached to the adoption on this ground. The
next ground urged in that case is that an adulterous child is not
entitled to heritage. Hence if such a child is given in adoption,
he cannot be said to be entitled to inherit to his adoptive father.
Wassoo-dew, J. quoting from Vishnu Smrithi and Vasistha. states
that, according to the latter, the 12 classes of sons are divided
into two groups of six each and that the first six are heirs while
the second six are kinsmen but not heirs. It is in the latter group
that an illegitimate son is classed. This, according to the learned
Judge, shows that au aurasa son born to one who is not a wedded
wife cannot be fit to confer spiritual benefit on his father. He,
therefore, concludes that a bastard child will be much less
competent to promote spiritual welfare to the adoptive father. In
this connection, I think it better to quote from the judgment of
Venkata Rahga Iyengar, J. in Talawar Hanumi v. Talawar Guthya
—
“That even sons of immoral union, among those 12 kinds
of sons could offer pindas is clear from the following passage
in Manu IX, 130:— “Sages pronounce these eleven sons
beginning with the appointed wife's son to be substitutes of
the legitimate son for the sake of preventing the failure of
obsequies.” Yajnavalkya in Vyavahara-dhyaya, verse 132,
says after enumerating the 12 kinds of sons— “Among these,
in the absence of preceding, each next succeeding is a giver
of the funeral cake and the inheritor of a share.” Mitakshara's
comment on this verse is as follows:— “Of these
aforementioned sons of 12 kinds, in the absence of the
preceding, each next in order as enumerated, must be
considered to be the giver of the funeral cake i.e. performer
of the Shraddha. and the inheritor of a share i.e. successor to
the effects.” The five sons of Pandu. as can be gathered from
the Mahabharata, were all Kshetrajas, inasmuch as they were
not born to Pandu, but were begotten by Yama, Vayu, Indra
and the two Asvins on the two wives of Pandu. We find from
the Mahabharata that, though Pandavas were all Kshetrajas
and not the aurasa sons of Pandu, they Avere not considered
as sinful, but, on the other hand, they were recognised as
being competent to perform ceremonies and sacrifices and

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SECOND APPEAL No. – 1210 of 1980
that they were also initiated into all the Samskaras With
Vedic Mantras, just as in the case of aurasa sons,”
43. It may further be noted that in the above quotation from
Apya Shettya Talawar v. Rammakka Apya Talaioar Beaumont,
C.J. seems to have made an exception in the case of dasiputras.
The worst that could be said of the plaintiff in the present case is
that he is a dasiputra. It would not be possible to apply the
invalidity to him on the ground that he is an illegitimate son. In
this connection, it would be worth while noting that in Vellyappa
v. Nalaraja(5), the Privy Council has held that an illegitimate son
of a Sudra by a continuous concubine has the status of a son,
that he is a member of the family and that the share of
inheritance given to him is in recognition of his status as a son.
If so, it is difficult to understand how the adoption of such a
person can be held to be invalid.
44. For these reasons, I am inclined to come to the conclusion
that even on the assumption that the plaintiff is an illegitimate
son born of Sundara to Sakharam. his adoption cannot be held to
be invalid.”
23. A similar view was taken by a coordinate bench of Madras High
Court in the case of Ashok Kumar Vs. Inspector General of
Registration and others, 2024 SCC OnLine Mad 2111. The
relevant paragraphs 5, 6 & 7 of the aforesaid judgment are
reproduced as under:-
“5. Section 6 of the Hindu Adoptions and Maintenance Act,
1956 sets out the requisites of a valid adoption. One of the
conditions is that the person giving in adoption has the
capacity to do so. Section 9(1) and (2) of the Act read as
follows :
“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.]”
The first question that arises for consideration is whether
the adoption is invalid since consent has not been obtained
from the biological father of “A”. The answer is found in
Section 6 (b) of the Hindu Minority and Guardianship Act,
1956. It states that in the case of a Hindu minor illegitimate
boy or an illegitimate unmarried girl, the mother is the

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SECOND APPEAL No. – 1210 of 1980
natural guardian and after her, the father. The traditional
view was that the mother is the lawful guardian of her
illegitimate children. The High Court of Lahore held that
where the father is known, he has preferential right (Prem
Kaur v. Banarsi Das (AIR 1934 Lah 1003). But the High
Court of Madras in more than one decision (Rajlakshmi v.
Ramachandran, AIR 1967 Mad 113), (Dorai Raj v. SR
Laskhmi, AIR 1947 Mad 172) had taken a contra view. In
any event, Section 6 of the Hindu Minority and
Guardianship Act, 1956 had clarified the legal position. On
the Act coming into force, the mother of the illegitimate
minor child alone is the guardian of his person and
property. Therefore, “K” is competent to give her
biological child “A” in adoption. The proviso to Section
9(2) of the Act will kick in only if the father is around to
claim paternity over the child. In this case, the father has
not even been identified. “K” has not done so probably
because that will expose him to prosecution under POCSO
Act, 2012. One should therefore proceed on the premise
that the biological father of the child is not available. There
is a well known legal maxim “Lex Non Cogit Ad
Impossibilia” (Law does not compel a person to do that
which he or she cannot possibly perform). “K” cannot
possibly obtain consent from the natural father of the child.
Therefore, the proviso to sub-section (2) of Section 9 of
Hindu Adoptions and Maintenance Act, 1956 cannot apply.
6. The expression “after” occurring in Section 6(a) of the
Hindu Minority and Guardianship Act, 1956 was considered
by the Hon'ble Supreme Court of India in Githa Hariharan v.
RBI (1999) 2 SCC 228. It was held therein that the word
“after” need not necessarily mean “after the lifetime”. It would
mean “in the absence of”, the word “absence” referring to the
father's absence from the care of the minor's property or person
for any reason whatsoever. If the father is wholly indifferent to
the matters of the minor and the mother is exclusively in
charge, the father can be considered to be absent and the
mother can be recognized as natural guardian and she can act
validly on behalf of the minor. The very same approach can be
adopted in the present case also. “A” was born on account of
the illicit intimacy between “K” and “X”. “X” though alive is
absent for all practical purposes in the life of “A” and it is the
biological mother who is in charge of his person. In these
circumstances, “K” cannot be called upon to obtain the consent
of “X”. I hold that the proviso to sub-section (2) of Section 9
of the Hindu Adoptions and Maintenance Act, 1956 will not
apply when the mother/father of the child to be given in
adoption is absent in the sense laid down Githa Hariharan's
case.
7. The reason given in the impugned refusal check slip betrays
the patriarchal mind set of the registering authority. The
underlying assumption is that an unmarried woman above the
age of 18 years cannot give her biological child in adoption.

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SECOND APPEAL No. – 1210 of 1980
The marital status of the woman cannot be the determining
factor. Section 9 of the Hindu Adoptions and Maintenance Act,
1956 uses the expressions “father” and “mother”. It does not
use the words “husband” and “wife”. Even the proviso to sub-
section (2) of Section 9 does not envisage obtaining the
consent of one's spouse, if alive. It is possible that a child may
be born through live-in relationship or on account of illicit
intimacy. The mother may like to give the child in adoption in
order to ensure proper future for the child. The father may
have abandoned his child. He may not be around to assume
responsibility. The reason set out in the impugned order is
patently unsustainable.”
24. The aforesaid authorities have to be considered in the context of
the peculiar facts of the present case. The plaintiff was born
during the subsistence of the marriage of his mother with Budh
Ram, although the plaintiff's case, accepted by the courts below, is
that Badlu was his biological father. The plaintiff was thereafter
given in adoption by his biological mother to Badlu. The question,
therefore, is not merely whether an illegitimate child can be
adopted, but whether there was any statutory prohibition against
Badlu, the biological father, taking the plaintiff in adoption when
the child had been born during the subsistence of his mother's
marriage with Budh Ram.
25. In my considered view, the mere circumstance that Badlu was the
biological father of the plaintiff does not, by itself, create a
statutory prohibition against his taking the plaintiff in adoption.
The capacity of a person to give a child in adoption and the
capacity of another person to take the child in adoption are
distinct matters. Section 9 deals with the former, whereas Sections
6 and 7 deal with the capacity and right of the person taking a
child in adoption. The Act contains no express provision which
disqualifies a Hindu male from taking in adoption a child who is
his biological but illegitimate son.
26. The appellants' reliance upon Section 12 also does not advance
their case. Section 12 prescribes the legal consequences flowing
from an adoption validly made. The severance of the ties of the

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SECOND APPEAL No. – 1210 of 1980
child with the family of birth is the legal effect of a valid
adoption; it is not an independent statutory prohibition against a
biological father taking his illegitimate child in adoption. The
validity of the adoption has instead to be tested with reference to
the requirements of Sections 6, 7, 9, 10 and 11 of the Act.
27.
The more substantial objection concerns the capacity of the
plaintiff's mother to give the plaintiff in adoption. The alleged
adoption took place on 08.11.1970 and, therefore, the provisions
of Section 9 applicable on that date have to be considered. The
learned District Judge was not correct in invoking Section 9(4) as
the statutory basis for sustaining the adoption. The learned District
Judge was not correct in invoking Section 9(4) of the Act, since
the said provision was not applicable to the alleged adoption of
08.11.1970. The present case was not one founded upon such
permission or upon the circumstances contemplated by that
provision.
28. The incorrect reference to Section 9(4), however, does not by
itself render the ultimate finding regarding the adoption
unsustainable. The question has to be examined on the statutory
position applicable to the adoption in question and upon the
findings of fact recorded by the courts below. The evidence
accepted by both courts establishes that the plaintiff's biological
mother gave the plaintiff in adoption to Badlu and that Badlu took
the plaintiff in adoption. There is thus no occasion to invalidate
the adoption merely because Badlu was also the biological father
of the plaintiff.
29. The requirement contained in Section 11(vi) is of particular
significance. The child must actually be given and taken in
adoption with the intention of transferring the child from the
family of his birth to the family of adoption. The evidence of
P.Ws. 2, 3 and 4, as concurrently accepted by the courts below,
specifically establishes the ceremony of giving and taking. The

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SECOND APPEAL No. – 1210 of 1980
fact that the person who took the plaintiff in adoption was his
biological father does not render that ceremony legally
meaningless. What is material is whether the parties intended
thereby to create the legal relationship of adoptive father and
adopted son and whether the statutory conditions were otherwise
satisfied.
30. The Supreme Court in Lakshman Singh Kothari v. Smt. Rup
Kanwar, AIR 1961 SC 1378, emphasised that giving and taking is
the operative part of the adoption. No particular form of ceremony
is prescribed, but there must be a real act of giving and taking
evidencing the transfer of the child.
The burden of establishing adoption is consequently a serious one.
31.
In Kishori Lal v. Mst. Chaltibai, AIR 1959 SC 504, the Supreme
Court cautioned that because an adoption changes the course of
succession, the evidence supporting it must be free from suspicion
and sufficiently consistent and probable. The same principle has
subsequently been reiterated by the Supreme Court.
32. It is against that legal background that the evidence in the present
case has to be considered.
33. The trial court examined the evidence of the witnesses produced
to prove the adoption. P.W.1, the village official, was examined
with reference to the Parivar Register and explained the entry
relating to the plaintiff. P.W.2, Pandit Mahesh, stated that he
knew Badlu because the house of Badlu's father-in-law was
situated in the same village where the witness's father resided and
that he had acted as Pandit at the ceremony of adoption. He
specifically stated that the ceremony of adoption of the plaintiff as
the son of Badlu was performed in the year 1970. The objection
that he was not the Pandit who ordinarily performed Badlu's
religious ceremonies was considered and rejected by the trial
court. The court observed that adoption was not an everyday or

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SECOND APPEAL No. – 1210 of 1980
ordinary ceremony and there was nothing inherently improbable
in Badlu engaging another competent Pandit to conduct it
according to the Shastric rites.
34. P.W.3 Triveni specifically deposed that the ceremony of giving
and taking the child was performed in his presence. P.W.4 Ram
Sewak was an attesting witness and proved his signature as well
as the signature of the executant on the relevant document. P.W.5
Budh Ram, the husband of the plaintiff's mother, stated that about
eight or nine years earlier his son had been taken in adoption by
Badlu. The learned Munsif found that these witnesses had
specifically spoken to the ceremony of giving and taking and had
withstood cross-examination. He consequently recorded a finding
that the ceremony of adoption had been fully proved.
35. The first appellate court independently considered this evidence. It
noticed the challenge to the testimony of P.W.2 and found no
cogent reason to reject it. It further noticed the evidence of P.Ws.
3, 4 and 5 and held that the finding of the trial court that the
adoption had been proved did not warrant interference.
36. The documentary evidence was also considered. The plaintiff was
recorded as the adopted son of Badlu in the Khatuni extracts, and
his name as the son of Badlu also appeared in the school
certificate and Ganna Pass Book. The trial court was conscious
that such entries by themselves do not constitute the adoption
ceremony; nevertheless, they constituted corroborative evidence
when read with the oral evidence. The court also dealt with the
Parivar Register and the allegation that the relevant entry had been
scored out.
37. The appellants have urged that a document relating to the
adoption, which according to the plaintiff was executed at the
time of adoption, was not produced and that therefore the oral
evidence should not have been accepted. This submission cannot

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SECOND APPEAL No. – 1210 of 1980
be accepted as a proposition of law. The adoption took place in
1970. The special provision introduced by the 1976 amendment to
Section 16, requiring a registered document as the only admissible
proof of giving and taking for adoptions made on or after 1
January 1977, was not applicable to an adoption of 1970. The
statutory text expressly makes the amendment prospective.
38. Accordingly, in respect of an adoption made in 1970, the absence
of a documentary adoption deed is not by itself fatal. The factum
of giving and taking could be established by legally admissible
evidence. Whether that evidence was sufficient, was essentially a
question of fact, and both courts below have concurrently found it
sufficient.
39. I therefore hold that there was no absolute statutory prohibition
under the Hindu Adoptions and Maintenance Act, 1956 against a
Hindu male taking in adoption his own illegitimate son. The fact
that Badlu was the biological father of the plaintiff does not, by
itself, invalidate the adoption. The validity of the adoption has to
be tested with reference to the statutory requirements applicable
on the date of adoption, including the capacity of the person
giving the child, the capacity of the person taking the child and
the actual giving and taking with the requisite intention. Although
the learned District Judge was not correct in invoking Section 9(4)
of the Act, the said error in the statutory reasoning does not, in the
facts of the present case, render the concurrent finding of the
courts below regarding the adoption unsustainable.
40. The more important question, therefore, is whether the concurrent
finding recorded by the courts below with regard to the impugned
sale deed suffers from any error of law so as to warrant
interference in the present second appeal.
41. The appellants have contended that the sale deed executed by
Badlu in their favour was a genuine and valid registered

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SECOND APPEAL No. – 1210 of 1980
instrument; that Badlu had voluntarily executed the same; and that
the consideration recited therein had been paid to him. It has
further been contended that the registration of the sale deed,
coupled with the endorsement made by the registering officer,
establishes its due execution and that the courts below erred in
discarding the registered document on the basis of oral evidence.
Reliance has also been placed upon Sections 58, 59 and 60 of the
Registration Act, 1908.
42. There can be no quarrel with the proposition that a registered
document is a piece of evidence entitled to due consideration and
that the fact of registration carries evidentiary significance. The
endorsement made by the registering officer with regard to
presentation, admission and registration of the document is a
relevant circumstance. But the fact of registration does not, by
itself, conclude the question where the execution of the document
is impeached on the ground of fraud, want of free and conscious
consent, undue influence or other circumstances vitiating the
transaction. The civil court is required to examine the entire
evidence and the circumstances surrounding the execution of the
document.
43. Sections 91 and 92 of the Indian Evidence Act, 1872, do not lay
down that a registered instrument is immune from challenge on
the ground of fraud or that its execution and the truth of every
recital contained therein stand conclusively established merely by
reason of registration. Where the very genuineness or voluntary
character of the transaction is questioned, the court is entitled to
consider the evidence led by the parties for determining whether
the document represents the true and voluntary act of the
executant.
44. In the present case, the courts below have not ignored the
registered character of the sale deed. The learned District Judge
considered the endorsement of the Sub-Registrar along with the

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SECOND APPEAL No. – 1210 of 1980
oral evidence and the surrounding circumstances of the
transaction. Upon such consideration, he concurred with the
learned Munsif that the sale deed was not a genuine and valid
transaction and that it had been obtained fraudulently.
45. The circumstances noticed by the learned District Judge are
material. The sale deeds recited payment of Rs.6,000/- to the
executant. The stamps were purchased on 16 June 1973 and 18
June 1973, whereas the sale deeds were stated to have been
executed on 18 June and 19 June 1973 and thereafter presented
for registration. The oral evidence led by the defendants with
regard to the payment of consideration, however, was not
consistent.
46. D.W.2 Budh Ram stated in his examination-in-chief that Badlu
had taken Rs.18,000/-. In cross-examination, he stated that
although Badlu had demanded Rs.18,000/-, he had been paid
Rs.6,000/- before the Sub-Registrar and that the sale deed had
been executed for that amount. D.W.3 Muni Ram stated that
Badlu had admitted having received Rs.6,000/-, but he was
admittedly not a witness to the payment. D.W.4 Hari Prasad gave
yet another version, stating that he had met Badlu at the registry
office, that Badlu had agreed to sell half his share in his favour,
that they returned to their house, where Badlu received Rs.3,000/-
from him, and that the sale deed was thereafter registered on the
following day. The learned District Judge was entitled to take
these material inconsistencies into consideration while assessing
the genuineness of the transaction.
47. It is, therefore, not correct to contend that the sale deeds were
cancelled merely because there was no independent receipt
evidencing payment of consideration. The finding of the courts
below was based upon the cumulative effect of the circumstances
proved before them, including the evidence relating to the
condition of Badlu, the manner in which he was taken to the

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SECOND APPEAL No. – 1210 of 1980
registry office, the evidence concerning payment of consideration,
the material inconsistencies in the statements of the defendants'
witnesses and the circumstances appearing from the registration of
the documents.
48. The question whether consideration was actually paid is distinct
from the question whether the document was voluntarily and
consciously executed by the person whose property was
purportedly conveyed. A recital in a registered instrument that
consideration has been received is a circumstance which may be
taken into consideration, but such recital cannot, by itself,
preclude the court from examining whether the instrument was
procured by fraud or undue influence or whether it represented the
free and conscious act of the executant.
49. The learned District Judge, after considering the evidence on
record, expressly affirmed the finding of the learned Munsif that
the sale deed was not a genuine and valid document and had been
obtained fraudulently. The said finding was thus not founded upon
the mere fact that the consideration was disputed, but upon an
appreciation of the evidence as a whole.
50. The appellants have also relied upon the fact that the sale deed
bears the thumb impression of Badlu and that he appeared before
the Sub-Registrar. These circumstances are undoubtedly relevant
and were required to be considered. But the mere presence of the
executant before the registering officer cannot, in the facts of the
present case, render the transaction immune from challenge. The
question remains whether the document was the result of the free
and conscious act of Badlu and whether the transaction
represented a genuine sale.
51. The first appellate court, being the final court of fact, considered
the evidence bearing upon these matters and concurred with the
findings recorded by the trial court. The appellants essentially

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SECOND APPEAL No. – 1210 of 1980
seek a different appreciation of the oral evidence and a different
inference from the circumstances proved on record. Such an
exercise does not fall within the limited jurisdiction of this Court
under Section 100 of the Code of Civil Procedure.
52. It is well settled that concurrent findings of fact cannot ordinarily
be interfered with in second appeal unless the findings are shown
to be perverse, based on no evidence, arrived at by ignoring
material evidence, founded upon an erroneous legal approach, or
are otherwise such that no reasonable court could have arrived at
them. The existence of another possible view of the evidence is
not, by itself, a ground for interference under Section 100 of the
Code of Civil Procedure.
53. Examined from the aforesaid standpoint, I find no such infirmity
in the findings recorded by the courts below. They considered the
registered nature of the sale deed as well as the endorsement of
the Sub-Registrar. They also considered the oral evidence of the
defendants' witnesses, the circumstances in which Badlu was
taken to the registry office and the evidence relating to the
payment of consideration. Upon an overall assessment of the
material, both courts concluded that the transaction was not
genuine and that the sale deed had been fraudulently obtained.
54. The contention that the appellants were neither related nor
otherwise connected with Badlu and, therefore, could not have
exercised undue influence, also does not demonstrate any error of
law in the concurrent findings. The existence or otherwise of a
formal relationship between the parties is not by itself
determinative of whether a transaction was voluntarily entered
into. The court is entitled to consider the condition of the
executant, the circumstances in which the transaction was brought
about, the conduct of the parties and all other surrounding
circumstances. The courts below considered the evidence in its
entirety and drew their conclusions therefrom.

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SECOND APPEAL No. – 1210 of 1980
55. Likewise, the fact that the sale deed was presented before and
registered by the Sub-Registrar cannot, by itself, conclude the
controversy. Registration establishes that the document was
registered in accordance with the procedure followed by the
registering authority; it does not prevent a competent civil court
from examining, upon appropriate evidence, whether the
transaction embodied in the document was in fact voluntary,
genuine and free from fraud.
56. The submission of the appellants that the evidence of their
witnesses was not contradictory in every respect also does not
furnish a ground for interference. The evidence has to be assessed
cumulatively and in the light of the surrounding circumstances. It
is not necessary that every witness examined on behalf of a party
should contradict another witness before the evidence of that party
can be disbelieved. The first appellate court considered the
material evidence and affirmed the conclusion reached by the trial
court.
57. The evidence concerning the consideration, therefore, cannot be
viewed in isolation. The material inconsistencies in the versions
given by the defendants' witnesses were one of the circumstances
considered by the courts below. The ultimate finding rested upon
the cumulative assessment of the evidence and circumstances
bearing upon the genuineness and voluntary character of the
transaction.
58. The appellants have also referred to the evidence relating to the
thumb impression and to the absence of any conclusive assistance
from the handwriting or fingerprint expert. The trial court noticed
that the expert evidence did not materially assist either side,
particularly as the original document with which comparison was
sought had not been produced. The first appellate court
nevertheless considered the other evidence available on record
and found the transaction to have been fraudulently obtained. No

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SECOND APPEAL No. – 1210 of 1980
material circumstance has been shown to establish that the courts
below ignored any legally admissible evidence which could have
altered the result.
59. It is thus not possible to characterise the concurrent finding of the
courts below as a finding based on no evidence. Nor can it be said
that the courts proceeded upon any proposition of law which is
demonstrably erroneous. The appellants seek, in substance, a fresh
appraisal of the evidence and a reassessment of the credibility of
the witnesses. Such an exercise is beyond the permissible scope of
jurisdiction under Section 100 of the Code of Civil Procedure in
the absence of perversity or a substantial error of law.
60. The expression “not duly executed for consideration”, occurring in
the substantial question of law, cannot be understood as requiring
this Court, in second appeal, to undertake a fresh determination
merely as to whether some amount of money was paid to Badlu.
The real controversy arising from the concurrent findings is
whether the impugned sale deed represented the genuine and
voluntary act of Badlu and whether the consideration asserted by
the defendants was proved in the manner claimed by them. The
courts below, upon appreciation of the evidence, answered those
questions against the defendants.
61. The finding so recorded is essentially a finding of fact. No
perversity, misreading of material evidence, absence of evidence
or violation of any binding rule of law has been demonstrated
before this Court. The first appellate court independently
considered the material evidence and concurred with the trial
court. Merely because another view of the evidence may be
possible would not justify interference in second appeal.
62. The present case is, therefore, not one where a registered sale deed
has been set aside merely upon suspicion or upon a bald allegation
of fraud. The challenge to the transaction was considered on the

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SECOND APPEAL No. – 1210 of 1980
pleadings and evidence, and the courts below examined the
circumstances attending the execution of the document, the
evidence concerning the consideration and the registration
endorsement before recording their concurrent finding. That
finding cannot be said to be perverse or such as no reasonable
court could have reached.
63. The first substantial question is accordingly answered as follows:
a Hindu male was not, merely by reason of being the biological
father of an illegitimate child, prohibited under the Hindu
Adoptions and Maintenance Act, 1956 from taking such child in
adoption, provided the statutory requirements of a valid adoption
were otherwise fulfilled. In the present case, the adoption being of
the year 1970, the subsequent U.P. requirement concerning
documentary proof of adoptions made on or after 1 January 1977
had no application. On the evidence accepted concurrently by the
courts below, the giving and taking of the plaintiff in adoption
was proved. The reference by the learned District Judge to Section
9(4) was not the correct statutory basis; nevertheless, the ultimate
conclusion that the plaintiff had been validly adopted by Badlu is
sustainable on the facts and law applicable to the adoption in
question.
64. The second substantial question is answered in the negative. The
concurrent finding of the courts below that the impugned sale
deed was not the genuine and voluntary transaction of Badlu and
that the consideration pleaded by the appellants was not
satisfactorily established has not been shown to be perverse, to be
based on no evidence, to be the result of misreading of material
evidence, or to be contrary to any binding rule of law. The
registered nature of the document did not make it immune from
challenge, and the courts below were entitled, upon consideration
of the evidence and surrounding circumstances, to hold that the
transaction was fraudulent and liable to be cancelled.

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SECOND APPEAL No. – 1210 of 1980
65. Before concluding, it is necessary to make one further
observation. The appellants had raised a number of additional
grounds concerning limitation, the form of relief, possession,
entries in the revenue records and the alleged status of Budh Ram
or other persons as co-tenure holders. The learned District Judge
dealt with some of these contentions, including the argument that
the suit should fail because possession had not been claimed. He
rejected that contention after noticing the Khatuni entries which
showed Budh Ram as next friend of the minor plaintiff and as co-
tenure holder with the respondent over the plots in suit. Those
matters, however, do not give rise to the two substantial questions
of law formulated for decision in this second appeal and do not
warrant reopening the concurrent findings on the issues which
have been decided.
66. In view of the foregoing discussion, neither of the substantial
questions of law framed for consideration warrants interference
with the judgments and decrees of the courts below. The decree of
the learned trial court, as affirmed by the learned District Judge,
therefore, does not call for interference in this second appeal.
67. The second appeal is, accordingly, dismissed.
The judgments and decrees passed by the learned trial court and
68.
affirmed by the learned District Judge, Basti in Civil Appeal No.
273 of 1979 by judgment dated 2 February 1980 are hereby
affirmed.
69. The appellants shall bear the costs of the appeal.
(Arun Kumar, J.)
September 3, 2026
Ranjeet Sahu
Digitally signed by :-
RANJEET SAHU
High Court of Judicature at Allahabad