Case Note & Summary
The appellant, Smt. Parvathamma, filed a suit in O.S.No.277/1989 before the Principal Munsiff and JMFC, Tumkur, seeking a declaration that the first respondent, Shivakumar @ Shivanna, is not the adopted son of the appellant and her deceased husband Veeranna, and for cancellation of the adoption deed dated 27.05.1987. The appellant contended that she and the second respondent, Siddamma, are sisters, and the first respondent is the natural son of the second respondent. The appellant alleged that the adoption deed was obtained by fraud and misrepresentation, and that no actual giving and taking of the child took place as required under the Hindu Adoptions and Maintenance Act, 1956. The trial court decreed the suit in favor of the appellant on 13.03.1997, holding the adoption invalid. The respondents appealed to the Principal District Judge, Tumkur, in R.A.No.514/2004, which allowed the appeal and dismissed the suit on 29.03.2006. The appellant then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed the substantial question of law as to whether the adoption was valid. The court analyzed the evidence and found that the defendants failed to prove the actual giving and taking of the child, which is a mandatory requirement under Section 11 of the Hindu Adoptions and Maintenance Act, 1956. The court held that the presumption under Section 16 of the Act was rebutted by the plaintiff. Consequently, the High Court allowed the appeal, set aside the judgment of the lower appellate court, and restored the decree of the trial court, declaring the adoption invalid and ordering cancellation of the adoption deed.
Headnote
A) Hindu Law - Adoption - Validity of Adoption - Section 11, Hindu Adoptions and Maintenance Act, 1956 - Actual giving and taking of child essential - The court held that for a valid adoption, there must be actual giving and taking of the child, which is a mandatory requirement under Section 11 of the Act. The mere registration of an adoption deed does not prove adoption in the absence of evidence of actual giving and taking. (Paras 10-15) B) Hindu Law - Adoption - Presumption under Section 16 - Section 16, Hindu Adoptions and Maintenance Act, 1956 - Presumption of adoption from registered deed is rebuttable - The court held that the presumption under Section 16 that adoption has been made in compliance with the Act is rebuttable. The plaintiff successfully rebutted the presumption by showing that the defendants failed to prove the actual giving and taking. (Paras 12-16) C) Evidence - Burden of Proof - Adoption - The court held that the burden of proving adoption lies on the person who asserts it. In this case, the defendants failed to discharge the burden by not examining the natural mother or any witness to the giving and taking. (Paras 13-15)
Issue of Consideration
Whether the adoption of the first defendant by the plaintiff and her deceased husband is valid under the Hindu Adoptions and Maintenance Act, 1956, and whether the plaintiff is entitled to a declaration that the adoption is invalid and cancellation of the adoption deed.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored the decree of the trial court. The suit was decreed declaring that the first defendant is not the adopted son of the plaintiff and her deceased husband, and the adoption deed dated 27.05.1987 was ordered to be cancelled.
Law Points
- Adoption
- Hindu Adoptions and Maintenance Act
- 1956
- Section 11
- Section 16
- Giving and taking in adoption
- Presumption of adoption
- Burden of proof
- Registered adoption deed
