( 2025:JHHC:10367 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 152 of 2017 1. Chandri Devi widow of Late Laxman Mahto 2. Jhuni Devi daughter of Late Laxman Mahto 3. Mahendra Mahto son of Late Laxman Mahto 4. Ajay Mahto son of Late Laxman Mahto All resident of Village- Bihoroji, Tq- Bahinga, P.O.- Kushmala, P.S.- Mohanpur, District- Deoghar … Plaintiffs/Appellants/Appellants -Versus- Munshi Yadav son of Dhanraj Mahto, falsely claiming to be the adopted son of Gono Mahto and Smt. Kusia Mahtwain, resident of Village- Bihoroji, Tq- Bahinga, P.O.- Kushmaha, P.S.- Mohanpur, District- Deoghar … Defendant/Respondent/Respondent --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Arvind Kumar Choudhary, Advocate For the Respondents : None --- 12/22.01.2025 Heard the learned counsel appearing on behalf of the appellants. 2. As per office note, in spite of service of notice upon the respondent, nobody has entered appearance. 3. This second appeal has been filed against the Judgement dated 10.01.2017 and the decree sealed & signed on 19.01.2017 passed by the learned District Judge-V, Deoghar in Title Appeal No.37 of 2012 whereby and whereunder the appeal has been dismissed, confirming the Judgment dated 25.09.2012 and the decree sealed & signed on 08.10.2012 passed by the learned Subordinate Judge, No.3, Deoghar in Title Suit No.34 of 1983 whereby and whereunder the suit was dismissed on contest. 4. This appeal was admitted for hearing vide order dated 01.10.2018 on the following substantial questions of law: (i) Whether onus lies upon the person who asserts adoption as the adoption is not through registered deed, rather factum of adoption has been registered after 13 years? (ii) Whether both the courts below have erred in law by presuming adoption prima facie valid on the strength of ( 2025:JHHC:10367 ) 2 registration of the memo of adoption after 13 years is sustainable in law or not? 5. Learned counsel for the appellants has submitted that the suit was filed seeking a declaration that the Defendant No.5 namely, Munshi Yadav was never adopted by Defendant Nos. 1 and 2 who were the alleged adoptive parents of Munshi Yadav, nor they were even given Munshi Yadav on adoption by Defendant Nos. 3 and 4 who were the natural parents of Munshi Yadav. A prayer was also made seeking a declaration that the alleged deed of adoption executed by Defendant 1st party and Defendant 2nd party on 07.03.1983 which was registered at Deoghar Registry Office in favour of Defendant No.5 is void, illegal and a paper transaction. An alternative relief was also sought that if it is found that there was in fact adoption, the same be cancelled, since the said deed offends the mandatory provision of law, and a permanent injunction was also sought for restraining the Defendant No.5 from enforcing any right as adopted son of Defendant 1st Party and cost of the suit. 6. Learned counsel for the appellants has submitted that Defendant Nos. 1 and 2 were the adoptive parents. Defendant No.5 was Munshi Yadav, the adopted son and Defendant Nos. 3 and 4 were the natural parents of Defendant No.5. He further submitted that after death of the original Plaintiff No.1, he was substituted by his legal heirs, who are the appellants before this Court. He also submitted that it has been recorded in Paragraph-4 of the trial court judgment that during the pendency of the suit, the Defendant Nos. 1, 2, 3, 4 and Plaintiff No.2 died and their names were deleted on the prayer of the plaintiffs. He submitted that the name of Plaintiff No.2 was deleted as his legal heirs were already on record and consequently, four substituted plaintiffs and one defendant remained in the suit. 7. The learned counsel for the appellants submitted that both the courts have erred in law in not considering the Exhibits- 1 and 1/1 adduced on behalf of the plaintiffs which were the two voter lists of Deoghar Assembly; one was prepared in the year 1980 and the other was prepared in the year 1975 in which age of Munshi Yadav was ( 2025:JHHC:10367 ) 3 recorded as 31 years and 26 years respectively and his parentage was also shown to be son of his natural father. The learned counsel for the appellants further submitted that the deed of adoption was registered on 07.03.1983 stating that the adoption had taken place way back in the year 1970. The deed was registered after 13 years of the alleged adoption and on the date of adoption way back in the year 1970, the Defendant No.5 was more than 20 years of age. He submitted that deed of adoption cannot be taken as gospel truth and accordingly, the substantial question of law as framed by this Court is fit to be decided in favour of the appellants. 8. After hearing the learned counsel for the appellants, this Court finds that the learned Trial Court after scrutinizing the materials on record has recorded a finding that the plaintiff failed to prove his case that Munshi Yadav was 20 years of age at the time of said adoption and he was married at that time. The findings in connection with the age and other materials with regard to adoption have been recorded in Paragraph- 13 to 16 of the Trial Court’s judgment which are quoted as under:- “(13) After analysing the evidence of plaintiff, it is clear that witness no.2 is plaintiff no. 1A himself and his other two witness Baldeo Yadav and Mahru Mahto. Neither Baldeo Yadav, nor Mahru Mahto stated in his evidence that Munshi Mahto is married at the time of adoption. Chandri Devi stated in his evidence that Munshi Yadav was married at the time of said adoption. Aforesaid evidence of plaintiff has not corroborated by any other plaintiff witnesses. In Ext. 'A' the word address for adopting son is Babua Ramesh, the second son of Dhanraj Mahto. He also described that actual adoption ceremony is observed on 10/02/1970 and on that day age of Babua Ramesh is 10 years. Munshi Mahto has stated in para 23 of his cross-examination his marriage was taken place when he attended 25 years old. As such it is clear that as per the said witness, he has not married at the age of 10 year. Since the plaintiff failed to corroborate his evidence by any other witnesses that Gono Mahto is married at the time of said adoption. As such on the basis of age ( 2025:JHHC:10367 ) 4 mention in Ext ' A' and the word Babua Ramesh, it is say that Munshi Mahto is unmarried at the time of adoption. (14) Plaintiff stated in para 9 that the defendant Munshi Yadav born in the year of 1950. Plaintiff witness Mahru Mahto has not deposed regarding age of Munshi Yadav. From Ext-1 which is the voter list of village Bihroji, it transpires that the age of Munshi Yadav and his brother described 31 year and age of Dhangraj Yadav described as 44 year as per 01-01-1980. From the evidence of defendant, it is clear that Munshi Yadav is the second son of Dhanraj Yadav. As such both the son of Dhanraj Yadav has not possible the same age. If age of Dhanraj Yadav is 44, then Munshi Yadav is born when Dharaj Yadav is 13 year old. It is not possible in nature that a 13-year-old man produced two sons. As such circumstance, it is say that Ext. I is prepared on the basis of wrong information and it is not free from ambiguity, Ext. 'D' described the year of birth of Munshi Yadav as 1965 and Ext. C describe age 38 on 01/01/2003 and on the basis of the said exhibit, after calculation any person say that in 1970 Munshi Yadav is 5 year old. As such 1 not feel just to come in conclusion regarding the real age of Munshi Yadav on the basis of the said document and feel just to derive conclusion on the basis of oral evidence. Dhanraj Mahto who is natural father of Munshi Mahto stated in his evidence that the age of Munshi Yadav at the time of adoption is 10 years. Aforesaid evidence supported by neutral witness no.1, 4, 9 of Bihroji village. From Et." A', it is also clear that on 10/02/1970 age of Munshi Mahto is 10 years. As such from the evidence of witnesses, it is clear that the age of Munshi Mahto at the time of adoption is 10 year. (15) Section 9 of the Hindu Adoption and Maintenance Act, 1956 prescribed regarding person capable of giving in adoption. Sub- section 2 of section 9 described that the father, if alive, shall alone have the right to give in adoption but such right shall not be exercised save with the consent of mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu. The term father and mother in Section 9 mean as natural father and natural mother and not the step father, step mother. From the evidence of defendant witness, it is clear that the natural mother ( 2025:JHHC:10367 ) 5 of Munshi Yadav is died when he was six months old. As such it is clear that at the time of adoption, natural mother is died and step mother participated in adoption, whose consent is not required prior to given in adoption by natural father. As such circumstances, I find no force in pleas of learned lawyer of plaintiff that prior to given adoption, the consent of his mother is not obtained. (16) On the basis of the above discussion, I find and hold that plaintiff failed to prove his case regarding Munshi Yadav was 20 years old at the time of said adoption and he was married at that time. As such circumstance, I find and hold that Munshi Yadav is the legally and valid adopted by Gono Mahto and Kushiya Mahatwain and registered deed of adoption dated 07/03/1983 is valid document and accordingly both issues disposed off.” 9. The learned Appellate Court also considered the materials on record and also took care of Exhibit-1 and Exhibit-1/1, which have been referred to by the learned counsel for the appellants, vide Paragraph-13 and 14 of the Appellate Court’s judgment. The learned Appellate Court held that voter list is not a document in proof of the date of birth and it cannot be relied upon to say that Munshi Yadav was major in the year 1970 and therefore, not eligible for being taken for adoption. The findings recorded by the learned Appellate Court in connection with the age of Munshi Yadav in Paragraph- 13 and 14 of the Judgment are as under:- “(13) The plaintiffs/appellants have tried to rebut the presumptions on the basis of oral evidences of their three witnesses as well as on the basis of two documents (Ext.1 & 1/1). Their main contentions are two fold- first, that no giving and taking ceremony ever took place in the village in the year 1970 and second that on the day of the alleged adoption i.e. 10.2.1970, Munshi Yadav was not capable of being taken in adoption. In the year 1970, the age of Munshi Yadav was more than 20 years and he was still living with his natural father Dhanraj Mahto. In support of their submissions, the appellants/ plaintiffs have relied upon Exhibits No. 1 and 1/1. These exhibits are the two voter lists of 158 Deoghar assembly election area. Ext.-1 is the voter list prepared in 1980 and Ext-1/1 is the voter list prepared in 1975. In Ext. 1/1 at serial no 208 the name of Munshi Yadav son ( 2025:JHHC:10367 ) 6 of Dhanraj Yadav is mentioned and age has been recorded as 26 years. Similarly, in Ext-1, the name of Munshi Yadav is mentioned at serial no. 240 and his age is recorded as 31 years. (14) Learned Counsel for the appellants / plaintiffs have submitted that if Munshi Yadav was aged about 26 years in 1975, then in 1970 (the year of his adoption), his age was about 21 years and therefore, he was not eligible for valid adoption as per the condition laid down in Sec. 10 (iv) of the Act. The learned lower court has failed to appreciate this fact and has wrongly dismissed the suit. However, it is well settled that voter list is not an authentic proof of the age of a person. Therefore, relying upon the voter list to show that Munshi Yadav was more than 21 years of age in the year 1970 will be not only erroneous, but also against the settled principle of law. In Gayatri Devi-Vs-State of Jharkhand & others 2016(3) JLJR 622, the Hon'ble Jharkhand High Court has held that a voter list is not a document in proof of date of birth. Hon'ble Supreme Court, in Akbar Sheikh vs State of W.B. (2009) 7 SCC 415, has also held that voter list is not decisive in determining the age of a person. Therefore, on the basis of the entries made in a voter list, it cannot be held that Munshi Yadav was a major in the year 1970 and therefore, not eligible for being taken into adoption. The documents and other materials on which such entries are made are not available to the court and therefore, it is not safe to rely upon those entries made in the voter list. Such lists and entries also become doubtful when the person whose name appears in it himself contest their genuineness. Both Gono Mahto and Kusia Mahatwain (the adoptive parents) and Dhananjay Mahato (natural father) have admitted in their written statement dated 16/01/1984 that Munshi Yadav was validly adopted on 10/02/1970 and on that day he was only 10 years old. The plaintiffs/appellants have not adduced any legal and reliable evidence to rebut this fact.” 10. With regard to the ceremonies of adoption, the learned Trial Court and the First Appellate Court have scrutinized the materials on record and the finding of the learned Appellate Court in that connection has been recorded in Paragraph-16 wherein the learned ( 2025:JHHC:10367 ) 7 Appellate Court after scrutinizing the materials recorded that giving and taking ceremony of Munshi Yadav took place on 10.02.1970. 11. This Court further finds that the learned Trial Court as well as the learned Appellate Court have scrutinized the materials and have recorded findings in connection with compliance of the basic ingredients of adoption. This Court further finds that D.Ws. 3, 4 and 5, who asserted that there was a legal and valid adoption in the year 1970, have not only based their case on the basis of registered deed which was registered after 30 years, but have also proved the case of adoption by leading evidence. The specific case of the plaintiffs that Munshi Yadav was major on the date of adoption in the year 1970 has been specifically discarded by both the courts by citing reasons and after scrutinizing the materials on record. Accordingly, this Court is of the considered view that the factum of adoption has been duly proved by the Defendant No.5 and the onus having been discharged by the Defendant No.5, the first substantial question of law is answered against the appellants and in favour of the respondent. 12. So far as the second substantial question is concerned, upon scrutinizing the materials, this Court finds that both the courts having scrutinized the materials on record and having found that the factum of adoption in the year 1970 was duly proved and they have not simply relied upon the registration of memo of adoption, the second question of law is also answered against the appellants and in favour of the respondent. 13. Both the substantial questions of law having been answered against the appellants and in favour of the respondent, this second appeal is hereby dismissed. 14. Let this order be communicated to the court concerned through FAX. (Anubha Rawat Choudhary, J.) Binit