1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.235 OF 2007 Magan @ Bhagwan Balasing Rajput & anr...Appellant V/s. Krishnasing Balasing Rajput ..Respondent Mr.A.B.Vagyani, advocate, for the appellants Mr.Sidharth Kharpe i/b.Mr.S.P.Pawar, advocate, for the respondent CORAM : A.S.OKA, J. DATE : 22ND FEBRUARY, 2008 P.C. . The submissions of the learned advocates appearing for the parties were heard on the last two dates. With a view to appreciate the submissions it will be necessary to refer to the facts of the case in brief. 2. The respondent is the original plaintiff and the appellants are the original defendants. According to the case of the respondent, suit property was originally owned by one Harisingh Rajput. He died leaving behind his wife Chandrabai 2 and daughter Parvati. The said Parvati married to one Balasing Rajput. The respondent and the appellants are the sons of the said Balasing and Parvati. According to the case of the respondent, Chandrabai, the widow of Harisingh adopted the respondent/plaintiff on 26th June, 1940. The case of the respondent is that in view of the adoption, after demise of Chandrabai, he became the owner of the suit property. The appellants were in possession of the suit property. Therefore, a suit for declaration of ownership and possession was filed by the respondent. 3. The suit was contested by the first appellant by filing Written Statement. The first appellant denied the adoption dated 26th June, 1940. A contention was raised in the Written statement that there was no such adoption made in the year 1940 and in any event, the said Chandrabai had not obtained consent of the natural parents of the respondent. It was contended that Chandrabai being a widow could not have been taken the respondent in adoption. It is submitted that the respondent 3 cannot claim any rights as an adopted son of Chandrabai and the appellants are entitled to a share in the suit property. The trial Court accepted the case made out by the respondent and decreed the suit. The Appeal preferred by the appellants against the decree of Trial Court has been dismissed by the first Appellate Court. 4. The first submission of the learned advocate appearing for the appellants is that even on plain reading of the certified copy of Deed of Adoption, it is very clear that Chandrabai did not obtain consent of respondent's mother before purporting to taking the respondent in adoption. He submitted that the adoption was, therefore, invalid. He submitted that apart from witness No.3 examined by the respondent there were other persons who were personally present at the time of adoption and they have not been examined. He submitted that the original document of the adoption is not produced on the ground that the same was destroyed in the fire in the house of the respondent and in fact, the respondent has not led any evidence to show 4 that there was such a fire in his house. He submitted that no case was made out for adducing the secondary evidence of the Deed of Adoption and therefore, the presumption under Section 90 of the Indian Evidence Act, 1872 could have been applied to the certified copy of the Deed of Adoption. He submitted that as the adoption has taken place prior to come in force of the Hindu Adoption and Maintenance Act,1956, the presumption U/s.16 of the said Act will not be applicable to the said adoption and therefore, the said document cannot be accepted as an evidence of a valid adoption. 5. The learned advocate for the respondent supported impugned Judgment and Decree by pointing out the material on record. 6. I have carefully considered the submissions. The Judgments of both the Courts below and in particular the Appellate Court clearly show that the Courts were conscious of the fact what was being produced was a certified copy of registered Deed of Adoption dated 27th June, 1940 and not the 5 original deed. The Appellate Court has referred to the case made out by the respondent that the Deed of Adoption and the photographs taken out at the time of adoption were destroyed when the respondent's house was gutted in fire. The Appellate Court has noted that the respondent did not mention in his evidence specifically as to when the house was destroyed in fire. The document is of the year 1940. The certified copy of the Deed of Adoption has been produced by the respondent. Merely because the respondent did not disclose specifically the date on which his house was destroyed in fire, the case made out by the respondent that the original document of adoption was destroyed in the fire could not have been altogether discarded. The evidence on record was sufficient to make out a case for leading secondary evidence of a registered document by producing a certified copy thereof. 7. It must be noted that there is enough material on record to show that the Deed of Adoption was acted upon by the concerned parties. 6 The Courts below have referred to Mutation Entry effected in October, 1949 on the basis of the registered Deed of Adoption. The finding of the Courts below and in particular the Appellate Court is that Mutation Entry was certified on the basis of the application made by said Chandrabai herself on the basis of the adoption of the respondent. 8. The Deed of Adoption itself discloses that Chandrabai obtained consent of the natural father of the respondent. My attention has been invited to the deposition of Mr.Mahadeo Nivrutti Jadhav who was examined by the respondent. He deposed that on the request made by Chandrabai, father and mother of the respondent agreed to give the respondent in adoption to Chandrabai. He has deposed about religious ceremonies performed at the time of adoption. In the cross examination the witness stated that he was present when initial talks between Chandrabai and the parents of the respondent took place. In his cross examination there is hardly challenge to the statement made in the examination-in-chief that both the parents of 7 the respondent consented for adoption. The evidence of the aforesaid witness has been considered by both the Courts below. 9. Considering the aforesaid aspects, there are concurrent findings of the fact recorded by the Courts below as regards the proof of adoption. The Courts below in the light of evidence on record have come to the conclusion that the said adoption was legal and valid. Moreover a finding of the fact is that the adoption deed was acted upon by the concerned parties. 10. Considering the aforesaid aspects it is very difficult to find a fault with the findings recorded by the Courts. No substantial question of law arises. Accordingly, the Second Appeal is dismissed. (A.S.OKA, J.)