Presumption U/S 16 HAMA Conditional Upon Signing Of Adoption Deed By Persons Giving And Taking Child In Adoption: Bombay HC

“Only because the adoption deed is a registered document it cannot be accepted as having presumptive value under Section 16. The presumption under Section 16 is applicable only if the document records the particulars of the adoption made and it is signed by the person giving and the person taking the child in adoption.”

For context, Section 16 provides that the court shall presume adoption if any registered document purports to record an adoption made and is signed by the person giving and the person taking the child in adoption.

Justice Gauri Godse was considering the appellant's plea seeking exclusive rights in the suit properties on the ground that he was the adopted son of one Pandurang and his wife (defendant no.1).

The Trial Court had dismissed respondents/plaintiffs' suit for partition and separate possession and thus they preferred an appeal before the first Appellate Court. The first Appellate Court disbelieved that the appellant (defendant no. 2) was the adopted son of Pandurang and defendant no. 1. However, it did not reverse the trial court's findings and said that plaintiffs and defendant no. 2 were entitled to equal shares and decreed the suit granting 1/4th share each to the plaintiffs and defendant no. 2.

In the present case, the High Court considered the validity of the adoption theory claimed by the defendants.

The Court noted that the particulars about the exact year or date of adoption were neither pleaded nor proved. It noted that neither the documents nor oral evidence relied by the defendants proved that appellant/defendant no. 2 was the adopted son.

It observed that the mere execution of the adoption deed cannot be valid proof to support the claim of adoption.

On the presumption under Section 16, it observed that the document was not signed by the person giving in adoption i.e., his mother. It noted that in the absence of her signature, the presumption under Section 16 would not arise.

“In the present case, admittedly, the document is not signed by the person giving in adoption. On the date of the adoption deed, the biological mother was alive; thus, in the absence of her signature, the presumption under Section 16 shall not be applicable. Thus, in the facts of the present case, the presumption under Section 16 would not assist the appellant's arguments.”

It stated that the burden to prove the valid adoption was upon the defendants, which they failed to prove. Thus, it observed the suit properties would not exclusively devolve upon appellant/defendant no. 2.

It partly modified the First Appellate Court's order, holding that respondents/plaintiffs and appellant/defendant no. 2 are entitled to 1/3rd share each in the suit properties.

Case title: Nivritti Pandurang Nale vs. Uttam Ganu Nale & Anr (Second Appeal No. 13 Of 1994)

Citation: 2025 LiveLaw (Bom) 142