JUDGMENT : G.K. Misra, C.J. - One Kusha Majhi had two wives Gouri and Pama. Kusha died near about 1946 and Pama in 1956. Gouri died near about ]962. The Plaintiff claims to be son of Kusha through Pama. Gouri had admittedly no issues. The disputed properties belong to Kusha. The Plaintiff's suit was for declaration of tide and recovery of possession. There was a proceeding u/s 145, Code of Criminal Procedure in between the Plaintiff and the Defendant which terminated in favour of the Defendant. The Plaintiff's case was that Kanda Majhi, the husband of the Defendant, was kept, as a servant by Kusha ever since his childhood. The Defendant, on the other hand, contested the suit saying that Kanda was adopted by Kusha as Gouri bore no child to him and that the Plaintiff was not the son of Kusha nor Pama was his married wife. 2. The learned subordinate Judge held that the Plaintiff was the son of Kusha and Kanda was kept by Kushaa in the family as a servant and he disbelieved the story of adoption of Kanda, and accordingly decreed the Plaintiff's suit for declaration of title and recovery of possession. 3. Mr. Dasgupta appearing for the Defendant assailed the finding of the learned Subordinate Judge accepting the Plaintiff as the son of Kusha through Pama as his second married wife. Though Mr. Dasgupta assailed the finding nothing substantial was urged by him to satisfy us that the finding recorded by the learned Subordinate Judge was contrary to law or not based on materials on record. It is therefore, unnecessary for us to repeat the reasoning given by the learned subordinate judge in support of the finding that the Plaintiff is the son of Kusha Majhi. We accordingly accept that finding. 4. The only question which was seriously canvassed was whether Kanda was the adopted son of Kusha. It is to be noticed that the Defendant also did not come out with the full truth in urging that the Plaintiff was not the son of Kusha. Though the Defendant did not admit the Plaintiff as the son of Kusha, she is not precluded from presenting her claim that her husband was the adopted son of Kusha. The onus rests very heavily on her to establish adoption which displaces the natural fine of succession. There is no documentary evidence in this case. Though the Defendant did not admit the Plaintiff as the son of Kusha, she is not precluded from presenting her claim that her husband was the adopted son of Kusha. The onus rests very heavily on her to establish adoption which displaces the natural fine of succession. There is no documentary evidence in this case. The Defendant shall have to ordinarily prove that there was giving and taking ceremony which alone would validate the adoption. Admittedly there is no evidence of giving and taking. The Plaintiff was born in 1914. Kanda, as it transpires from the evidence, was about 6 to 10 years older than the Plaintiff. The defence story is that the adoption took place when Kanda was hardly 1 or 2 years old. The adoption if any, took place a bout 60 years back. It is, therefore, an ancient adoption and the evidence of giving and taking even if true has been obliterated. The case must, therefore, be decided on the basis of oral evidence as to treatment of Kanda in the family of Kusha over a length of years. 5. The learned Subordinate Judge in paragraph 8 of his judgment records the following findings: The facts as elicited in evidence are that Kanda was living in the house of Kusha. After his marriage, his wife Sankhi also lived in the house of Kusha. They were thus living and cultivating the lands of Kusha even after Kusha's death and till the death of Gouri. It is after the death of Gouri both the Plaintiff and the Defendants quarreled and Sankhi went away with all the movables even with the house building materials after demolishing the house of Kusha to the house of Chandra Mohan and lived there. So production of certain rent receipts by Sankhi and the assessment of Sankhi to separate Choukidari tax are commensurate with her living in the house of Kusha and not contradictory to it. Even the p.ws. are very straight forward to admit that Kanda and Sankhi were living in the house of Kusha. 6. The following features transpires from the evidence adduced by the parties: (i) Kanda was brought up at least from his 4th or 5th year in the house of Kusha. (ii) Kanda was addressing Kusha and Gouri as father and mother. This appears from the evidence of d.w. 7 who was a relation of Kusha. 6. The following features transpires from the evidence adduced by the parties: (i) Kanda was brought up at least from his 4th or 5th year in the house of Kusha. (ii) Kanda was addressing Kusha and Gouri as father and mother. This appears from the evidence of d.w. 7 who was a relation of Kusha. Gouri, the wife of Kusha was d.w. 7's father's sister. D.W. 7 says that he has heard Kanda addressing Kusha as father and Gouri as mother. This evidence is admissible u/s 50 of the Evidence Act which lays down that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct, as to the existence of such relationship of any person who as a member of the family or otherwise has special means of know ledge on the subject, is a relevant fact. In this case we are to form an opinion as to the relationship of Kanda with Kusha. D.W. 7 as a relation of Gouri has special means of knowledge of knowing as to the existence of the relationship. The opinion of d.w. 7 is expressed by the conduct that he had heard Kanda addressing Kusha as father and Gouri as mother. His evidence, therefore, comes within the ambit of Section 50 of the Evidence Act and is relevant. Doubtless he also deposed that the Plaintiff was not the son of Kusha and to that extent came forward with an untrue story; but this is usual with these witnesses. His entire evidence can not be discarded merely because he deposed contrary to facts as to a part of the case. We have perused his evidence and we are satisfied that his evidence on this part of the case reflects the truth. To the same effect is the evidence of d.w. 8. His house and that of Kusha Majhi are demarcated by a fence only. He is an immediate neighbour. He had, therefore, full opportunity of knowing the relationship amongst the parties. His statement is that Kanda addressed Kusha and Gouri as father and mother respectively. (iii) It is not disputed that Kanda from his childhood till his death was in the house of Kusha and after his death his wife, the Defendant, also continued to live in the house 2 to 3 years after the death of Gouri near about 1962. His statement is that Kanda addressed Kusha and Gouri as father and mother respectively. (iii) It is not disputed that Kanda from his childhood till his death was in the house of Kusha and after his death his wife, the Defendant, also continued to live in the house 2 to 3 years after the death of Gouri near about 1962. (iv) It is also not disputed that Kanda was got married by Kusha in his house and he lived there after his marriage with the Defendant. (v) After the death of Gouri I the Plaintiff and the Defendant lived in the house for two to three years where after dissensions arose. During these 2 to 3 years rent for the lands and Panchyati tax for the house were paid both in the names of the Defendant and the Plaintiff. The Plaintiff did not raise any objection that the Defendant ad no right, title and interest in the properties and so not entitled to pay tax. It is in the evidence of d.w. 4 that on valuation of properties of persons Panchayati tax is paid. Exts. D, E and F series shows that taxes were also paid by the Defendant. No such tax could be accepted from her unless she had a claim to the properties of Kusha. 7. The aforesaid features summarised above show that Kanda was treated as a member of the family of Kusha as a son. The conflicting stories between the parties are whether Kanda who an adopted son or he was a servant of Kusha. The case is to be decided on the balance of probabilities and on weighing these features we are of opinion that he would not have been entitled to the aforesaid facilities for over 50 to 60 years unless he would have been an adopted son. Evidence of giving and taking has been obliterated by long lapse of years and the presumption would be that there was the ceremony of giving and taking. 8. Mr. Sinha place reliance on Harihar Rajguru Mohapatra and Another Vs. Nabakishore Rajaguru Mohapatra and Others, ; Balinki Padhano and Another Vs. Gopakrishna Padhano and Others, and L. Debi Prasad (Dead) by Lrs. Vs. 8. Mr. Sinha place reliance on Harihar Rajguru Mohapatra and Another Vs. Nabakishore Rajaguru Mohapatra and Others, ; Balinki Padhano and Another Vs. Gopakrishna Padhano and Others, and L. Debi Prasad (Dead) by Lrs. Vs. Tribeni Devi and Others in support of his contention that presumption of existence of giving and taking ceremony in case of an ancient adoption is drawn only where there are authentic documents in support of the story of adoption. The contention, as presented, is doubtless sound. But the converse is not true. If there are authentic documents either admitting adoption or proving disposal of property on the footing of a claim of adoption the presumption can be easily drawn in Case of an ancient adoption that there was the ceremony of giving and taking when actual proof thereof is not available. It does not however follow that the case of adoption would be thrown out merely because there is absence of documents. The learned advocates for the parties were called upon to find out authorities wherein purely on the basis of oral evidence a conclusion one way or the other had been drawn. Mr. Dasgupta and Mr. Sinha who are senior advocates of the Bar stated that not a single case was available wherein a conclusion in case of an ancient adoption was taken purely on the basis of oral evidence. As we have already said, where documents are available the case would doubtless stand on a strong footing and unassailable conclusions can be easily derived. If unimpeachable oral evidence can be had from which a person can be found to have been treated as adopted son in the family covering over a prety length of time and where evidence of giving and taking is not available there is no reason why the adoption would not be upheld on the identical principle purely on oral evidence enunciated in the aforesaid decisions. 9. On the aforesaid analysis, we are of opinion that Kanda was the adopted son of Kusha and he had been adopted prior to the marriage of Kusha with Pama and necessarily before the birth of the Plaintiff. 10. The parties are Sudras. Therefore the Plaintiff and Kand would be entitled to half share each. 9. On the aforesaid analysis, we are of opinion that Kanda was the adopted son of Kusha and he had been adopted prior to the marriage of Kusha with Pama and necessarily before the birth of the Plaintiff. 10. The parties are Sudras. Therefore the Plaintiff and Kand would be entitled to half share each. After the passing of the Hindu Women's Right to property Act, 1937 the Defendant is entitled to the (sic) me share as Kanda on his death in early part of 1956. The Plaintiff is, therefore, entitled to half the interest in the entire property. 11. As the Plaintiff claimed the entire property to the exclusion of the Defendants, there was no prayer for partition. On our finding that the Plaintiff and the Defendant are equally entitled to the entire property, to avoid future litigation a preliminary decree for partition should be passed. The Plaintiff has paid advalorem Court fee on declaration of title and recovery of possession. If the Plaintiff would have brought a suit for partition of the entire property with a prayer for allotting half of the property to his share he would have paid less Court fee. The prayer for partition can be granted without payment of further Court fees. 12. In the result, the appeal is allowed in part. The judgment and decree of the trial Court are modified and a preliminary decree for partition wherein the property would be divided in two equal shares between the Plaintiff and the Defendant allotting half the share to the Plaintiff is hereby passed. Parties would bear their own costs throught. S. Acharya, J. 13. I agree.