JUDGMENT : K.B. Panda, J. - This is an appeal preferred by Defendants 1 and 2 out of 17 Defendants in a suit for partition and permanent injunction brought by the Petitioner, which was decreed by the Third Additional Subordinate Judge, Cuttack on 27-2-1967. 2. The facts shortly stated are thus: According to the genealogy given in the impugned judgment, which is not challenged, one Binod Sahu, since dead, had four issues. The eldest one was a daughter named Bauri (D. 1) and others were sons Madhab, Krushna and Sidha in order. Bauri (D. 1) was married to Chintamani (D. 2). Out of the three sons Madhab and Krushna were married but not Sidha. Unfortunately, all the three sons died of cholera one after the other within a month towards Asadha 1950. The first two sons, Madhab and Krushna, left their widows Full and Chanda who are Defendants 6 and 7 respectively in the suit. Needless to say having lost all the three sons in such quick succession at that evening of his life at 70, Binod became very much depressed. Thus becoming sonless he approached his daughter for giving a son in adoption to perpetuate his line, but as said in the plaint, there was no response. In disappointment he approached his sister who had three sons. She, however, gave in adoption her last son Dasarathi (Petitioner) on 10-10-1950. In acknowledgment of the said adoption by Binod, a registered deed dated 14-3-1951 was drawn up (Ext. 2). Further, on 29-5-1951, Binod also registered a deed of gift (Ext. 1) in favour of Dasarathi, his adopted son, in respect of Schedule ?D? property. The same day, i.e. 29-5-1951, Binod also registered a deed of gift (Ext. 4) in respect of Schedule E properties (A.O. 50 decimals) in favour of D. 1, as he had promised to give the lands to her at the time of her marriage. Again the same day Ext. 3, a registered agreement, was executed by the Petitioner in favour of his adoptive father, Binod, not to alienate the properties during Binod?s lifetime. On 25-6-1951 Defendants 6 and 7, the two widowed daughters -in-law of Binod, executed a registered sale deed in favour of Binod and the Petitioner (Ext. 9) in respect of Schedule ?B? properties. The Petitioner and some times his brothers were looking after bereaved Binod, when the Petitioner was given in marriage by Binod. On 25-6-1951 Defendants 6 and 7, the two widowed daughters -in-law of Binod, executed a registered sale deed in favour of Binod and the Petitioner (Ext. 9) in respect of Schedule ?B? properties. The Petitioner and some times his brothers were looking after bereaved Binod, when the Petitioner was given in marriage by Binod. But since the Petitioner was serving as a bearer in the Ravenshaw College, Cuttack, he requested Defendants 1 and 2 to live in the house and look after Binod. It is alleged in the plaint that taking advantage of this situation, the daughter (D. 1) and the son-in-law (D. 2) of Binod prevailed upon him. Binod died sometime in 1957. After that troubles started and there was initially a 145, Code of Criminal Procedure proceeding (Misc. Case No. 367/62). That terminated in favour of Defendants 1 and 2. Then, as alleged Defendants 1 and 2 left the place with the valuable documents like Exts 1 and 2. There was a Panchayatnama to settle up the dispute but that proved, ineffective. So the Petitioner filed the suit for partition, as aforesaid, claiming different shares in respect of properties in different schedules and lots mentioned therein, except in Schedule ?E? in which Defendant 1 had exclusively 16 annas share by virtue of deed of gift (Ext. 4). 3. Defendants 1 and 2 are the main contestants. Defendants 3, 4 and 5 belong to the branch of Ananda brother of Binod who did not contest the suit. Defendant 6 and 7 are the window daughters-in-law of Binod, who after their widowhood, got remarried; and Defendants 8 to 17 are the alienees of the lands in dispute. Out of them Defendants 11 to 16 filed a separate written statement supporting the case of the contesting Defendants as bona fide purchasers. The case of the contesting Defendants 1 and 2 was that after Binod lost his three sons, he fell ill seriously and lost his power of understanding. During this period Basu, the elder brother of the Petitioner was looking after him and the properties and so Basu and the Petitioner fraudulently got several documents registered on misrepresentation of facts to Binod with a view to grabbing the assets of Binod. The acknowledgment deed of adoption (Ext. 2); the deed of gift in favour of Petitioner (Ext. 1); and the agreement (Ext. The acknowledgment deed of adoption (Ext. 2); the deed of gift in favour of Petitioner (Ext. 1); and the agreement (Ext. 3), were all challenged as selfserving documents created with the same object in view. They also got the deed d gift in favour of D. 1 (Ext. 4) in respect of a small parcel of A.O. 50 decimals to lend support to the registered documents Exhibits 1, 2 and 3. Again Basu and the Petitioner gave some movables to Defendants the 6 and 7 and obtained the sale deed dated 25-6-1951 (Ext. 9) in respect of ?B? schedule property in their favour. Then Binod gradually recovered from the shock and illness, he realised the tricks played upon him by the Petitioner and his elder brother Basu. So he cancelled the deed of acknowledgment of adoption by Ext. 1 and the deed of gift by Ext. K the same day on 24-3-1952. Further. Binod executed a deed of gift on 26.3.1952 in respect of his entire properties in favour of Defendants 1 and 2. The contesting Defendants admitted that they have transferred the properties in favour of the other Defendant, a lienel?s. They further asserted that their younger son Sankar is residing in the house of late Binod and has been assessed to Chaukidari tax. 4. The Petitioner has field a cross-appeal against the allotment of share to Defendant No. 1 from Schedule D property. 5. The Petitioner examined 14 witnesses, out of whom p.w. 13 is the Petitioner and p.w. 9 Raja Bewa his mother, who gave him in adoption. On the Defendants? side there are 13 witnesses of whom d.w. 12 is Defendant 2. Further, on the Petitioner?s side there are 26 exhibits and on the contesting Defendants? side Exts. A to N, out of which Exts. K, Land M are important. Similarly, out of the documents filed on the Petitioner?s side, Exts. 1, 2, 3 and 4 are respectively the gift deed, the acknowledgment of adoption deed, the agreement by the Petitioner not to alienate the properties, and the gift deed in favour of Defendant No. 1 by Binod, besides two money order acknowledgment receipts dated 15-7-1951 and 6-10-1951 (Exts. 6 and 7). Other important exhibits filed in favour of the Petitioner are Ext. 9, the sale deed executed by Defendants 6 and 7 in favour of Binod and the Petitioner and the rent receipts Ext. 6 and 7). Other important exhibits filed in favour of the Petitioner are Ext. 9, the sale deed executed by Defendants 6 and 7 in favour of Binod and the Petitioner and the rent receipts Ext. 10 series. 6. In view of the pleadings the learned lower Court framed 13 issues. Finally he held-that the Petitioner had been validly adopted some time in Aswin 1950 - when there was ?giving and taking? ceremony. The said adoption was not invalid merely because the Petitioner is the sister?s son of Binod - who has duly acknowledged the same. He further held that the Petitioner was not married at the time of his adoption. Regarding the gift dated 29-5-1951 (Ext. 1) he held that to be valid, not being a document tainted with undue influence or fraud or misrepresentation, and thus the Petitioner acquired a valid title over the properties conveyed therein. He further held that both the gift deeds one under Ext. 4 in favour of defend ant No. 1 dated 29-5-1951 and the other Ext. M dated 26-3-1952 in respect of the entire properties in favour of Defendants 1 and 2 to be invalid. Regarding certain sale deeds, such as Exts. A-1 and C-1, he held that the vendee-Defendants 15 and 16 are purchasers for consideration and therefore should not suffer. Holding the main issues in favour of the Petitioner he decreed the suit in part on contest as against the Defendants 1, 2, 11 to 16 and exparte against the rest assigning varying shares in respect of different lots to different parties, which need not be referred to. 6. Against this judgment and decree First Appeal No. 142 of 1967 was filed by Bauri Dei (D. 1) and her husband Chintamani (D. 2). As it appears, Chintamani died during the pendency of the appeal and so Appellants 2-a, 2-b, 2-c and 2-d have been added as his Legal Representatives. In the said appeal Petitioner Dasarathi has been impleaded as Respondent No. 1 and there are 16 others. 7. Mr. Sinha appears for the contesting Defendants 1 and 2 and Mr. Basu for Defendants 11 to 16. It was contended by Mr. In the said appeal Petitioner Dasarathi has been impleaded as Respondent No. 1 and there are 16 others. 7. Mr. Sinha appears for the contesting Defendants 1 and 2 and Mr. Basu for Defendants 11 to 16. It was contended by Mr. Sinha that (i) the Petitioner has signally failed to prove the fact of adoption and thus the finding of the learned lower Court to the contrary is erroneous; (ii) the deed of gift is a fraudulent document which has not been acted upon and so no title passed to the donee thereunder; and (iii) if adoption fails then the deed of gift is bound to fail for that was in favour of a persona designata. 8. Obviously, the main issue is whether the Petitioner has been validly adopted by late Binod. In that context the Petitioner witnesses are 1, 2, 3, 4, 6, 7, 9 and 13. Out of them p.w. 9 is the mother of the Petitioner and p.w. 13 is the Petitioner himself. The documentary evidence in this respect is the acknowledgment deed of adoption Ext. 2 dated 14-3-1951. Of course, there are references to the adoption in some other deeds which will be dealt with while dealing with these exhibits but they are not directly on the point but descriptive. The general comment against the oral evidence was that no caste-men or relations have been examined to prove adoption; that only the attesting witnesses to the impugned documents have been examined; that the evidence of the mother is contrary to the general trend of evidence; that the Petitioner has not filed the voters? list or his service book which would have at least show n if there has been a change in his father?s name after adoption; that the circumstances are such that the Petitioner was married before the alleged adoption and that the assertion that he was given in marriage by Binod after two years of the adoption is false. As far as the document Ext. 2 is concerned, it was assailed as a document creating evidence of adoption but not a deed of adoption and further it was brought into existence is suspicious circumstances, without mention of the alleged day of adoption which is very material. It is to be seen if these contentions have any force. 9. As far as the document Ext. 2 is concerned, it was assailed as a document creating evidence of adoption but not a deed of adoption and further it was brought into existence is suspicious circumstances, without mention of the alleged day of adoption which is very material. It is to be seen if these contentions have any force. 9. P.w. 1 Birakishore Ray is not a relation or a casteman of the Petitioner, but a close neighbour. He is an attesting witness to Ext. 1, the deed of gift. He states that the Petitioner?s adoption took place 16 years back in the month of Aswin. He was present at the time of adoption being invited by Binod Sahu and after the ceremony was over there was Pala. It is the natural mother p.w. 9 who gave the Petitioner in adoption to Binod who accepted him as the adopted son. This witness also states that the Petitioner performed the Sudhi of Binod. According to him, the Petitioner was aged about 22 or 23 years at the time of adoption and he was serving as a peon in Ravenshaw College, Cut tack. He further states that within one year of the death of Sidha (the third son of Binod) the adoption took place and 20 male persons had attended the ceremony. It is alleged against him that he and p.w. 2 are behind this alleged adoption and this litigation. It is admitted by him that he has some litigation with one Bayani Dhobani and his lawyer is the lawyer of the Petitioner. What is significant in his evidence is that he does not speak about the exact date or Tithi of adaptation which is conspicuously absent from the deed of acknowledgment of adoption (Ext. 2). P.w. 2 is similarly neither a relation nor a casteman though a co-villager. He is the attesting witness to the Ext. 1, the gift deed and Ext. 3. the agreement made by the Petitioner in favour of Binod not to alienate the properties. He also vaguely states that the adoption took place in Aswin about 15 to 16 years back. There was Puja and after the Puja end other ceremonies the mother of the Petitioner gave the boy in adoption to Binod who accepted him as his adopted son. He admits that the three sons of Binod died within 22 days out of Cholera. There was Puja and after the Puja end other ceremonies the mother of the Petitioner gave the boy in adoption to Binod who accepted him as his adopted son. He admits that the three sons of Binod died within 22 days out of Cholera. So Binod approached Defendant No. 1 to give her son in adoption but Defendant no 1 declined. Then Binod approached his sister who after some hesitation gave the Petitioner in adoption on a promise to execute a document in his name. This aspect of the evidence appears to be hearsay for he did not accompany when Binod either approached his daughter or his sister. He proves the deed of acknowledgment of adoption (Ext. 2) and Exts. 3 and 4. According to him also, the Petitioner resided in the house of Binod who performed his marriage and it is the Petitioner who performed Binod?s Sudhi. He admits that late Binod knew only to sign but unable to read and write. He further admits that although the three sons of Binod died in the month of Asadha the adoption took place only after two months after in the following Aswin. Like p.w. 1 he is unable to Give the day or Tithi of adoption. According to him, Binod approached Defendant 2 for adoption of Sankar (now Appellant No. 2-b) about two months before adoption of the Petitioner which is contrary to other evidence on record and the evidence of p.w. 7. He admits that the neighbours of Binod were present but not the caste-men and none of the castemen was present when Ext. 2 was executed. It was suggested to him that as a Mamalakar he got Ext. 1 executed and registered along with p.w. 1 and Kasi Sahu the elder brother of the Petitioner. According to him also, the Petitioner had entered service 2 to 3 years prior to adoption. To a direct question he said "I cannot say why the date of adoption was not mentioned in Ext. 2. I did not suggest to mention it". He further states that Binod asked Defendants 6 and 7 to agree to Ext 2 and he would make some arrangement in their favour. But he is unable to say what arrangement was actually made in their favour. 2. I did not suggest to mention it". He further states that Binod asked Defendants 6 and 7 to agree to Ext 2 and he would make some arrangement in their favour. But he is unable to say what arrangement was actually made in their favour. Against him it was suggested that he was working as a cook in a Jatra party started by p.w. 1 though it is denied. P.w. 3, Harekrushna Misra like p.ws. 1 and 2 is neither the casteman nor a relation though a co-villager. Like them he also only says the month of adoption to be Aswin but not the day and he went to assist I Binod?s priest Gandharba Das in the palace. According to him, the Petitioner remained in the house of Binod after adoption but he was unable to say who performed the Petitioner?s marriage. He admitted that he had no intimacy with Binod or with the Petitioner and the priest Gandharba Das was not related to him. According to him, Binod called him for the Pala but he did not disclose him the purpose that it was for adoption. In evidence he stated thus: I had heard that Binod was adopting the Petitioner whom he had kept in his house. Then says at the time of giving and taking I came to know of the adoption. x x x I have not seen preparation of any horoscope in the adoption nor any change of name as stated to by P.W. 9, the mother. According to this witness, the Petitioner was. 15 to 16 years of age at the time of adoption though under Ext. 2 it is stated to be 23 years. Further his evidence that the Petitioner was 15 or 16 is hardly credible, for the trend of evidence is that two years ?prior to the alleged adoption he was working as a bearer in the Ravenshaw College, Cuttack. He frankly admits that he is unable to give the date of adoption. He admits that previously he was running a hotel at Puri which he closed in or about 1953 and was staying at Puri for 5 to 7 years prior to 1953. He makes a statement which is contrary to the statement of p.w. 1 regarding the order of death of Binod?s sons. He admits that previously he was running a hotel at Puri which he closed in or about 1953 and was staying at Puri for 5 to 7 years prior to 1953. He makes a statement which is contrary to the statement of p.w. 1 regarding the order of death of Binod?s sons. He admits that the two other brothers of the Petitioner were corning to the house of Binod to look after his affairs. He admits further that only three days before his deposing in Court he was called by the Petitioner to depose to the fact of adoption although there are five castemen of Binod in the village, all of whom attended the function excepting two but he is unable to name any of the P.w. 4 is another Brahmin neither a relation nor casteman of Binod but a neighbour. He deposes to the giving and taking ceremony and that Binod performed the marriage of the Petitioner in his new house. Admittedly he is related to p.w. 2, for his father had married the sister of p.w. 2. According to him, he was invited although he had no intimacy with Binod or the Petitioner to the Puja where 40 to 50 persons were invited including 7 to 8 agnates and caste men of the parties. He says that after taking Prasad he left and he knew of the adoption when giving and taking took place and not before that. There was no astrologer or no chance of name of the Petitioner. His specific case is after two years of the adoption there was marriage of the Petitioner and after the death of the three sons of Binod, Basu and Kasi (brothers of Petitioner) were looking after the affairs of Binod. According to him, the agnates and neighbours of Binod attended, the adoption but not the castemen. P.w. 5, Rama Bhoi, is a witness who states to have been engaged in blowing conch shell during the ceremony. He also states that Binod got the Petitioner married and he acted as Sankhua and the adoption ceremony was attended to by 50 persons. He admits that p.w. 1 has sold away his lands and he is a Mamaltkar and himself is a Mulia who works for every body including p.w. 4 though not a retained labourer of p.w. 4. P.w. 6 is an agnatic grand-son of Binod aged about 30 years. He admits that p.w. 1 has sold away his lands and he is a Mamaltkar and himself is a Mulia who works for every body including p.w. 4 though not a retained labourer of p.w. 4. P.w. 6 is an agnatic grand-son of Binod aged about 30 years. He says that he was a minor when he attended the ceremony of adoption with his grand-father, Nidhi Sahu. His evidence is significant in that though his grand-father Nidhi Sahu is alive, whom he merely accompanied, yet Nidhi has not been examined. This witness admits to be working in the India n Oil Corporation and It was suggested to him, though denied, that both the Petitioner and himself are putting up together at Cuttack. According to this witness about 30 females had assembled apart from the males. He admits, and which is very significant, that the Petitioner is working in the Ravenshaw College, Cuttack for the last 20 years and during holidays he goes to his village where his wife resides. According to him, one Durga Charan Das (not p.w. 8) of Adhang village is cultivating the Plaintiff?s lands on bhag. But the said Durga Charan Das has not been examined. Contrary to the evidence of other witnesses he states that 40 persons of their caste had attended the adoption ceremony though none examined. P.w. 7 is one Achuti Sahu whose nephew is the Petitioner. Like other witnesses he states vaguely that the adoption was in the month of Aswin. What is significant is that he states that two days before the adoption Binod asked his sister to give the Petitioner in adoption which is contrary to the evidence of p.w. 2. He admits that Petitioner is his nephew but he is unable to give the name of the common ancestors of Chintamani Sahu, the natural father of the Petitioner and his father. The following statement of his is significant: Kasi and Basu are elder brothers of Petitioner. I cannot give their age. They were minors when Binod went to Petitioner?s mother to ask for adoption of Petitioner. Dasa is about two years younger than Basu. At that time Kasi was aged about 12 to 14 years. The following statement of his is significant: Kasi and Basu are elder brothers of Petitioner. I cannot give their age. They were minors when Binod went to Petitioner?s mother to ask for adoption of Petitioner. Dasa is about two years younger than Basu. At that time Kasi was aged about 12 to 14 years. This is evidently a lie, for the Petitioner?s other two brothers were elder to him and by the date of adoption the Petitioner himself was 23 years and so the answer that his elder brothers are minors cannot be true. He admits that he is working as a Mate in the Ravenshaw College for the last 5 to 6 years though he denies his intimacy with the Petitioner for which it was suggested that he was deposing falsely on his behalf. P.w. 8, Durga Charan Jena (not Das) only states that the Petitioner is the adopted son of Binod who performed his marriage and that Binod was possessing his lands in Khas and after his death the Petitioner possessed the lands through Bhag tenant. He admits to have learnt about the adoption 5 to 6 years before the death of Binod. He had been invited to Puja for adoption. He admits that he had never attended the feast of the Petitioner on ceremonial occasion nor he had any occasion to invite the Petitioner as he does not remain in the village. He further admits that he did not enquire how the Sudhi of Binod was performed and who performed it. He also admits that he is landless and has only his homestead and that he is not cultivating any land of any other person except of the Petitioner. P.w. 9, Raja Bewa, is the natural mother of the Petitioner who speaks directly to the giving and taking. Admittedly she has three sons. The eldest is Basu and then Kasi and then Dasarathi, the Petitioner. She admits that her husband died 20 years ago which would be towards 1947 and that Basu was Karta of the family when the Petitioner was given in adoption. She admits that after this adoption she has never come to the house of Binod. This witness admits that p.w. 2 works as a mediator in selling lands and fixing up marriages and in adoption which fits in with the criticism that he is a Mamalatkar. She admits that after this adoption she has never come to the house of Binod. This witness admits that p.w. 2 works as a mediator in selling lands and fixing up marriages and in adoption which fits in with the criticism that he is a Mamalatkar. She says that the adoption was 10 to 12 days before Dashara and she cannot say if sankhua, astrologer and priest came. She admits that after the death of the sons of Binod, her sons, Kasi and Basu were looking after his affairs on whom he had confidence. According to her, when Binod asked her to adopt the Petitioner, she suggested that he should execute a document in his favour and so Binod executed document and adopted the Petitioner. This shows as if adoption was after the execution of Ext. 2. Her further statement is that the Petitioner was 10 to 12 years by the time of adoption though it is stated in Ext. 2 to be 23. Contrary to any other evidence she says that the name of the Petitioner was changed. The astrologer prepared horoscope of the Petitioner as son of Binod. Admittedly her statement is contrary to the statement of other witnesses and practically demolishes the Petitioner?s case. Mr. Mohanty, learned Counsel for the Respondents endeavoured to explain it away saying that she is an old lady of 80 and so there is some confusion in her statement. The Petitioner (p.w. 13) says his adoption to be 15 to 16 years back in the month of Aswin which was done after Puja and other ceremonies were over and his mother gave him in adoption to Binod. He further asserts that he was sending money to his adoptive father (Binod) through money order and sometimes paying personally. On the alleged day of adoption he left Revenshaw College on a cycle for the ceremony at about noon and did not stay for many days. A reading of this oral evidence regarding adoption, as will be discussed hereafter leaves the impression that it 15 far from convincing. 8. Apart from the above oral evidence regarding adoption there is Ext. 2 which has been named as a deed of acknowledgment of adoption. A reading of this oral evidence regarding adoption, as will be discussed hereafter leaves the impression that it 15 far from convincing. 8. Apart from the above oral evidence regarding adoption there is Ext. 2 which has been named as a deed of acknowledgment of adoption. It is stated therein that as his (Binod?s) three sons died issueless he was adopting the last son of Chintamani (Should not be confused with D. 2 who is also Chintamani) in presence of the neighbours and the kinsmen before the astrologer and the purohit. What is significant in this document is that it is said that the giving was made by the parents of adoptive son though admittedly by that time the father of the Petitioner was long since dead. In it there is no mention of the day or the Tithi of adoption. It was scribed on 14-3-1951 and registered on 15-3-1951. The comment over this document was that it is not a deed of adoption but an acknowledgment of the same; but in the absence of the mention of day or date or Tithi of adoption, and the essential feature of adoption, namely, giving and taking ceremony being incorrectly stated it was an eye wash to create evidence of adoption that did not exist. As against this, the Respondents? contention was that the fact of adoption has been referred to in other registered deeds and so it cannot be false. In Ext. 1- the gift deed, there is admission that ?the donee had been adopted. The deed of cancellation of this adoption is Ext. L. The deed of cancellation of gift deed is Ext, K. Both were of the same date i.e. 24-3-1952. It was argued on behalf of the Petitioner-Respondent that in the cancellation deed Ext. L, it is not stated that Binod bad not adopted the Petitioner. But only what is stated is that a sister?s son cannot be adopted and that he had fled away to his father?s place. This, according to Petitioner-Respondent is in confirmation of the fact of adoption. 9. Taking the oral and documentary evidence as a whole, I am unable to agree with the learned lower Court that the fact of adoption, namely, giving and taking have been proved evidently, the onus lies on the Petitioner to prove the same and he has to discharge that heavy onus. 9. Taking the oral and documentary evidence as a whole, I am unable to agree with the learned lower Court that the fact of adoption, namely, giving and taking have been proved evidently, the onus lies on the Petitioner to prove the same and he has to discharge that heavy onus. Creation of documents is no substitute for the fact of giving and taking which must be proved independently dehors any document. Here there is no deed of adoption except an acknowledgment of the fact of adoption that took place some days earlier. But the omission of the day or date of adoption, I think, is very vital and the deed of acknowledgment of adoption therefore loses all its significance. Reverting to the oral evidence, as has been extracted above, it is not unimpeachable. Some stock witnesses who are either identifiers or attestors to the impugned documents, have deposed to the fact of adoption which carries no conviction. It is significant that the caste people are not there nor the relations of Binod, at least the branch of Ananda, his brother. The evidence of the mother is contrary to the evidence of the other witnesses. Even the age of the Petitioner as stated by her to be 10 or 12 is contrary to all the evidence. In Ext. 2, Petitioner?s age has been put at 23. Further evidence is that the Petitioner by that time had been working for two years as bearer in the Ravenshaw College, Cuttack If the evidence that the adoptive father gave the Petitioner in marriage two years after adoption is believed, then it would be towards the year 1953. By then the cancellation deed of gift and acknowledgment of adoption had come on 24-3-1952. Obviously, therefore, there was no love lost between Binod and the Petitioner by March, 1952. In this background, it is idle to expect that Binod would get the Petitioner married. The evidence also regarding Binod getting the Petitioner married is worth nothing and that is very consistent with the probabilities of the case. It may be mentioned here that if the adoption was true and genuine, necessarily the Petitioner?s father?s name would be changed in his service book and in the voters? list. It has been elicited in the cross-examination that the Petitioner?s name is in the voters? list at Cuttack. But no attempt was made to prove the same. It may be mentioned here that if the adoption was true and genuine, necessarily the Petitioner?s father?s name would be changed in his service book and in the voters? list. It has been elicited in the cross-examination that the Petitioner?s name is in the voters? list at Cuttack. But no attempt was made to prove the same. A petition was filed before me to take in evidence the duplicate service book, but it was seriously objected to by the opposite side. Be that as it may, the fact remains that the Petitioner was aged 23 and had already entered service by the time of his alleged adoption. In the circumstances it was not probable for him to remain with the grief-stricken Binod to look after him in village Adhang. If really Binod got the Petitioner married and there was perfect amity between the adoptive father and the Petitioner, normally the Petitioner would leave his wife with his adoptive father at Ad hang. But the evidence and circumstances are otherwise. Further, if Petitioner?s wife was with Binod as normally she should be, necessarily she would be managing the house and all the keys of valuables and documents would be with her. But according to the case in the plaint, he invited Defendants 1 and 2 who in recent past had not obliged Binod in sparing one of their three sons for adoption by Binod. He thought fit to leave Binod in their charge and resumed his duties at Ravenshaw College, Cuttack. In the plaint it is said that taking advantage of that Defendants 1 and 2 took Exts. 1 and 2 into their possession. In fact this acknowledgment deed of adoption and the gift deed in favour of tile Petitioner have been produced by Defendants 1 and 2 and not by the Petitioner. This is incompatible with the possible theory that the Plaintiff?s wife remained with Binod at any time. In fact there is no evidence either of Petitioner being given in marriage by Binod or his wife remaining with Binod. Rather the evidence indicates that the Petitioner was previously married and his wife never remained with Binod at Adhang but continued in the original house of the plain tiff. She was wmetimes coming and staying with the Petitioner at Cuttack and the Petitioner, during the holidays, was going and staying with her. Rather the evidence indicates that the Petitioner was previously married and his wife never remained with Binod at Adhang but continued in the original house of the plain tiff. She was wmetimes coming and staying with the Petitioner at Cuttack and the Petitioner, during the holidays, was going and staying with her. In the absence of any unimpeachable evidence regarding the fact of giving and taking, and in the absence of any plausible circumstances to probablise the same, on the contrary with circumstances negativing the same, disagreeing with the learned lower Court I would hold that the fact of adoption has not at all been proved as it ought to have been. In short, the oral evidence is interested, tainted, discrepant and unconvincing. 10. The documentary evidence which cannot take the plea of the fact of ?giving and taking? is suspicious and wanting in material particulars regarding the day or fact of adoption, and as such does not further the case of the Petitioner. The other documentary evidences are mere descriptive as to how the deed of acknowledgment of adoption came into existence and thus do not improve the case of the Petitioner as evidence of fact of adoption. The subsequent trend of events, how the daughter and the son-in-la w remained with Binod, looked after him, got the deed of adoption and gift deed cancelled and took possession of Exts. 1 and 2 improbablise the theory of adoption or the Petitioner remaining in possession of the lands through Binod and after his death through Bhag tenants. True, the Petitioner on two occasions only remitted Rs. 40/- on 5-7-1951 and Rs. 20/- on 6-10-1951 to Binod, but that is in the year 1951 long before Exts. K and 1 dated 24-3-1952 came into existence i.e. when Binod was yet to recover from shock and illness and under the clutches of the Petitioner and his brothers. Curiously there is no money order thereafter i.e. after 24.3.1952 and the plea that he was all along thereafter passing on the money personally is hardly credible. The rent receipts 10 series are of 1960 to 1962 wherein the payee has been mentioned to be Binod and others. That hardly improves the case of the Petitioner when admittedly some lands were joint with Ananda-brother of Binod. Further Ext. The rent receipts 10 series are of 1960 to 1962 wherein the payee has been mentioned to be Binod and others. That hardly improves the case of the Petitioner when admittedly some lands were joint with Ananda-brother of Binod. Further Ext. 9, a certified copy of the sale deed in respect of B Schedule properties executed by Defendants 6 and 7 in favour of Binod and the Petitioner contains a reference merely to adoption but does riot prove the fact of giving and taking. As against this I may also in passing refer to the negative evidence on the defence side regarding the fact of adoption by Binod. In that context the evidence of d.w. 2 is material. He is the scribe of Exts. 1, 2 and 3. He states that Mukunda Misra, p.w. 2, and Basu Sahu called him to the house of Binod where the deeds were scribed under the instructions of Basu Sahu and Mukunda Misra. At that time Binod was behaving like a mad man for loss of his three sons in quick succession. According to him Ext. 1 was written as per instructions of Mukunda Misra and Basu Sahu. He further states that year towards Kartik or Margasir Binod came to him and accused him of having ruined him by creating an acknowledgment deed of adoption and a gift deed. To that he answered how he did It according to the instructions of Basu and Mukunda and further advised him to convene a Panchayat and cancel the deeds. In fact he scribed Ext. C, a decision of the Panchayat. He also refers to Ext. 9 and Exts. E, F, G and H, the sale deeds. The evidence of d.w. 2, the scribe, casts suspicion as to the genuineness of documents like Exts. 1, 2, 3 and 4 and how they are the product of the promptings of Basu and Mukunda and not of Binod who was in grief. D.w. 3 is the scribe of Exts. K, Land M which were done according to the instructions of Binod. The other evidence on the Defendants? side is not material for our purpose except that it is Sankar, the son of Defendant No. 2, who was and is staying in the house of Binod. Practically all the lands have been sold away to different alienees who are Defendants in the suit and are? purchasers for valuable consideration. The other evidence on the Defendants? side is not material for our purpose except that it is Sankar, the son of Defendant No. 2, who was and is staying in the house of Binod. Practically all the lands have been sold away to different alienees who are Defendants in the suit and are? purchasers for valuable consideration. In this context the evidence of p.w. 8 Durga Charan Jena may be referred to. According to him, Binod was possessing his lands in khas and after his death the Petitioner possessed his land through Bhag tenants. Significantly who are those Bhag tenants have not been suggested nor any of them examined. As admitted by him Binod was possessing his lands in khas till his death in 1957. According to the defence, Defendants 1 and 2 stayed there and they have alienated most of the properties. There is no evidence from the side of the Petitioner that he had ever gone to Adhang after 1951, had helped Binod in cultivation till 1957 or had given Bhag Patta in respect of the lands to any of the Bhag tenants after the death of Binod in 1957. In fact the evidence regarding actual possession of the lands of late Binod by the Petitioner at any time is nil. Rather the admitted position is that the lands have been sold away and they are in possession of the alienees. It is admitted in the plaint that in the 145, Code of Criminal Procedure proceeding the Petitioner lost and the possession was declared in favour of Defendants 1 and 2. That gives a death blow to the fact of possession by the Petitioner after Binod?s death in 1957 and that is quite consistent with the broad probabilities of the case also. To sum up, therefore, the Petitioner has signally failed in proving the fact of his adoption and therefore the deed of acknowledgment of tee fact of adoption is of no asisstance. The second point raised on behalf of the Appellants that the deed of gift has not been acted upon is also acceptable, for Binod was in possession of the lands conveyed thereunder all through till his death in 1957. The deed of gift has been cancelled and there has been a deed of gift in favour of Defendants 1 and 2. The deed of gift has been cancelled and there has been a deed of gift in favour of Defendants 1 and 2. What is more, the gift deed in favour of the Petitioner does not come from his possession. There are several alienees of the lands belonging to Binod. These alienees are in possession of the lands after purchase for consideration. Therefore the gift deed is a sham transaction which has not been acted upon. Thus, the first two contentions raised on behalf of the Appellant that the Petitioner has failed to prove adoption and that the gift deed has not been acted upon having been accepted, the third question that if adoption fails the gift which was in favour of a persona designata would fail, does not arise for consideration. In the result, therefore, on an assessment of evidence, oral, documentary and the accompanying circumstances differing from the learned lower Court I would hold that the fact of adoption has not been proved and the gift deed has not been acted upon to confer any title on the Petitioner-Respondent. As such, the judgment and decree of the learned lower Court are set aside. The appeal succeeds with costs throughout and the crossappeal fails.