Narayana Misra v. Surendranath Das — 1985 DIGILAW 31 (ORI)

JUDGMENT P.C. MISRA, J. 1. Defendant No.2 in as. No. 51 of 1964-1 of the Court of the Subordinate Judge, Puri, is the Appellant against the Judgment & decree passed in the said suit. The following genealogical table will be useful in appreciating the pleading of the parties: Bhagaban Das Dinabandhu Daitari Narayan (Adopted) Narayan Gopabandhu (given in adoption) Sadananda (D.3) (adopted) = Chanchala (P.9) Saragini Kirtimayee =Ratnakar Pati =Narayana Mishra (D.1) (D.2) Surendra, Birendra, Direndra, Rabindra, Debendra, Mahendra, Prabati, Gyanendra (P.1) (P.2) (P.3) (P.4) (P.5) (P6) (P.7) (P.8) According to the said geneaology, Bhagaban Das had two sons, namely. Dinabandhu & Daitari. Narayan & Gopabandhu were sons of Daitari. Dinabandhu had one issue who died issueless & thereafter he adopted Narayana, one of the sone of Daitari. Narayana had no issue except a daughter named Radhamani. It is alleged by the Plaintiffs that Sadananda (Defendant No.3), the son of Radhamani (daughter of Narayana), was adopted by Narayan as Narayana had no male issue. Plaintiffs 1 to 8 are the sons & daughters of Sadananda & his wife is Plaintiff No.9. Gopabandhu had two daughters, namely, Sarangini & Kirtimayee. Defendant No.1, since dead & expunged from the record, was the husband of Sarangini & Defendant No.2-Appellant is the husband of Kirtimayee. Defendant No.4 is a deity in respect of which so reliefs have been prayed for in this suit. 2. In this suit the Plaintiffs have prayed for a declaration that the suit properties are the ancestral joint family properties of the Plaintiffs & Defendant No.3 which are partible. It is stated that the said properties are not debottar properties or connected with any trust. The Plaintiffs have also prayed for partition of the suit properties by metes & bounds & for making different allotments in favour of the Plaintiffs & Defendant No.3. It is stated in the plaint that the minor Plaintiffs are entitled to be maintained by Defendant No.3 & maintenance to be decreed be made a charge on the properties to be allotted in favour of Defendant No.3. The Plaintiffs have also prayed for a direction to Defendant Nos. 1 to 3 to render accounts of the income of the suit properties which they have received as trustees/marfatdars of the deity (Defendant No.4) which, according to them, have not been spent for the deity. 3. The Plaintiffs have also prayed for a direction to Defendant Nos. 1 to 3 to render accounts of the income of the suit properties which they have received as trustees/marfatdars of the deity (Defendant No.4) which, according to them, have not been spent for the deity. 3. The Plaintiffs case in the plaint may be briefly stated as follows: The properties described in Schedules B-1 & B-2 of the plaint are the joint family properties of Narayana & Gopabandhu which they had been possessing during their life tin Narayan predeceased Gopabandhu whereafter the family consisting of Sadananda, Gopabandhu & Gopabandhu's two daughters, namely Sarangini & Kirtimayee continued to live jointly. Defendant No.4 is the family deity of the joint family. Gopabandhu before his death executed a will on 17.6.1928 bequeathing the entire joint family properties in favour of the family deity, Defendant No.4. It is alleged that though the will was probated in 1930, the endowment created by the bequeathed properties was a nominal one, inasmuch as the income of the land bequeathed thereunder was intended to be spent for the family & the relations of the testator. In 1932 Sadananda, Defendant No.3, began treating the properties as his family ancestral properties & possessing the same. The Plaintiffs 1 to 6 & 8 being the sons of Defendant No.3 have claimed to have acquired interest therein by virtue of their birth & Plaintiffs 7 & being the daughter & mother are entitled to be maintained from it. It is also claimed by the Plaintiffs that Gopabandhu being a member of the undivided Hindu family had no authority execute the will in question & the same could not affect right, title & interest of the Plaintiffs. 4. Defendant No.2 is the husband of Kirtimayee, the daughter of late Gopabandhu who attempted to intermeddle with the suit properties. Taking advantage of his close relationship with late Gopabandhu Das, the Defendant No.2 filed a suit, i.e. O.S. No. 29 of 1946, in the Court of the Subordinate Judge, Puri, for declaring that Defendant No.3 was a mere beneficiary & has no right to interfere in the management of the suit properties. The suit was later on compromised & under the compromise the properties were agreed to be divided amongst Defendants 1 to 3 which they agreed to hold the property as marfatdars of Defendant No.4, in equal portions. The suit was later on compromised & under the compromise the properties were agreed to be divided amongst Defendants 1 to 3 which they agreed to hold the property as marfatdars of Defendant No.4, in equal portions. The Plaintiffs allege that Defendant No.3 acted adverse to their interests by compromising that suit, as Defendant No.2 being a stranger to the family, was not entitled to any portion of the suit properties. It is stated that the said decree was, however, not executed & the possession of the entire property remained with Defendant No.3 as before. Then a proceeding under Section 145, Cr.P.C. was initiated at the instance of Defendant No.2 in respect of the suit properties & that proceeding terminated in favour of Defendant No.3, as a consequence of which his possession was confirmed. Defendant No.2 thereafter filed a suit being O.S. No. 369 of 1956 (1) in the Court of the Munsif, Puri, against Defendant No.3 for his removal from marfatdarship & in the alternative for settling a scheme of management of the property & sebapuja of the family idol (Defendant No.4). The suit was decreed in part against which two appeals were filed - one by Defendant No.3 & the other by Defendant No.2. Both the appeals were heard together & the first Appellate Court reversed the decree & dismissed the suit. Defendant No.2 thereafter preferred two appeals in the High Court, registered as S.A. Nos.219 & 262 of 1962 against the decrees of the Appellate Court. The appeals were, however, compromised in the High Court & under the compromise a small extent of property was allotted to Defendant No.4 & the balance was agreed to be divided between Defendants 2 & 3 in two equal shares. The said compromise decree has been put under execution in Execution Case No. 369 of 1961 in the Court of the Munsif, Puri The Plaintiffs contended that by entering into the aforesaid compromise, Defendant No.3 acted against the interest of the Plaintiffs. It is further alleged that the conduct of Defendant No.3 has been prejudicial to their interest & they have lost their confidence on Defendant No.3 for which he has no further right to continue as karta of the family. The Plaintiffs allege that the compromise entered into in the aforesaid second appeals was not valid & cannot affect their interest in the suit properties. The Plaintiffs allege that the compromise entered into in the aforesaid second appeals was not valid & cannot affect their interest in the suit properties. They also contend that there was no valid dedication of the properties in favour of Defendant No. & assuming that there was any dedication it was nominal for which the Plaintiffs' right & interest in the suit properties remained unaffected. On these averments, the Plaintiffs have filed the present suit for the reliefs mentioned above. 5. As already stated Defendant No. 1 died during the pendency of the suit & he has been expunged from the records. Defendant No.3 did not file any written statement & has been set ex parte. 6. Defendants 2 & 4 have filed a joint written statement contending that Defendant No.3 is not the adopted son of late Narayana Das & that he could not have been adopted in law as Narayan Das was his material grandfather. It is further stated, that as Narayana Das predeceased late Pandit Gopabandhu Das, the later became the sole surviving coparcener & he was entitled to deal with the suit properties as he liked. The will dated 17.6.1928 made by him is legal & has been duly probated since 1930. They contend that the Plaintiffs have no locus stand to challenge the legality of the Will & they have no right in the suit property. The allegations of the Plaintiffs that the endowment created under the Will is neither illusory nor invalid have been seriously disputed. It is contended that the Will is legally valid & has been acted upon. The allegation that Defendant No.3 treated the suit properties as joint family properties has been denied. The maintainability of the suit has been challenged on several grounds, & it is also stated that the suit is barred by the principles of res judicata. 7. Several issues were framed by the Learned Subordinate Judge & on consideration of the evidence adduced by the parties, the Learned Subordinate Judge has recorded the following findings: (i) Sadananda was the adopted son of late Narayana Das & Defendant No.2 is estopped from challenging the said adoption. (ii) The plea of the contesting Defendants questioning the adoption of Defendant No.3 is barred by res judicata. (ii) The plea of the contesting Defendants questioning the adoption of Defendant No.3 is barred by res judicata. (iii) The suit properties being the joint family properties of Gopabandhu & Defendant No.3, the former has no absolute right to dispose of the properties by a Will in favour of the family deity (Defendant No.4) & consequently the Will dated 17.6.1928 executed by late Gopabandhu Das was invalid & does not bind the Plaintiffs. (iv) The suit properties were treated to be the secular properties in the compromise filed in the High Court in S.A. Nos. 219 & 262 of 1962 & Defendant No.2 being a party to that compromise is estopped from disputing the same. (v) Defendant No.2 being not a member of the family he has no right to represent Defendant No.4 which is the family deity of the said family. (vi) There is no evidence that Defendant No.2 is in possession of any portion of the suit properties. There is nothing on the record to show that Defendant No.3 has misappropriated any portion of the income of the suit properties. So, he is not liable to render accounts for his past dealings with the suit properties. (vii) The compromise (Ext.8) under which Defendant No.3 conceded about half of the suit properties in favour of Defendant No.2 who is a stranger to his family is not binding on the Plaintiffs. (viii) Plaintiff Nos. 1 to 6 & 8 are each entitled to 1/8th share in the suit properties & Plaintiff Nos. 7 & 9 are entitled to be maintained by Defendant No.3, Plaintiff No.7 shall be maintained till her marriage & Plaintiff No.9 till her death. The said maintenance is made a charge on the separate share of Defendant No.3. (ix) Some of the properties have been acquired by the Government under the Land Acquisition Act. Plaintiff Nos. 1 to 6 & 8 as well as Defendant No. 3 are entitled to receive the compensation proportionate to their shares. (x) The properties in Schedule D of the Plaintiff which have been settled in the name of Defendant No.3 under Sections 6 & 7 of the Orissa Estates Abolition Act shall be treated as properties of the family of Defendant No.3 & being a stranger Defendant No.2 has no interest therein. 8. On these findings, the suit has been decreed in part preliminarily. 9. 8. On these findings, the suit has been decreed in part preliminarily. 9. The first question to be• considered in this appeal is as to whether Defendant No. 3-Sadananda is the adopted son of Narayana. Admittedly, the said Defendant No.3 is the natural born son of Radhamoni, the daughter of Narayan. The question for consideration is whether Narayan was competed to adopt his daughter's son. The text of Hindu Law prohibited adoption of a boy who natural mother, the adopting father could not have legally married. This rule of course has been restricted in many decided cases to daughter's son, sister's son & mother's sister's son. It has been held that an adoption thought prohibited under this rule may be valid, if sanctioned by custom. The Learned Counsel for the Appellant has vehemently argued that the settled legal position is that daughter's son in Hindu Law is prohibited & the principles of factum valet has no application for validating such adoption. The only exception according to him is that an adoption against the aforesaid rule can be held to be valid if it is backed by custom. The Learned Counsel has argued that the Plaintiffs have neither pleaded the custom nor they have proved any custom prevailing the society of the parties permitting adoption of a daughter's son. He has relied upon a number of authorities to substantiate that there can be no presumption of a custom & the party relying on a custom should plead & prove the existence of the same. In the decision reported in the case of Abdul Hussein Khan V. Mst. Bibi Sona Dero & anr., A.I.R. 1917 P.C. 181, there lordships have indicated as to how the existence of a custom must be proved. Their Lordships have emhasised that the existence of custom should be proved by clear evidence. The other decisions cited by the Learned Counsel for the Appellant need not be specifically noticed inasmuch as there is no dispute over the proposition that it is incumbent on the party setting up a custom to allege & prove the custom on which he relies. The ingredients for establishing a custom are well known. It must be ancient, certain, reasonable & must not be opposed to morality or public policy & must not be expressly forbidden by the legislature. The ingredients for establishing a custom are well known. It must be ancient, certain, reasonable & must not be opposed to morality or public policy & must not be expressly forbidden by the legislature. A custom derives its force from the fact that it has, from long usage, obtained the force of law. On the basis of these principles, the Learned Counsel for the Appellant has urged the primary burden of proof of the existence of the custom being on the Plaintiffs & they having failed to do so, they cannot succeed on the basis that the Defendants have not been able to establish that the custom did not exist. 10. The Learned Counsel for the Respondents met the point by saying that the prohibition of adoption of a daughter's son is mere recommendatory & not mandatory as has been decided in a decision in the case of Abhiraj Kuer v. Debendra Singh, A.I.R. 1962 S.C 351. 11. We shall deal with the question as to whether adoption of daughter's son is invalid in law being prohibited by the text of Hindu Law. The Learned Counsel for the Appellant has placed before us various texts of Hindu Law such as Mulla Hindu Law, Golap Sarkkar's Tagore Law Lecturer & Mayne on 'Hindu Law & Usage'. The authors are unanimous that there can be not valid adoption unless a legal marriage is possible between the adopting father & natural mother of the boy to be adopted. The exception to the rule being that an adoption though prohibited under this rule may be valid if sanctioned by custom. The question that arises for consideration in this case is as to whether the said rules is merely recommendatory or offers mandatory prohibition. In case it is found that the prohibition of such an adoption is absolute & mandatory, the further question as to whether the Plaintiffs have been able to establish a custom to the contrary which would be required to be examined. It is conceded at the Bar that the parties are governed by Banaras School of Hindu Law. The aforesaid rule of prohibition in the matter of adoption is based on the original texts of Kkubera in 'Dattak Chandrika' & that of 'Nanda Pandi in Dattak Mimansa'. 12. It is conceded at the Bar that the parties are governed by Banaras School of Hindu Law. The aforesaid rule of prohibition in the matter of adoption is based on the original texts of Kkubera in 'Dattak Chandrika' & that of 'Nanda Pandi in Dattak Mimansa'. 12. In the decision of the Supreme Court in the case reported in A.I.R. 1962 S.C. 351 (supra), the identical question came up for consideration by their Lordships. In that case the sole question was, can a wife's sister's daughter's son be validly adopted to a person governed by Hindu Law. Their Lordships have discussed the original texts of Kuver, Nanda Pandit & various decisions including some of the Privy Council & came to a conclusion that the adoption of a wife's sister's son is valid in law. Considering the question as to whether a marriage of a Hindu with his wife's sister's daughter shall be invalid, their Lordships have opined that the prohibition is a recommendatory rule. In more recent times commentators who have dealt with the subject of marriage did not intended it to be a mandatory prohibition. 13. Some arguments were advanced by the Learned Counsel for the Appellant that the doctrine of factum valet would not apply in the case of an invalid adoption. The doctrine of 'factum valet' in plain words means that the fact cannot be altered by a hundred texts. The 'texts' referred to above are texts that are directory as distinguished from those that are mandatory. In other words, where the texts are merely directory, the principle of factum of valet applies & the act is valid & bringing. In the present case following the reasonings discussed by their Lordships of the Supreme Court we are of the view that the rule of prohibition against adoption of a daughter's son is not a mandatory prohibition & consequently, if the adoption is found to have taken place, the same should be taken as valid & binding specially after long lapse of time. In this view of the matter, the question as to whether there was a custom of such adoption loses all its importance. 14. The alleged adoption took place some time in the year 1910 & its validity is being questioned after lapse of more than 50 years. In this view of the matter, the question as to whether there was a custom of such adoption loses all its importance. 14. The alleged adoption took place some time in the year 1910 & its validity is being questioned after lapse of more than 50 years. There is evidence to show that during all these years Defendant No.3 has been treated by the Appellant, his wife & other relation as the adopted son of Narayana Das. Various transactions including alienations of the ancestral properties to the strangers on the footing that adoption was valid had taken place the continuous conduct on the part of the Appellant treating Defendant No.3 as the adopted son of Narayana Das raises a strong presumption in favour of the adoption. 15. We would discuss some of the documents which have been exhibited in this case on behalf of the Plaintiffs-Respondents to prove the factum of adoption. Ext. 1 is the relevant entry in the admission Register of P.M. Academy dated 18.2.1927. It shows that Sadananda Das (Defendant No.3) was admitted to the said School on 18.2.1927 & his father's name has been described as Narayana Das. Ext. 4 is the statement of late Pandit Gopabandhu Das in case No. 460/27-28 dated 23.4.1928. In the said deposition Gopabandhu Das deposed that Narayana Das adopted 'his daughter's son Sadananda & Sadananda was living joint with him. We need not emphasise that a statement, from no less a person like Utkalamini Gopabandhu Das on whose selfless sacrifice for the country & people & whose truthfulness has no parallel in this State, cannot be disbelieved. His statement is admissible under Section 32(5) of the Indian Evidence Act as it relates to existence of relationship by adoption between persons about which he had special means of knowledge. It is a statement of Pandit Gopabandhu Das at a time when there was no dispute in the family as to the adoption. The Learned Counsel for the Appellant invites our attention to the 5th line of the said statement (Ext. 4) of Pandit Gopabandhu Das were he has aid as follows: "He (meaning Narayana Das) is alleged to have adopted another young man Banamali Das previously................. The Learned Counsel for the Appellant invites our attention to the 5th line of the said statement (Ext. 4) of Pandit Gopabandhu Das were he has aid as follows: "He (meaning Narayana Das) is alleged to have adopted another young man Banamali Das previously................. Banamali was banished by Narayana Das." On the basis of this statement, it is urged by the Learned Counsel for the Appellant that the adoption of Sadananda, if any was subsequent to the adoption of Banamali Das as deposed 'to by late Pandit Gopabandhu Das for which Sadananda's adoption being a subsequent adoption is invalid in law. We are not prepared to accept this contention of the Learned Counsel for the Appellant for the simple reason that Pandit Gopabandhu das did not make a categorical statement that Banamali Das was previously adopted by Narayana. All that he said was that Banamali Das is alleged to have been adopted by Narayana. Nothing was pleaded by the present Appellant in their written statement that the adoption of Sadananda is invalid on account of an earlier adoption. The adoption of Sadananda was challenged on the sole ground that he being the daughter's son of Narayana could not have been adopted in law by the maternal grandfather & physical giving & taking of the alleged adoption was also disputed. No evidence evidently could have not been allowed to be laid nor had been laid to prove that Narayana had adopted Banamali as a son prior to the adoption of Sadananda. Therefore, the aforesaid contention does not deserve any merit. 16. The next document we want to refer is Ext. 10 which is a letter dated 11.5.1928 written by Sadananda to Gopabandhu Das addressing the latter as uncle. In the said letter Sadananda has referred to Radhamani as his sister addressing her as 'Radha Nani' which is also another circumstance in favour of adoption. It may be noted that Radhamani is the natural mother of Sadananda & unless there was adoption of Sadananda as alleged, he could no address her as her sister. In the Will executed by Gopabandhu Das dated 17.6.1928, he has stated in paragraph 9 thereof as follows: "Radha, my brother's daughter if, she does not continue to remain in the family may go home. Three acres of land may be given to her either from the estate or by purchase. In the Will executed by Gopabandhu Das dated 17.6.1928, he has stated in paragraph 9 thereof as follows: "Radha, my brother's daughter if, she does not continue to remain in the family may go home. Three acres of land may be given to her either from the estate or by purchase. It is hoped the trustees will take all possible care to safeguard the interests of Sadananda & my brother's widow who after my death will become the sole surviving members of the family." Here also late Gopabandhu Das expressed that Sadananda will be one of the surviving members of the family which would not be possible had there been no adoption. The aforesaid documents, namely, Exts. 1, 2, 4 & 10 were old documents & give a picture of that period when there was no dispute relating to this adoption of Sadananda. Late Pandit Gopobandhu Das has become immortal for his selfless devoted social works & it cannot be assumed that he was not aware of the restrictions in the original text of Hindu Law against the adoption of a daughter's son. Thus, the adoption of Sadananda cannot be said to be invalid as in such cases the Court may presume the existence of a custom in favour of the adoption in the community to which the parties belong. 17. Reference may be made to Ext. 12 which is a written statement filed by Sadananda in O.S. No. 29 of 1946 in which Sadananda was the Defendant. In the said suit adoption was challenged by Ratnakar Pati & Narayana Misra (Defendant Nos. 1 & 2 in this suit) who were Plaintiff Nos. 2 & 3 respectively in the said suit of the year 1946. In Ext. 12, Sadananda, the Defendant in the said suit asserted that he is the duly adopted son of late Narayana Das & that the adoption ceremony was performed observing all legal formalities. It was also asserted that he was educated by his father late Narayana Das & by his uncle late Pandit Gopabandhu Das & that Ratnakar Pati (Plaintiff No.2 in the said suit) was acting as the guardian in the school during his academic career. It was also asserted that he was educated by his father late Narayana Das & by his uncle late Pandit Gopabandhu Das & that Ratnakar Pati (Plaintiff No.2 in the said suit) was acting as the guardian in the school during his academic career. It has also been asserted that Defendant No.1's adoption was valid by custom & also by principle by factum valet as in the district of Puri & other parts of Orissa adoption of a daughter's son & sister's son amongst the Bramhmins & other regenerate classes in customary. The said suit was compromised & the compromise decree has beer exhibited in this suit as Ext.A. The compromise petition has been made a part of the decree in which Sadananda was described as Sadananda Das & it was stipulated therein that Plaintiff No.4 in the said suit (Narayan Misra) would remain in charge of the half of the property of the deity Sri Radha Binod Behari Deb as marfatdar & the remaining half of the properties shall be in charge of Defendant. Sadananda Das, as marfatdar. It was further stipulated that Defendant Sadananda Das shall be in charge of the deity & he shall perform the daily sebapuja & the festivals of the deity. It appears that during the compromise the said suit the present Defendants Nos. 1 & 2 did not pursue their relief on the basis that Sadananda was not the adopted son of Narayana but remained satisfied with the arrangement made therein elating to the enjoyment of the properties but at the same time Sadananda was described as Sadananda Das which suggests that adoption of Sadananda was accepted by the Plaintiffs in that suit. In a postcard letter (Ext. 15) dated 18.8.1951 addressed to Sadananda, the wife of Narayana Misra has been referred to as sister of Sadananda. Similarly, in the letter (Ext. 14) dated 6.12.1952, Kritimayee, wife of Defendant No.2, has addressed Sadananda as his brother by referring herself as his sister. Ext. 13 is also a letter from Defendant No.2 to Sadananda addressing, Sadananda as Sadananda Das & the contents are consistent with the story of adoption. All these documents show that the Appellant & his wife has accepted Sadananda to have been duly adopted by Narayana & treated him as such all through. 18. Ext. 13 is also a letter from Defendant No.2 to Sadananda addressing, Sadananda as Sadananda Das & the contents are consistent with the story of adoption. All these documents show that the Appellant & his wife has accepted Sadananda to have been duly adopted by Narayana & treated him as such all through. 18. The present Defendant No.2 filed another suit (O.S. No. 369 of 1956) in the Court of the Munsif, Puri, against Sadananda praying for his removal from his capacity as marfatdar of the deity Radha Binod Behari Deb Thakur impleaded as Plaintiff No.2 in the said suit & for settling a scheme for proper management of the private endowment. In the cause title of the plaint which is Ext.5 in this suit Sadananda was described as Sadananda Misra alias Das in which he did not challenge the adoption of Sadananda but asserted that he is committing various acts against the interest of the deity for which he should be removed from the marfatdarship. In the written statement filed by Sadananda in the said suit (vide Ext. 6) it was specifically stated that Defendant has been wrongly described as Sadananda Misra alias Das & also as son of one Bulai Misra although in fact he is Sadananda Das son of Narayana Das. The said suit was dismissed by the Munsif against which the Plaintiff of the said suit filed T.A. No. 80/9 of 1959. Sadananda also filed another appeal T.A. No. 71/12 of 1959 again the very same Judgment & both the appeals were heard analogically. The Learned Appellate Judge while describing the admitted facts has stated that Defendant (meaning Sadananda) is the adopted son of Narayana Das. The appeal was also dismissed on merit with a finding that Narayan Misra is not a member of the family of the founder nor has been in possession of the properties of the deity & that Sadananda could not be removed from management. Narayana Misra, the present Defendant No.2, carried up the matter to the, High Court in S.A. No. 219 of 1962 & S.A. No. 262 of 1962 against the aforesaid confirming Judgments. The Second Appeals were compromised & the compromise petition forms a part of the decree passed in the Second Appeals. The compromise petition was supported by an affidavit of Sadananda who described himself as Sadananda Das son of late Narayana Das. The Second Appeals were compromised & the compromise petition forms a part of the decree passed in the Second Appeals. The compromise petition was supported by an affidavit of Sadananda who described himself as Sadananda Das son of late Narayana Das. The advocate for the Appellant in the said appeals has endorsed a certificate that the compromise is in the interest of the deity. Thus, in both the successive litigations Sadananda's adoption was taken for granted & the parties proceeded on the basis that the adoption was valid in law. 19. Our attention has been drawn to Ext. 9 which is a voters' list wherein Sadananda has been described as Sadananda Das son of Narayan Das. Taking into consideration all these documents & circumstances, we are of the view that the presumption from this long course of conduct goes to prove the validity of adoption & any body challenging adoption should discharge the burden by satisfactory evidence. Having gone through the oral & documentary evidence adduced by the parties we are satisfied that the adoption of Sadananda has been proved satisfactorily. 20. The Plaintiffs in this suit have challenged the validity of the Will executed in the year 1928 by late Gopabandhu Das. Admittedly, Gopabandhu Das was a coparcener & the joint family consisting of Gopabandhu & others owned the properties in respect of which the Will was executed. The suit properties being ancestral properties, a member of the undivided coparcenary could not validly bequeath his undivided interest in the joint family properties (vide A.I.R. 1964 S.C. 136 - a. Raghavamma & another V.A. Chenchamma & another). The suit properties were treated to be secular properties in the compromise filed in the High Court in S.A. Nos. 219 & 262 of 1962 & the Defendant No.2 being a party to the said compromise is estopped from disputing the same. 21. The Learned Counsel for the Appellant has argued at length that the Judgment in T.A. No. 80/9 of 1959 & T.A. No. 71/2 of 1959 marked as Ext. 7 in this suit could not be relied upon as it has no legal existence after the matter was carried up in appeal to the High Court. His contention is that Second Appeal Nos. 219 & 262 of 1962 were preferred against the Appellate Judgment in Ext. 7 which ended in a compromise vide Ext. 8. 7 in this suit could not be relied upon as it has no legal existence after the matter was carried up in appeal to the High Court. His contention is that Second Appeal Nos. 219 & 262 of 1962 were preferred against the Appellate Judgment in Ext. 7 which ended in a compromise vide Ext. 8. The Judgment in Ext.7, therefore, merged in the Appellate Judgment passed in the second appeals. He has relied upon a decision reported in the case of Collector of Customs, Calcutta V. East India Commercial Co. Ltd., Calcutta & Ors., A.I.R. 19 S.C. 1124, were their Lordships in clear & unambiguous term stated that when an appeal is made, the Appellate authority can do one of three things: (i) it may reverse an order under appeal, . (ii) it may modify that order; & (iii) it may merely dismiss the appeal & thus confirm the order without any modification. In all these three cases after the Appellate authority has disposed of the appeals, the operative order is the order of the Appellate authority whether it has reversed the original order or modified it or confirmed it. The aforesaid proposition of law is in consonance with the theory of merger of the Judgment of the subordinate Courts with that of the Appellate Judgment. The Learned trial Judge has partly relied upon the observations, made in Ext. 7 in support of the plea of adoption. Even leaving aside the said observations, the other evidence on record which we have already dealt with categorically, lead us to the conclusion that the adoption of Sadananda by late Narayana Das was valid. Thus, the question as to what extent Ext.7 can be utilized in evidence does not warrant any discussion in the aforesaid context. 22. The Plaintiffs had alleged in the plaint that the compromise arrived at in S.A. Nos. 219 & 262 of 1962 is invalid & not binding on the Plaintiffs. They alleged that the compromise in Ext. 8 was beyond the scope of the suit & therefore, Ext. 6 cannot have the force of a decree without being registered. It has already been stated that O.S. No. 369 of 1956 was for removal of the Defendant (Sadananda) from his capacity as a marfatdar of the deity or in the alternative to frame a scheme for proper management & sebapuja of the deity. 6 cannot have the force of a decree without being registered. It has already been stated that O.S. No. 369 of 1956 was for removal of the Defendant (Sadananda) from his capacity as a marfatdar of the deity or in the alternative to frame a scheme for proper management & sebapuja of the deity. The suit was evidently on the basis that the entire properties were debottar properties of the deity of Radha Binode Behari Deb. There is no evidence on record that the suit properties were debottar properties from the inception. There is no evidence as to when the said properties were dedicated to the deity to constitute an absolute debottar except the compromise decree vide Ext. A in which one of the terms was that all the properties shall be taken to be belonging to the deity Radha Binode Behari Deb. In the absence of any other evidence, it would be difficult to hold that dedication was completed by virtue of Ext. A alone. In order that there may be a real dedication to the deity, it is necessary to show that the grantor intended to dedicate & did dedicate every part of the property which was the subject-matter of the grant & dedication was not a mere colourable device to time up the property for the benefit of the donor's heirs & other relations. Such an intention is not apparent from Ext. A. Once it is held that the properties were not the absolute debottar properties, the arrangement as made in Ext. A would not clothe the present Defendant No.2 with any right or title with respect to the suit properties. 23. Having held that the suit properties were ancestral coparcenery properties the parties in S.A. Nos. 219 & 262 of 1962 could not divide the properties among themselves leaving aside A.7.50 decimals for the maintenance of the sebapuja of the-deify as has been done in Ext. 8. Admittedly, the present Defendant No.2 being not a member of the family was not entitled to a share is the said properties. Sadananda, Defendant No.3 who was the karta of the family of the Plaintiffs, had no authority in law to agree for a compromise under which almost half of the properties of the family would go to a person who is not entitled to a share in the partition. Compromise in Ext. Sadananda, Defendant No.3 who was the karta of the family of the Plaintiffs, had no authority in law to agree for a compromise under which almost half of the properties of the family would go to a person who is not entitled to a share in the partition. Compromise in Ext. 8 is beyond the scope of the suit (O.S. No. 369 of 1956) for which the compromise decree is not capable of being enforced as a decree. Besides, as already stated, the said decree would not bind the Plaintiffs inasmuch as Sadananda as karta of the family had no authority to enter into such a compromise which is against the interest of the other coparceners & for whose benefit he was supposed to deal with the properties. We would, therefore, hold that the compromise decree (Ext. 8) would not bind the Plaintiffs. 24. No other point has been canvassed in this appeal. 25. In the result, therefore, we do not find any merit in this appeal & accordingly, the same is dismissed. In the peculiar facts & circumstances of this case, the parties shall bear their respective costs of this Court. G.B. PATNAIK, J.: I agree.