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2005 DIGILAW 131 (JHR)

Ramji Mahto @ Kodo Khirhar v. Murlidhar Yadav

2005-02-14

HARI SHANKAR PRASAD

body2005
JUDGMENT Hari Shankar Prasad, J. 1. This second appeal, at the instance of the appellant, is directed against the judgment and decree dated 26.9.1987 passed in Title Appeal No. 14 of 1985/1 of 1986, whereby and where-under the learned 7th Additional District Judge, Dumka set aside the judgment and decree dated 27.5.1984 passed in Title Suit No. 11/82. 2. The case of the plaintiff-appellant in brief is that the appellant filed a suit for declaration that the defendant No. 3 Promod Kumar Yadav was never adopted by the plaintiff No. 1 and he is not the adopted son of plaintiff No. 1. Plaintiff No. 1 had landed property at Mauja Gajipur and Mauja Balidhab, P.S. Sraiyahat in the district of Santhal Pargana and she has also inherited the property at Mauja Gajipur from her father together with her sister, who died leaving behind only son Methal Mahto and this plaintiff has also inherited the landed property at Mauja Balidhab from her husband (since deceased). The plaintiff had three daughters, namely Khudni Mahatwain, Chinta Mahatwain and Sugmani Mahatwain and all these daughters are married and have children. This plaintiff has no son and she adopted one of her grandson namely Kodo Khirhar, who is son of her second daughter Chinta Mahatwain. The said adoption took place on 27 Baisakh 1375 B.S. corresponding to 10.5.1968 in presence of the relatives and the respectable persons of the village after performing all the necessary ceremonies of giving and taking and later on she executed a registered deed of adoption at Dumka on 13.6.1968 and she gave a new name of Kodo Khirhar and at present his name is Ramji Mahto and since then Ramji Mahto is the son of this plaintiff and resides at Belidhab and look after the properties of both the villages Belidhab and Gajipur. This plaintiff had inherited the landed property of Gajipur appertaining to J.B. No. 7 measuring 1 acre 98 decimals. This land was jointly cultivated by this plaintiff and her sister Ampi Mahatwain, who died leaving behind Methal Mahato as her only son. Methal Mahto started creating disturbance at the time of distribution of the produce of the Gajipur property. Defendant No. 1, who is a school teacher, offered to make an amicable settlement between them and on 1.3.1982 the came to Dumka Registry office. Methal Mahto started creating disturbance at the time of distribution of the produce of the Gajipur property. Defendant No. 1, who is a school teacher, offered to make an amicable settlement between them and on 1.3.1982 the came to Dumka Registry office. The defendant No. 1 got this plaintiff put her LTI on a document the contents of which were not known to the plaintiff. Defendant No. 1 assured her that through the said document she never adopted defendant No. 3, who is son of defendant Nos. 1 and 2 and there was no ceremony of giving and taking of defendant No. 3 between plaintiff and defendant Nos. 4 and 2 on 8.1.1982 or on any other date. Later on the plaintiff came to know about the fraud that defendant No. 1 actually got a deed of adoption executed by her which recited that defendant No. 3 was adopted by this plaintiff on 8.1.1982 in presence of the relatives after performing Puja and other ceremonies. All the recitals in the said deed of adoption are false and the execution of this plaintiff was obtained by fraud and misrepresentation keeping her under impression that she was executing a deed of partition. This plaintiff never intended to adopt defendant No. 3 on 8.1.1982 or on any other date because she had already adopted plaintiff No. 2 Kodo Khirhar on 10.5.1968 and had executed a registered deed of adoption with respect to that adoption on 13.6.1968 and defendant No. 1 simply got her execute that deed with a view to grab her land at Gajipur. 3. The defendants appeared and contested the suit and according to their written statement they have asserted that defendant No. 3 was actually adopted by plaintiff No. 1 at her own request in presence of relatives and villagers on 8.1.1982 and actual ceremony of taking and giving took place on that day and all the ceremonies were performed and since then defendant No. 3 became the adopted son of plaintiff No. 1 and this plaintiff changed his name to Anjani Prasad Yadav in place of Promod Kumar Yadav and at the time of adoption the child was aged only two years. Anjani Prasad Yadav was living with his natural guardian but he is actually adopted son of plaintiff. Anjani Prasad Yadav was living with his natural guardian but he is actually adopted son of plaintiff. It was denied that there was any difference between plaintiff and Methal Mahto and defendant No. 1 offered to settle the matter. 4. On the pleadings of the parties several issues were framed and ultimately the learned Court below decreed the suit in favour of the plaintiff and being aggrieved by the judgment and decree the defendants preferred appeal and the appellate Court allowed the appeal and set aside the judgment and decree of the learned Court below and the plaintiff-appellant has filed this second appeal, in which following substantial question of law has been formulated : (i) Whether the Court below erred in law in setting aside the registered deed of adoption (Ext. 1) executed by plaintiff No. 1 on 13.6.1968 beyond the period of limitation. (ii) Whether the lower appellate Court committed an error of record in accepting the evidence of DW 1 which is against the recital in Ext. A, this deed of adoption dated 1.8.1982. 5. Plaintiff No. 1 who is appellant here, had earlier filed a title suit for declaration that she had never adopted defendant No. 3, respondent who is son of defendant Nos. 1 and 2 and she had actually adopted plaintiff No. 2 and had executed a deed of adoption. The learned Court below while deciding the issues framed in the lower Court had come to a finding that deed of adoption executed by the plaintiff with respect to plaintiff No. 2 was a valid and genuine deed and had decreed the suit. But on appeal filed by the defendants, the appellate Court allowed the appeal and set aside the judgment and decree of the learned Court below and against that, plaintiff has filed this second appeal. For valid adoption, some condition have been laid down and those contents are enumerated in Section 11 of the Hindu Adoption and Maintenance Act, 1956 which is quoted hereinbelow : "11. Other conditions for a valid adoption--In every adoption, the following conditions must be complied with :-- i. if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, sons son or son sons son (whether by legitimate blood relationship or by adoption) living at the time of adoption; ii. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or sons daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption. iii. if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; iv. if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; v. the same child may not be adopted simultaneously by two or more persons; vi. the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption." 6. The learned trial Court has elaborately dealt with contents and had come to a finding that adoption made on 13.6.1968 was proper and genuine and had given findings that the deed of adoption said to have been made on 8.1.1982 is a document created falsely. The learned Court below had also discussed the evidence of PW 1 who is the adoptive mother and had discussed the evidence in detail that on 8.1.1982 two documents were created and one document was relating to adoption of defendant No. 3 was in custody of defendant No. 1 and the learned trial Court doubted as to why this document was in possession of defendant No. 1, whereas it should have been in possession of the adoptive mother-plaintiff No. 1. Further, Ext. 1 is a registered document and presumption is that the contents scribed in the deed of adoption are genuine unless it is disapproved. So far as evidence of defendant No. 1 who is appearing as DW 1 is concerned, he has tried that no such valid adoption was made on 13.6.1968 and that the plaintiff No. 2 is living with his natural guardian and there is no severance from his natural guardians to the adoptive mother and father. So far as evidence of defendant No. 1 who is appearing as DW 1 is concerned, he has tried that no such valid adoption was made on 13.6.1968 and that the plaintiff No. 2 is living with his natural guardian and there is no severance from his natural guardians to the adoptive mother and father. The learned trial Court also came to a finding that PW 2, at the present moment, resides sometimes in the house with his natural parents and sometime with his adopted parents and the learned Court below further came to a finding that so far as adoption of the plaintiff No. 2 is valid, it matters little whether he is living here or there. On the other hand, the learned appellate Court also discussed the evidence of PW 1 and appreciated the evidence and came to a finding that she has not been able to say many things and in cross-examination she has stated contrary to what she has stated in the examination-in-chief and after elaborate discussion of evidence of PW 1, the learned appellate Court came to a finding that she does not know about the age of the PW 2, when he has been married and all other things and thereafter he came to a finding that the registered adoption deed dated 13.6.1968 is a forged document and that is not the valid piece of documents and adoption made on 8.1.1982 is a valid adoption. 7. 7. The real question that arises is that the plaintiff No. 1 brought suit for declaration that deed of adoption said to be executed on 8.1.1982 was not properly executed as she had come to registration office for effecting a deed of partition and actually deed of partition was effected on that very date and at the same time, one more document i.e. deed of adoption was also executed and that deed of partition was taken by plaintiff No. 1, but deed of adoption was not taken away by this plaintiff No. 1 but it was taken by the defendant No. 1 and that is why it was lying in the custody of the defendant No. 1 and after this fact came to the knowledge of the plaintiff No. 1 she immediately filed a suit for declaration that deed of adoption said to be executed on 8.1.1982 has been fraudulently brought into existence by playing fraud and since this is a registered documents, the presumption of registered document is in favour of the contents mentioned in the deed. Further, the defendant have challenged the deed of adoption dated 13.6.1968 in the year 1983 by filing written statement and this challenge of deed of adoption executed on 13.6.1968 is beyond the period of limitation as documents should have been challenged within three years from the date of execution of deed of adoption but it has been challenged after fifteen years and, therefore, this is beyond the period of limitation. Further, the learned appellate Court committed an error in setting aside the Ext. 1 which is a registered deed of adoption, whereas the learned appellate Court accepted Ext. A when DW 1 has deposed against the recitals in the deed of adoption executed on 8.1.1982 and, therefore, since this evidence is contrary to the recitals in the Ext. A which is a deed of adoption, hence his evidence should not have been accepted by the appellate Court, but unfortunately the appellate Court has accepted the evidence of DW 1 and found the Ext. A a valid one. The learned appellate Court further failed to appreciate the fact that PW 1 is an illiterate lady and she came to depose in the year 1975 after the death of her husband and she is rustic, illiterate lady and at that age she might have forgotten something which she should have said in her evidence. A a valid one. The learned appellate Court further failed to appreciate the fact that PW 1 is an illiterate lady and she came to depose in the year 1975 after the death of her husband and she is rustic, illiterate lady and at that age she might have forgotten something which she should have said in her evidence. But other witnesses have supported adoption and have also stated about giving and taking of the boy and have also stated that certain rituals were held and, therefore, if she lost her memory and was not able to stand up to the cross-examination of the defendants, it should not have been taken so seriously as she was an illiterate lady and when she was an illiterate lady and her thumb impression has been obtained on a deed and that deed was kept concealed from the knowledge of her and was taken away surreptitiously by the defendant No. 1 and this aspect, the learned Court below should have considered. Whereas the learned trial Court has held that possession of document being with defendant No. 1 is a serious matter and this goes to show that it was not properly executed within the knowledge of the plaintiff No. 1 who is illiterate lady and some fraud has been practiced upon her. Further, Ext. A has been taken out by the party concerned and has not been brought on record even after sufficient opportunity was given to produce the same and this non-production of Ext. A taken out by the party concerned will mean that some fraud was played in the execution of the deed and, therefore, this deed has been taken out from the record. It is clear that DW 1 who is also defendant No. 1 has given evidence contrary to the recitals made in the Ext. A, therefore, his entire evidence was discarded. It is clear that DW 1 who is also defendant No. 1 has given evidence contrary to the recitals made in the Ext. A, therefore, his entire evidence was discarded. Whereas PW 1 has failed to say something which she should have stated, but at the same time this deed is a registered one and she does not say that any fraud was practiced upon her while execution of the deed of adoption made on 13.6.1968, whereas she says that she had not gone to execute deed of adoption as claimed by the defendant No. 1 on 1.3.1982 and she says that no rituals of giving and taking at all were performed by the adoptive parents or some ceremony was held, so far adoption of son of defendant No. 1 is concerned. 8. In that view of the matter, the learned appellate Court has committed an error of law as well as error of record, therefore, this appeal is allowed and the judgment and decree of the learned appellate Court is hereby set aside and the suit is decreed in terms of the finding of the learned trial Court. However in the circumstances there will be no order as to costs.