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2007 DIGILAW 435 (JHR)

Bishwanath Mandal v. Ajay Kumar Kapri

2007-05-17

M.Y.EQBAL

body2007
JUDGMENT M.Y. Eqbal, J. 1. These appeal by the plaintiff appellant is directed against the judgment and decree dated 5.2.1988 passed by the 7 th Additional District Judge, Dumka in Title Appeal No. 77 of 1976 whereby he has reversed the judgment and decree dated 10.7.1976 passed by the 3rd Additional Subordinate Judge, Dumka in Title Suit No. 09 of 1974 and finally dismissed the suit. 2. The original plaintiff Ania Kapri filed Title Suit No. 09 of 1974 in the Court of Subordinate Judge, Dumka for declaration that the original plaintiff had never taken defendant No. 1 in adoption and that the registered deed of adoption dated 4.2.1974 is void and liable to be cancelled. A decree for perpetual injunction was also sought for restraining the defendants from interfering with the light of the plaintiff in respect of 1/4 th share in the suit property 3. The plaintiffs case, in brief, is that Ania Kapri, the deceased mother of the present plaintiff, was the widow of late Kalru Kapri. Kalru Kapri died 20-25 years ago leaving behind the widow and son. Karlu Kapri along with his three brothers had been jointly possessing Schedule A property recorded in the abstract khaliyan. The widow of late Kalru Kapri inherited her husbands 1/4 th share and came in possession of the same. It was pleaded that mother of the present plaintiff was a rustic and illiterate lady aged about 65 years and during her last days, she was not maintaining good health. The plaintiffs further case is that defendant Nos. 2 and 3 fraudulently brought widow Ania Kapri to Dumka on 4.2.1974 and falsely represented that they would advance loan to her provided she executed a registered Bhugatbandha deed in their favour by way of security against the loan. In pursuance of this proposal, the willow Ania Kapri in good faith executed and registered a document on 4.2.1974 at the instance of defendant Nos. 2 and 3. It is further alleged that when the defendants did not advance any loan to her, she got suspicious and on 16.2.1974 got the said registered deed inspected. To her utter surprise, she found that the deed executed and registered on 4.2.1974 was not Bhugatbandha deed, rather it purported to be a deed of adoption in which the recital was that defendant Nos. To her utter surprise, she found that the deed executed and registered on 4.2.1974 was not Bhugatbandha deed, rather it purported to be a deed of adoption in which the recital was that defendant Nos. 2 and 3 gave their son defendant No. 1 in adoption to the deceased plaintiff on 28.1.1974. Ania Kapri further denied the allegations that no ceremony of adoption or feast was held on 28.1.1974 and story of adoption was false inasmuch as, the natural parents of defendant No. 1 never gave the latter in adoption nor the deceased plaintiff took the defendant No. 1 in adoption. The plaintiffs further case is that the alleged registered deed of adoption dated 4.2.1974 being false and fabricated, a registered deed of cancellation was executed on 16.2.1974. 4. The defendant Nos. 2 and 3 filed written statement (sic) inter alia that Ania Kapri was married to Kalru Kapri and Kalru Kapri along with his three brothers had been jointly possessing property. It was stated that after the death of Kalru Kapri, the widow came in possession of 1/4 th share in the property. The defendants further denied the allegations made in the plaint regarding false representation or fraudulently brought Ania Kapri to Dumka and got deed of adoption executed fraudulently representing, it to be a Bhugatbandha deed as security against loan. The defendants case is that Kalru Kapri died issueless and she in order to attain spiritual benefit and to have the advantage of cremation on her death according to Hindu rites, requested defendant Nos. 2 and 3 to give their son defendant No. 1 in adoption. Defendant Nos. 2 and 3 alleged to have given the consent. Accordingly, in the evening of 28.1.1974, the widow Ania Kapri in her perfect health and sound mind, adopted defendant No. 1 as her son in presence of her caste men and other respectable villagers. It was further stated that on 4.2.1974 Ania Kapri came to Dumka on (sic) deed of adoption was executed by her. 5. The trial Court framed as many as 7 issued and after considering all the facts and evidence on record, came to a conclusive finding that defendant No. 1 was never taken in adoption by the deceased plaintiff and the registered deed of adoption dated 4.2.1974 was also cancelled. 5. The trial Court framed as many as 7 issued and after considering all the facts and evidence on record, came to a conclusive finding that defendant No. 1 was never taken in adoption by the deceased plaintiff and the registered deed of adoption dated 4.2.1974 was also cancelled. Consequently, defendants were permanently restrained from interfering with the rights of the plaintiff in respect of 1/4 th share from the suit properly. 6. Aggrieved by the said judgment and decree passed by the trial Court, the defendants preferred appeal being Title Appeal No. 77 of 1976. The Court of Appeal below alter hearing the parties, in terms of judgment and decree dated 5 th February, 1988 allowed the appeal and set aside the judgment and decree of the trial Court and decided all the issues in favour of the defendants. Hence, this Second Appeal by the plaintiff. 7. This Court after hearing the appellants under Order XLI Rule 11 CPC admitted the appeal for hearing on the following substantial questions of law: - 1) Whether in the cane of the adopted child living with the natural parents some days after adoption and the subsequent conduct of the natural parents in getting the child admitted in the school as son of the natural parent, and there being a finding to this effect, the Court would still hold that the adoption was valid and legal? 2) Whether the cancellation of adoption by Ania Kapri was an important piece of evidence, which was not legally considered by the learned lower appellate court and wrong onus seems to have been placed on the plaintiff to prove that the adoption and the adoption deed were not valid? 8. I have heard Mr. Krishna Mohan, learned Counsel appearing for the appellant and Mr. Atanu Banerjee, learned Counsel appearing for the respondents. 9. The admitted facts are that the original plaintiff No. 1, in her pleading, not only declined to have adopted defendant No. 1 but also denied to have executed any registered deed of adoption. When she came to know about the deed of adoption alleged to have been executed by her, she immediately executed a registered deed of cancellation of adoption, a few days after the alleged deed of adoption was executed and registered by her. When she came to know about the deed of adoption alleged to have been executed by her, she immediately executed a registered deed of cancellation of adoption, a few days after the alleged deed of adoption was executed and registered by her. It is also admitted fact that immediately after cancellation of deed of adoption, the plaintiff filed the instant suit, but during pendency of the suit, she died. 10. The trial Court elaborately dealt with all the facts and discussed the evidence adduced by the parties for and against the deed of adoption. The trial Court also found that even after alleged adoption, defendant No. 1 continued living with defendant Nos. 2 and 3, their natural parents, and even alter alleged adoption, defendant Nos. 2 and 3 have been shown as parents in the school register where defendant No. 1 got admitted. On the basis of all these admitted facts, the trial Court recorded a finding that defendant Nos. 2 and 3 fraudulently got the deed of adoption executed and registered by the original plaintiff who is an old lady. The trial Court, therefore, decreed the suit. 11. The appellate Court completely ignored and overlooked the sequence of events which took place alter the alleged deed of adoption came into existence. A very important piece of evidence on the basis of which the trial court recorded its finding, has not at all been considered by the appellate Court in its right perspective. The appellate Court has failed to appreciate that the plaintiffs have been able to satisfactorily prove their case that the original plaintiff never executed and registered the deed of adoption. The finding recorded by the appellate Court, therefore, suffers from serious illegality. In my considered opinion, the finding recorded by the appellate Court needs interference by this Court. 12. For the reasons aforesaid, this appeal is allowed and the impugned judgment and decree passed by the appellate Court is set aside and that of the trial Court is restored.