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2008 DIGILAW 1307 (JHR)

Sundari Marandi v. Maharani Hembram

2008-11-20

M.Y.EQBAL

body2008
JUDGMENT : M.Y.Eqbal, J: The defendants are appellants and this appeal is against the judgment of reversal. The appeal has been admitted for hearing on the following substantial question of law: “Whether the finding of the appellate court below on the point of adoption is in accordance with law?” 2. The plaintiff filed Title Suit No.30/83 for declaration that adoption of first defendant never took place and the deed of adoption is ineffective document and the same is liable to be cancelled. Plaintiff’s case was that she and defendants are residents of the same village and are by caste Marandi. Lakhan Marandi had a son Bhatu Marandi, who has two daughters Mukhi Marandi and Sundari Marandi. Mukhi Marandi was married to Gopal Hembram in Gharjamai form. Their daughter Maharani Hembram was also married with Sital Tudu in Gharjamai form. Maharani Hembram is plaintiff in this case. Sundari Marandi, the second daughter, was not married in Gharjamai form. The plaintiff’s further case was that after the death of Bhatu Marandi, his two daughters jointly inherited the landed property and came in possession of the suit land. Plaintiff alleged to have came to know about the illegal adoption, by which defendants-second set have adopted defendant-first set on 8.3.1983. The plaintiff’s case is that no adoption had taken place, no religious ceremony was performed and there was no giving and taking ceremony. It was also alleged that a false document of adoption was created to claim the suit property. The defendants, inter alia, stated that Sundari Marandi was married in “‘Gharjamai” form though she had got no issue but only an adopted son. The defendants’ further case is that adoption took place in January, 1983 in presence of village Pradhan and other villagers in accordance with Santhal custom. The trial court dismissed the suit disbelieving the case of the plaintiff and accepting the case of the defendants regarding adoption. Aggrieved by the said judgment and decree the plaintiff-respondent preferred appeal before the District Judge, Dumka being Title Appeal No.25/86. The appellate court, after re-appreciation of evidence, has come to the conclusion that the adoption never took place as alleged by the defendants and that the defendants-appellants failed to prove their case that defendant-first set was given in adoption. 3. I have heard Mr. Rajiv Sharma, learned counsel for the appellants. No one appears on behalf of the respondent. 4. The appellate court, after re-appreciation of evidence, has come to the conclusion that the adoption never took place as alleged by the defendants and that the defendants-appellants failed to prove their case that defendant-first set was given in adoption. 3. I have heard Mr. Rajiv Sharma, learned counsel for the appellants. No one appears on behalf of the respondent. 4. The appellate court, on appreciation of evidence, recorded the following findings: (21) Custom differs from village to village, and family to family. The question is whether the custom of adoption is prevalent in the village of the respondent or in their family. To find out its answers, we have to look into the evidence given by them and their witnesses in the court below. Sundari Marandi and Dhaneshwar Tuidu (who are said to have adopted Rameshwar Tudu (non-examined) as their son have figured as DW 9 and 8 respectively. DW 9, Sundari Marandi has stated that she and her husband Dhaneshwar had taken in adoption. Her husband PW 8 has stated in the last para of his evidence that no adoption has taken place in his village, nor he had seen any other taking in adoption. DW 1 has stated in para 3 of his evidence that no adoption has taken place in his presence in the village. DW 3, the Pradhan of the village, has stated in the beginning line of the cross examination that no adoption has taken place in his village. DW 5 has stated that there is custom of taking in adoption in their caste. But DW 6 has stated that no adoption had taken place in the village prior to this adoption and DW 5 is his relation. DW 7 has also stated that no adoption took place prior to it in his village. (22) Thus , we find that as per evidence of the defence witnesses in the court below no adoption had taken place in the village and according to them this is the first adoption in the village. (23) About the rituals of adoption , we find that DW 3 is village Pradhan, who has said about it at his cross examination. According to him the formalities of “Nimdamari is performed is which oil is appeared to Naiki one day prior to it the “giving and taking ceremony” takes place. (23) About the rituals of adoption , we find that DW 3 is village Pradhan, who has said about it at his cross examination. According to him the formalities of “Nimdamari is performed is which oil is appeared to Naiki one day prior to it the “giving and taking ceremony” takes place. In para 3 he has sated that the paper of adoption is prepared after Chathiyari (six day of Poshputra) which is signed by the plefile of the Tolla and by the Naiki , with the function of “Nimdamari the Feast is organized and mundan ceremony is held . The Mundan ceremony was held on Friday of Rameshwar Kisku . On the same day the feast was given. In this light let us examine the evidence of other witnesses for the defendants. According to DW 1 para 2 the deed of adoption was written on 7.1.83 the adoption has taken place on 8.1.83 at Dumka and he has signed at the document on 8.1.83 but the Nimdamari was not held at Dumka and all the villagers had come to Dumka . In para 3 he has stated that Nimdamari was held in the village and the feast was given 10 to 12 days after the registration of adoption document. But according to DW 3 the deed of adoption was prepared and registered after three months of actual adoption (vide para 3 of DW 3). According to DW 4 the adoption took place on 7th January, Friday and Andal Hembrom was the Naiki, the registration of the adoption deed was made in Dumka on 8.3.83 on a Tuesday. According to DW 5 the adoption took place on 7th January, on a Friday. The feast was held on next day of Nimdamari and the document of adoption was kept by the villagers. According to him the worship for adoption is made at two places in the village i.e. Jahar Asthan and Manjhi Asthan. Sundari had not gone for worship rather he had gone there. He had claimed to be the village Naiki . But he has been contradicted by DW 4 who has stated that Andal Hembrom is the Naiki of the house. According to DW 6, Nimdamari took place in the month of the house. According to DW 6 Nimdamari took place in the mnth of Aghan , but according to DW 8 it was month of Push. But he has been contradicted by DW 4 who has stated that Andal Hembrom is the Naiki of the house. According to DW 6, Nimdamari took place in the month of the house. According to DW 6 Nimdamari took place in the mnth of Aghan , but according to DW 8 it was month of Push. According to DW 7 the adoption took place three months before the registration ie. On January,1983 but he cannot say its Hindi months. According to him Nimdamari was held on Friday at 10 AM then in the evening and then on the next day. He had attended all the Nimdamari functions. He does not know about the worship at Jahar Asthan but he knows about the worship at Manjhi Asthan in which Rameshwar and Sundari had participated he is again contradicted by DW 5 on this point as DW 5 has stated that the worship was held at both the places i.e. Jahar Asthan and Manjhi Asthan and Sundary had not gone either of the place, rather he had participated in those worships. According to him even Rameshwar Kisku had not participated.” 5. From perusal of evidence, it appears that the village Pradhan was examined as DW 3, who has stated that no adoption has taken place in his village, prior to the instant adoption. The other defendants’ witnesses have also deposed that no such adoption was ever took place in the village. The defendants have thus measurably failed to prove that the adoption was legally and validly taken place and the defendant-first set was taken in adoption by the defendant-second set. I do not find any perversity or illegality in the findings recorded by the appellate court. The said finding needs no interference by this Court. 6. For the reason aforesaid, I find no merit in this appeal, which is, accordingly dismissed.