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2008 DIGILAW 703 (ORI)

Sriram Jain v. Manjubai Jain

2008-08-18

A.S.NAIDU

body2008
JUDGMENT :- The original plaintiff Haribilas Jain had filed Title Suit No. 37/80 of 1983/1991 in the Court of the Addl. Civil Judge (JD), Kantabanji praying for dec3.ration that original defendant No.1 Binod Kumar Jain was not his adopted son and hat the alleged adoption deed in that respect was invalid void and not binding on limo He further prayed to declare that the defendants had no right title or interest in his properties besides praying for perma1ently restraining them from entering into or occupying the house belonging to him. It appears that all the parties are members of the same family and the adoptive father and the adopted son have expired in the meanwhile. During pendency of the suit the original plaintiff Haribilas, the adoptive father, having died his brother Sriram Jain who claimed to be his legal representative was substituted. The original defendant No.1 Binod Kumar Jain the adopted son also died during pendency of the suit and he was substituted by his widow and children being the legal representatives. 2. The pleadings of the parties having been discussed in extenso in the judgments of the trial Court as well as the lower appellate Court this Court refrains from going into details of the same. In brief, one Maman Chand was the common ancestor of the parties. He had three sons, namely. Sardar Singh. Haribilas Jain (original plaintiff) and Sriram Jain. Sardar Singh had three sons out of whom Mailal was one. Mailal had three sons and three daughters. Binod being the eldest. Haribilas had no progeny of his own. Binod (defendant No.1) claimed to have been adopted by Haribilas. The latter however denied such claim of adoption. According to plaintiff, taking advantage of his weak health. Mailal brought his son Binod (defendant No.1) and left him in his house to look after him. Binod was of unsound mind and not capable of being adopted as he was a major by that time. He denied the recitals of the alleged deed of adoption dated 6-2-1981. The cause of action to file the suit .arose when Binod and his wife defendant No.2 forcibly and by assaulting Haribilas entered into his house on 26-6-1983. In the written statement filed by the defendants they denied all the plaint allegations. He denied the recitals of the alleged deed of adoption dated 6-2-1981. The cause of action to file the suit .arose when Binod and his wife defendant No.2 forcibly and by assaulting Haribilas entered into his house on 26-6-1983. In the written statement filed by the defendants they denied all the plaint allegations. According to them Haribilas had adopted Binod when he was only eleven years' old and in acknowledgment of that he had executed a deed on 6-2-1981 and that defendant No. 1 had remained with his adoptive father Haribilas all through thereafter. He got married and stayed in the same house. With such averments they pleaded that the plaintiff was not entitied to the reliefs sought and that the suit was liable to be dismissed. 3. On the pleadings of the parties the trial Court framed as many as twelve issues for decision in the suit. The plaintiff got four witnesses examined and executed ten documents in support of his case. The defendants got four witnesses and also exhibited several documents. The trial Court after discussing the evidence in extenso decreed the suit and declared that defendant No. 1 Binod was not the adopted son of plaintiff Haribilas; and that the alleged deed acknowledging adoption - Ext. 2 was invalid and not binding on Haribilas. The said decree was based on the following findings ;- (a) The defendants had failed to prove Dutta Homa or any other ceremony as well as giving and taking which were mandatorily required to prove a valid adoption. (b) No cogent evidence was also adduced to prove that defendant No. 1 was within the permitted age on the date of his adoption. (c) No person of the locality nor anyone who had seen the function or was present at the time of adoption ceremony was examined as a witness on behalf of the defendants. (d) The natural mother of Binod though alive was not examined from the side of the defendants to prove that she had given her son in adoption. (e) The mandatory requirements of Section 9 of the Hindu Adoptions and Maintenance Act were not complied with. (f) Ext. 2 was not a registered document, and as such presumption of its correctness did not arise as per Section 16 of the Hindu Adoptions and Maintenance Act. (g) Ext. (e) The mandatory requirements of Section 9 of the Hindu Adoptions and Maintenance Act were not complied with. (f) Ext. 2 was not a registered document, and as such presumption of its correctness did not arise as per Section 16 of the Hindu Adoptions and Maintenance Act. (g) Ext. 1 the School Admission Register and other documents established that Binod was fifteen years of age on the alleged date of his adoption; and (h) No specific pleading was there as to customs and usage in the community of the parties with regard to adopting a ward having crossed the age limit as prescribed under the Act. 4. Being aggrieved by the aforesaid judgment and decree of the trial Court, the defendants preferred appeal which was registered as T. A. No.8 of 1995 in the Court of the Addl. District Judge, Titilagarh. The said appellate Court after discussing the materials arrived at the following conclusions. As per Order 6, Rule 2 of the Code of Civil Procedure, the burden of proof lay on the plaintiff to prove that defendant No.1 - Binod was not his adopted son and such burden did not shift. No convincing or trustworthy evidence had been adduced by the plaintiff to disprove adoption of defendant No.1. Perusal of the deed Ext. 2 revealed that the same was nothing but a deed of acknowledgment of adoption executed by the plaintiff. The parties being Jains, age was no bar for them to adopt a son, but then law required that they ought to have performed the ceremony of giving and taking of the son. On the basis of the aforesaid conclusions the appellate Court by the impugned judgment allowed the appeal reversing the decision of the trial Court and dismissing the suit. 5. The following substantial questions of law are involved in this appeal: (1) Whether the finding of the lower appellate Court that the onus/burden of proof lies on the plaintiff who challenges the adoption, but not the person who claims adoption, is at all substantial in law? (2) Whether the impugned judgment and the finding therein that custom prevails in the family of the parties to adopt a boy of more than 15 years of age is sustainable in law in absence of any pleading and proof thereof regarding custom for adopting a major boy in the family of the parties? and (3) Whether Ext. (2) Whether the impugned judgment and the finding therein that custom prevails in the family of the parties to adopt a boy of more than 15 years of age is sustainable in law in absence of any pleading and proof thereof regarding custom for adopting a major boy in the family of the parties? and (3) Whether Ext. 2 is a deed of adoption or an acknowledgment of adoption and whether on the basis of this Ext. 2 which is an unregisteied document under Section 16 presumption of valid adoption can be drawn ? 6. Before delving into the merit of the appeal, this Court feels it would be prudent to recapitulate the jurisdiction of the second appellate Court. In the decision reported in AIR 1998 Orissa 131: 86 (1998) CLT 35 (Gopabandhu Das and others v. Maheshwar Mundian and others), this Court has unambiguously held that while deciding a Second Appeal, it is not open to Court to re-appreciate or re-assess the evidence however gross an error may seem to have been committed. Jurisdiction of Court in second appeal is confined to substantial question of law only and, as such, the finding of fact is not open to challenge even if the appreciation of evidence is palpably wrong. This Court further held that only in the cases of following nature findings of fact may be interfered with in second appeal : (1) Where there is no evidence at all on which finding of fact can be based; (2) Where finding of fact had been recorded by ignoring important and relevant evidence having considerable bearing on the issue or by taking into consideration extraneous facts; (3) Where point for determination is one of mixed questions of fact and law; (4) Where construction of document of title or document which is the foundation of the rights of the parties is involved. (5) Where there is question of admissibility of evidence; and (6) Where ultimate finding of fact by the first appellate Court is as a result of wrong placing of onus. 7. Law is well settled that where two views are possible from the available evidence it is not open to the second appellate Court to set aside a finding because the other view would be more appealing. 7. Law is well settled that where two views are possible from the available evidence it is not open to the second appellate Court to set aside a finding because the other view would be more appealing. In the touchstone of the aforesaid settled position of law this Court proceeds to examine the substantial questions of law involved in this appeal. 8. It is needless to say that so far as genealogy and relationship of parties are concerned, the same are mostly admitted, except the fact that according Binod (defendant No.1) he was adopted by Haribilas (original plaintiff); whereas according to Haribilas he had never adopted Binod. The suit property admittedly, belonged to the joint family consisting of three sons of Maman Ch. Jain namely Sardar Singh, Haribilas (plaintiff) and Sriram. Neither in the plaint nor in the written statement is there any averment to the effect that the parties are Jains and/or the Hindu law is not applicable to them. Section 10 of the Hindu Adoptions and Maintenance Act deals with the person who may be adopted. Sub-section (iv) of the said Section stipulates that the adopted son or daughter must not have completed the age of fifteen years, unless of course there is a custom and for usage applicable to the parties which permits the persons who have completed the age of fifteen' years being taken in adoption. For a correct interpretation the aforesaid sub-section has to be read along with Section 4 of the Act which stipulates that save as otherwise expressly provided under this Act, any text, rule or interpretation of Hindu Law or any custom or usage in force immediately before commencement of this Act shall cease to apply to Hindu insofar as it is inconsistent with any of the provisions contained in the Act. 9. Custom or usage envisaged under clause (iv) of Section 10 of the Act means and connotes some special rule which in a particular family or class or community or district or area of the parties is prevalent, although different from general rule of Hindu Law, otherwise applicable to the parties. Thus only if there is evidence as to instances where a ward of more 'than fifteen years of age has been adopted either in the family of the plaintiff and defendants or in the locality, the plea of adoption of original defendant No.1 can be sustained. Thus only if there is evidence as to instances where a ward of more 'than fifteen years of age has been adopted either in the family of the plaintiff and defendants or in the locality, the plea of adoption of original defendant No.1 can be sustained. In absence of evidence with regard to such custom, the adoption in the instant case must fail. Perusal of the impugned judgment and the evidence reveals that the original plaintiff had admitted adoption and in view of such admission made in Ext. 2 other facts become immaterial. The lower appellate Court placed much reliance on the deed of acknowledgment of adoption Ext. 2. Section 16 of the Act stipulates that whenever any document registered under any law for the time being in force, is produced before a Court purporting to record an adoption made and which is signed by the person giving and the person taking the child in adoption, the Court shah presume that adoption had been made in compliance with the provisions of the Act unless and until it is disproved. 10. Admittedly Ext. 2 is an unregistered deed. According to Mr. Sarangi, learned counsel for the appellant, the lower appellate Court acted illegally in shifting the onus on the defendants to prove the fact of adoption. According to him, the case of the plaintiff being that he had never adopted defendant No.1, it was, incumbent upon the plaintiff to prove such fact. This submission is repudiated by Mr. S. P. Misra, learned counsel for the respondents. According to Mr. Misra, the burden of proof of adoption lies on the person who claims to have been adopted. 11. Law is well settled that a very grave and serious onus rests on the person who seeks to displace the natural succession by reason of adoption and that the burden of proving the adoption is on the party setting up such adoption (See AIR 1969 Madras 329). A person who sets up an adoption must prove by clear evidence the factum of adoption, particularly when the same is disputed. In the case at hand. except denying the factum of adoption in the written statement, the defendants have not adduced any cogent evidence to prove the factum of adoption. The expression "burden of proof' contains two different aspects. A person who sets up an adoption must prove by clear evidence the factum of adoption, particularly when the same is disputed. In the case at hand. except denying the factum of adoption in the written statement, the defendants have not adduced any cogent evidence to prove the factum of adoption. The expression "burden of proof' contains two different aspects. Sometimes a party is required to prove an allegation by adducing cogent evidence and sometimes required to introduce evidence to answer an issue framed. Thus a party to suit who fails to discharge the burden of proof eventually fails. But then where parties have joined the issue and have led evidence and such conflicting evidence can be weighed to determine which way the issue can be decided, the question of burden of proof become academic (See AIR 1960 SC 100 - Narayan v. Gopal). 12. In the case at hand after examining the pleadings, the trial Court framed an issue to the following effect :- '''Whether defendant No.1 is the adopted son of the plaintiff and the date of adoption dated 6-2-1981 executed in evidence of said adoption is valid? Both the parties admittedly led evidence to determine the said issue. Thus the question of burden of proof and shifting the said burden becomes redundant. Defendant No.1 relies, upon Ext. 2 to establish his adoption. According to Mr. Sarangi, the said Exhibit being an unregistered document, neither the presumption flowing from Section 16 of the Hindu Adoptions and Maintenance Act was attracted nor could the same be exhibited in evidence. This submission of Mr. Sarangi is strongly repudiated by Mr. Misra. According to Mr. Misra. Ext. 2 may be an unregistered document, but then execution thereof is not denied by the plaintiff. Recital of the said document clearly indicates that the plaintiff had accepted defendant No. 1 as his adopted son. Thus the plaintiff is bound by such admission. 13. Apart from Ext. 2, there are other evidences to show that plaintiff had accepted defendant No. 1 as his adopted son. Perusal of Exts. A. B, F, G, J, H and several other correspondence between the plaintiff and different organizations coupled with oral evidence leads to a conclusion that defendant No.1 had been accepted by the plaintiff as his adopted son. 2, there are other evidences to show that plaintiff had accepted defendant No. 1 as his adopted son. Perusal of Exts. A. B, F, G, J, H and several other correspondence between the plaintiff and different organizations coupled with oral evidence leads to a conclusion that defendant No.1 had been accepted by the plaintiff as his adopted son. The cause of action for filing the suit as stated in the plaint arose when defendant No.1 and his wife ill treated the plaintiff. There is no averment to that effect that the deed of adoption Ext. 2 was obtained from the plaintiff by fraud, coercion- or misrepresentation. In absence of such materials, the lower appellate Court rightly came to the conclusion basing on Ext. 2 and other evidence, both oral and documentary, that the plaintiff was bound by his admission in Ext. 2 and that there were enough materials on record proving that in fact defendant No. 1 had been adopted by the plaintiff and was treated as son all along. This Court is satisfied that the decision of the lower appellate Court is based on materials available on record and the finding with regard to adoption being a finding of fact calls for no interference. Consequently this Court dismisses the Second Appeal and confirms the judgment of the lower appellate Court. Appeal dismissed.