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2012 DIGILAW 927 (PAT)

Kishori Prasad Singh v. Lalita Devi

2012-07-05

MUNGESHWAR SAHOO

body2012
JUDGMENT MUNGESHWAR SAHOO, J. 1. The plaintiff has filed this second appeal against the Judgment of affirmance. Initially the plaintiff filed title suit No.102 of 1971 for declaration of title and recovery of possession with respect to the immovable property and movable property described in Schedule II & III of the plaint. The plaintiff also prayed for decree for pendente lite and means profit from the date of the suit. 2. According to the plaintiff Bakhori Singh had two sons, namely, Ram Sewak Singh, Chuttar Singh. Ram Sewak Singh died leaving behind Keshwar Singh and Baleshwar Singh. Baleshwar Singh died in 1955 leaving behind Ragho Singh and Anandi Kuer. Anandi Kuer is original defendant No.1. The plaintiff claimed to be the adopted son of Ragho Singh. This plaintiff Kishori Singh is one of the grand son of Chuttar Singh being the son of Rameshwar Singh. 3. The plaintiff claimed that he was adopted by Ragho Singh in the year 1955 and since then he is the owner of the property being the adopted son of Ragho Singh. The defendant denied the adoption and claimed that since her father Baleshwar Singh died after 1956 therefore, she is entitled for half share in the property of Baleshwar Singh and secondly that on the death of Ragho Singh, the property will devolve on him. Admittedly, Ragho Singh died in the year 1968. 4. Both the Courts below considering the materials held that Baleshwar Singh died in the year 1955, the appellate Court found that Baleshwar Singh died in the year 1955, therefore, the property of Baleshwar Singh devolved upon Ragho Singh. The appellate Court also found that plaintiff Kishori Singh failed to prove adoption and the formalities giving and taking ceremony and, therefore, disbelieved the case of adoption. Accordingly, the appeal was dismissed. 5. This second appeal was admitted on 28.8.1990 and 3 substantial questions of law were formulated :- (i) Whether the learned Court below was justified in not taking into consideration the Ext.5, the signature of Ragho Singh on admission register as father of the plaintiff on the ground that the said signature was not compared by the handwriting expert though on the record of the case where the sale deed (ext.4 series) bearing the signature of Ragho Singh which could have been compared by the learned lower appellate Court with Ext.5? (ii) Whether the learned lower appellate Court was not justified in not taking into consideration the school leaving certificate admit card, certificate of the secondary school examination in which Ragho Singh was described as father of the appellant? (iii) Whether the learned Court below were justified in not taking into consideration since there was no document showing the adoption in favour of the appellant and as such case of adoption is not fit to be accepted? 6. The learned counsel for the appellant submitted that the lower appellate Court discarded Ext.5 which is admission register in the high school wherein the name of father of plaintiff has been described as Ragho Singh and it contains signature of Ragho Singh. The appellate Court discarded the same on the ground that the plaintiff did not get it compared with admitted signature, although there was no denial on the part of the defendant regarding the signature of Ext.5. The learned counsel further submitted that the Court should have examined suo motu the signature of Ragho Singh because admitted signatures were filed by the plaintiff ext.4 series but instead of comparing the same, the Courts below discarded ext.5. The learned counsel further submitted that the Courts below have not considered admit card, certificate of the secondary school examination wherein the name of father has been mentioned as Ragho Singh, and, therefore, Judgment of both the Courts below are vitiated. The learned counsel further submitted that for adoption, document is not at all necessary but the Courts below disbelieved the case of adoption on the ground that no document has been produced by the appellant. 7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that ext.5 is the admission register of the year 1965 in which year the plaintiff was admitted in the school for the first time. According to the plaintiff’s claim at the age of 5, he was adopted by Ragho Singh in the year 1955. Therefore, for the first time, he was admitted in the school at the age of 15 after obtaining written permission from the competent authority. In such circumstances, the Courts below have rightly not relied upon the said document. The learned counsel further submitted that the other evidences such as admit cared and the certificates are subsequent to this ext.5 and was prepared on the basis of this ext.5. In such circumstances, the Courts below have rightly not relied upon the said document. The learned counsel further submitted that the other evidences such as admit cared and the certificates are subsequent to this ext.5 and was prepared on the basis of this ext.5. The learned counsel further submitted that the natural father and mother of the plaintiff did not come to support the case of the plaintiff that in fact there was ceremony of giving and taking by the adopted father and moreover after considering the evidences both the Courts below recorded finding of fact that the plaintiff failed to prove the fact of giving and taking ceremony and accordingly dismissed the suit. 8. The learned counsel further submitted that one Nawal Kishore who made entry ext.5 was also not examined. 9. So far the substantial question of law formulated are concerned, those relates to appreciation of the documentary evidences. According to the learned counsel for the appellant, those documents are conclusive proof of adoption. In support of his contention, the learned counsel relied upon A.I.R. 1963 Patna 362 Umesh Bhagat Vs. Smt. Ram Kumari Devi and submitted that in similar situation, a Division Bench of that Court on the basis of admission of college held that there was valid adoption but the Courts below without considering the Division Bench decision held that it is not applicable. 10. From perusal of the decision referred to above, it appears that in that case, the High Court was hearing a First Appeal. The High Court found that Dr. Sharda Prasad Bhagat had given declaration that the defendant was his adopted son. In such circumstances, the High Court, therefore, held that the plaintiff was claiming through Dr. Sharda Prasad, therefore, the declaration made by Dr. Sharda Prasad is binding on the plaintiff. In the present case, no such declaration has been filed by the plaintiff. Even if it is assumed that there is signature of Ragho Singh in the admission register that will never be deemed to be the declaration of Ragho Singh. In the Division Bench decision, nowhere it is stated that on the basis of admit card or admission register or school leaving certificate, it must be presumed conclusively and held that there was valid adoption. In the Division Bench decision, nowhere it is stated that on the basis of admit card or admission register or school leaving certificate, it must be presumed conclusively and held that there was valid adoption. It appears that both the Courts below have found that the natural mother and father were not examined and they did not come to say that in fact they gave their son in the lap of Ragho Singh. So far this finding of both the Courts below that the plaintiff failed to prove giving and taking ceremony is concerned, it is a pure finding of fact. 11. In the case of Rahasa Pandayni Vs. Gokulanand Panda 1987 (2) S.C.C. 338 , the Apex Court has given a guidelines to the Courts regarding adoption and held that an adoption would divert the normal and natural course of succession. Therefore the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. 12. In the present case, therefore, after considering the documentary evidences, both the Courts below on the basis of the said admission register or admit card disbelieved the case of adoption. It relates to appreciation of evidence that there is no such provision that on the basis of those documents, it can conclusively be recorded that there was adoption. So far oral evidences are concerned on the basis of the same also, the Courts below have recorded a finding that the plaintiff failed to prove the fact of ceremony of giving and taking. So far oral evidences are concerned on the basis of the same also, the Courts below have recorded a finding that the plaintiff failed to prove the fact of ceremony of giving and taking. Being finding of fact also, the same cannot be interfered with in second appeal nor the adequacy or inadequacy of the evidences on the basis of which Courts below have recorded the finding can be examined in second appellate jurisdiction as it is not a substantial question of law. So far examination of expert or comparison of signature are concerned, those are immaterial question in this case because even if it is held that the name of Ragho Singh is there on the admission register on the basis of that it cannot be recorded that plaintiff is the adopted son. 13. In view of the decision of the Apex Court referred to above, in my opinion, therefore, none of the substantial question of law arises for consideration in this appeal. Accordingly, this second appeal is dismissed.