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2014 DIGILAW 283 (ORI)

Jogeswari Pradhan v. Rajia @ Rajendra Pradhan

2014-04-23

D.DASH

body2014
Judgment In the present appeal, the unsuccessful plaintiff as appellant has challenged the judgment and decree dated 05.08.2000 and 11.08.2000 respectively passed by the learned Civil Judge (Sr. Division), Bargarh in Title Suit No. 43 of 1995 non-suiting the appellant (plaintiff) and refusing to grant relief as prayed for against the respondent (defendant). 2. For the sake of convenience, the parties hereinafter have been referred to as they have been arraigned in the Court below: 3. The suit of the plaintiff is one for declaration that the defendant is not the adopted son of Hiradhar Pradhan, her father with the relief of confirmation of possession in respect of the suit schedule property and alternative prayer for recovery of possession. 4. According to the case of the plaintiff, one Budhu Pradhan was the common ancestor and he died leaving behind his four sons, namely, Damodar, Gadadhar, Dwarika and Hiradhar. The plaintiff is claimed to be the sole legal representative of Hiradhar on the death of her mother Hema in the year 1991. As per the case of the plaintiff, defendant is the son of late Dwarika. So, plaintiff claims to be the only daughter and successor-in-interest of late Hiradhar and it is said that the defendant falsely stakes his claim to be the adopted son of Hiradhar. Accordingly, the plaintiff has claimed reliefs as stated above. The plaintiff while denying the status of defendant as the adopted son of her father Hiradhar, claims to be in possession of the suit schedule properties and stating that the defendant is in a mood to dispossess her, the suit has been filed. 5. The defendant by filing the written statement contested the suit. Admitting himself to be the natural son of late Dwarika Pradhan, he has specifically pleaded to have been adopted by Hiradhar and his wife Hema, i.e. by his paternal uncle and aunt, when they had no child. It is the further case of the defendant that the adoption took place on SRIPANCHAMI day in the month of Magha in the year 1952. As stated, the ceremony to that effect was performed in the house of Hiradhar. It is also stated that for all purpose and in every sphere, he was recognized as the son of Hiradhar when Hiradhar and his wife Hema had all along given out to that effect. As stated, the ceremony to that effect was performed in the house of Hiradhar. It is also stated that for all purpose and in every sphere, he was recognized as the son of Hiradhar when Hiradhar and his wife Hema had all along given out to that effect. The defendant claims to have been residing with the adoptive parents all throughout their life and he further claims to be in occupation of the house where Hiradhar and Hema were residing. The defendant admits the plaintiff to be his sister living with her husband, but denies her case with regard to possession while claiming the possession unto himself. With these pleadings, he prayed for dismissal of the suit. 5. On the above rival pleadings, the trial Court framed six issues. Out of which the most important one is the issue relating to adoption as claimed by the defendant and denied by the plaintiff as the fate of the suit hinges upon the answer on this particular issue. The parties have adduced the evidence during the trial of the suit. When plaintiff has examined five witnesses including her husband P.W.4, the defendant has also examined witnesses of equal numbers including himself as D.W.2. The Trial Court on analysis of evidence, both oral and documentary in its wisdom, has answered Issue No. 2 holding the defendant to be the adopted son of Hiradhar and Hema, the parents of the plaintiff. The suit of the plaintiff has accordingly been dismissed. While simultaneously answering another issue No. 5 as regards limitation also against the plaintiff. 6. In this appeal, the plaintiff mainly assails the finding on Issue No. 2 and next on that Issue No. 5. Learned counsel for both the sides also advanced argument and counter argument at length on above issues. The learned counsel for the appellant (plaintiff) attacked the finding on the said issue of adoption as contrary to the evidence on record and based on improper rather perverse appreciation of evidence. On the contrary, learned counsel for the respondent (defendant) strenuously supported the finding on the said issue rendered by the Trial Court against the plaintiff and in favour to the defendant. On the contrary, learned counsel for the respondent (defendant) strenuously supported the finding on the said issue rendered by the Trial Court against the plaintiff and in favour to the defendant. According to him, the oral and the documentary evidence when taken into consideration together with the facts' and circumstances, as they emanate from the evidence, as regards the conduct of the parties, the recognition of defendant in the society as well, the finding as rendered by the Court below is wholly sustainable and there arises no justification to hold the contrary. 7. In the touchstone of the pleadings of the parties, the evidence adduced by the parties with regard to the factum of adoption, both oral and documentary, keeping in view the settled position of law, concerning the adoption as well as the appreciation of evidence and looking at the burden of proof in such case, this Court is now called upon to examine the sustainability of the finding of the trial Court on Issue No. 2. 8. Before going to take up that exercise, it requires consideration and disposal of an application under Order 41, Rule 27, C.P.C. filed by the plaintiff for adduction of additional evidence, i.e. the certified copy of an order passed in Consolidation Revision No. 473/1995 and the certified copies of the corrected R.O.Rs. 8.1 Learned counsel for the appellant (plaintiff) submits that these documents having coming into being after the disposal of the suit and those being public documents, whatever may be the evidentiary value as well as the impact of those in answering the Issue No. 2, as it may be, there remains no justification to refuse to admit those in evidence for a just and proper decision of the case. Learned counsel for the defendant, on the other hand, resists the moves. According to him, these are post litem documents and, therefore, those are hardly of any significance in addressing the present dispute between the parties. The first document is a certified copy of the order passed in Consolidation Revision. That was filed by the present plaintiff against the recording of the land of her father in favour of the defendant indicating the defendant to be the son of Hiradhar. The revision was filed in the year 1995 and disposed of on 30.05.2002. The first document is a certified copy of the order passed in Consolidation Revision. That was filed by the present plaintiff against the recording of the land of her father in favour of the defendant indicating the defendant to be the son of Hiradhar. The revision was filed in the year 1995 and disposed of on 30.05.2002. So it is prior to the filing of the suit and the revision was filed challenging the entry of the name of the defendant and showing him to be the son of Hiradhar. This is just a conduct of the plaintiff that having come to know about the recording and the reason for the same instead of sitting silent, she had knocked at the door of the authority as per law. In that very revision, the pendency of the present appeal was also submitted. The certified copy of the two Records of Rights, one concerning land of Mouza-Talmunda and the other one relating to the land of Mouza-Dekulaba appears to have been prepared on the basis of the aforesaid order in the Consolidation Revision and in another Revision Case No. 119 of 1995. In both the Records of Rights, mainly the father's name of the defendant was changed from Hiradhar to Dwarika. In the above state of the things, I find that there remains no impediment for acceptance of these documents for additional evidence to be taken into consideration for the purpose of decision in this appeal subject to and keeping it open to consider the probative value of those documents and their impact on the subject matter as would be available in the eye of law. Thus, the petition filed under Order 41, Rule 27 CPC stands allowed and those documents have been marked as Exts. 10, 11 and 12. At this stage, learned counsel for the defendant files the certified copy of the order passed by this Court in W.P.(C) No. 1814 of 2004, wherein the said order of the Joint Commissioner under Ext. 10 was challenged and the Hon'ble Court while disposing the said writ application has observed that the recording of the Consolidation Authorities would be subject to final decision of this appeal. Learned counsel for the defendant, therefore, also urges for taking that into consideration that it has got direct bearing with the documents Exts. 10 was challenged and the Hon'ble Court while disposing the said writ application has observed that the recording of the Consolidation Authorities would be subject to final decision of this appeal. Learned counsel for the defendant, therefore, also urges for taking that into consideration that it has got direct bearing with the documents Exts. 10, 11 and 12, the said order also stands for being admitted as additional evidence. Learned counsel for the plaintiff has no objection to the same. Therefore, in the interest of justice and for just decision of the case, the said order of this Court passed in W.P.(C) No. 1814 of 2004 is also admitted as additional evidence in this appeal and marked as Ext. A-1. With this, now as stated in Paragraph-7, let the exercise be taken up. 9. It is the settled position of law that the evidence in support of the adoption must be sufficient enough to satisfy the very grave and serious onus that rests upon the person who seeks to displace the natural succession by alleging adoption. It is equally well settled that when there is a long lapse of time between the adoption and it's being questioned, every allowance for absence of such evidence to prove such fact must be favourably entertained, the reason being that on expiry of very long term of years, it is difficult to procure evidence. It has been held in the case of Rahasa Pandiari (dead) by LRs and others v. Gokulananda Panda and others, (1987) 2 SCC 338 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 shemers, who indulge in unscrupulous practice out of their lust for property. It these are only suspicious circumstances, just as the propounding 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. It has also been held in the case of Kishori Lal v. Mt. It these are only suspicious circumstances, just as the propounding 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. It has also been held in the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504 , that as an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring properties to comparative stranger or more remote relations, it is necessary that evidence to support it should be such that, it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. This Court in cases of Prafulla Kumar Biswal v. Sashi Beura and others, 1989 (I) OLR 425, Sulei Bewa and others v. Gurubari Rana, AIR 1971 Orissa 299 and Arjun Banchhar v. Bacchi Banchhar, AIR 1999 Orissa 32 has also observed that as an adoption displaces natural succession, the burden to establish the adoption is squarely on the person who propounds and that burden is heavy. Law is well settled in plethora of decisions of the apex Court as well as this Court including one in L. Debhi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi and others, AIR 1970 SC 1286 that giving and receiving are absolutely necessary to the validity of an adoption and they are the operative part of the ceremony being that part of it which transfers the boy from one family to another. 10. In the case in hand the defendant's specific case is that the adoption took place on the day of SARASWATI PUJA in the month of Magha in the year 1952, which stands denied by the plaintiff. The trial Court has discussed the evidence for answering the said issue in paragraph-5 of the judgment. He has relied upon the evidence of D.Ws. 4 and 5, who are the witnesses to the adoption ceremony, giving much emphasis to the evidence of D.W.4, who is aged about 95 years at the time of examination. For the purpose, the trial Court has also placed reliance upon Exts. A to Z, the documents admitted in the evidence from the side of the defendant. 4 and 5, who are the witnesses to the adoption ceremony, giving much emphasis to the evidence of D.W.4, who is aged about 95 years at the time of examination. For the purpose, the trial Court has also placed reliance upon Exts. A to Z, the documents admitted in the evidence from the side of the defendant. Here the plaintiff, who is admittedly the daughter of Hiradhar, has not come to the witness box and instead it is her husband, who has been examined as P.W.4. With regard to the ceremony of giving and taking, D.W.4 stating his age as 95 years at the time he stood in the witness box has deposed that the adoption took place 40 years back. So computing from that, the year of adoption as per his evidence comes around 1960. This is not of much significance because the witness coming to the dock after such a long period and at that failing age is not expected to state the year with such exactitude. But this witness has stated that the defendant at the time of adoption was 8 years old whereas the age of the defendant in the year 1952 comes to 13 years. This appears to be irreconcilable. A witness even at any distant time if it is not in a position to state the average age of the so called adopted child, his evidence is certainly pushed into cloud of suspicion more particularly when the margin remains on higher side like the present case. Such a mistake is uncondonable and if it is condoned, I am afraid that it may lead to acceptance of concocted evidence of a got up witness. During cross-examination, the D.W.4 has avoided to state the age of any of his children and also to state his own age at the time. This certainly creates a doubt in the veracity and truthfulness of his evidence with regard to the factum of adoption by giving and taking ceremonies as has been stated by this witness. Therefore, this Court is of the view that the Trial Court has not acted in a right manner in placing reliance on the evidence of the witness because of the aforesaid basic improbability and infirmity which could not have been so lightly ignored or brushed aside. Therefore, this Court is of the view that the Trial Court has not acted in a right manner in placing reliance on the evidence of the witness because of the aforesaid basic improbability and infirmity which could not have been so lightly ignored or brushed aside. The performance of obsequies of Hiradhar and Hema by the defendant is not of much significance as admittedly Hiradhar and Hema were having no son and the defendant happens to be the brother's son of Hiradhar and not a total stranger to the family. This is ordinarily the practice in many Hindu families that when there is a daughter and had been given in marriage in another family entering into a different 'gotra', the daughter and the son-in-law being not in a position to offer the 'pindas' a male young member of the family of deceased is chosen for the purpose of performing the obsequies. Of course, now approach has changed with changed mindset because of the cry for gender equality when news are pouring that the daughters are also performing the obsequies of their parents and so also the son-in-laws are directly taking part in adherence to the modern day's trend to curb this evil of gender inequality accepting that daughter and son makes no such difference in such matter of performance of duty towards parents. This derives support also from the common saying that a son is a son till he brings wife whereas a daughter is a daughter for whole of her life. Therefore, no such importance is required to be given on this act of performance of obsequies ceremony of Hiradhar and Hema by the defendant. Even if it has been done by the defendant the same has got no such bearing. Moreover such type of evidence only provide corroboration to the evidence otherwise establishing the factum of adoption by proving the giving and taking ceremony leading clear, cogent and acceptable evidence subject to certain allowances for long lapse of time. Here also fact stands admitted that plaintiff was born after the adoption, which goes to show that Hiradhar and his wife were young at the time of so-called adoption. Here also fact stands admitted that plaintiff was born after the adoption, which goes to show that Hiradhar and his wife were young at the time of so-called adoption. In absence of any other evidence, the pleading of the defendant to the effect that Hiradhar and Hema having lost their hope of begetting a child had decided and taken the defendant in adoption prima facie does not appeal to the judicial mind. The trial Court in the present case has adversely viewed the case of the plaintiff in setting up a case negativing adoption for her non-examination. This approach is completely erroneous. It is the settled position of law that for non-examination of a party to the suit, adverse inference to the case of that party can be drawn, if he has the burden of proof in proving the facts in order to establish the claim or for shifting the onus of proof to the adversary, which is not the case here as the plaintiff was not shouldering the burden of proof by leading negative evidence that there was never any adoption of the defendant by her parents. The burden of proof here heavily rests on the defendant and it is his evidence which matters when he cannot take the advantage of the weakness of the case of plaintiff. Only when the evidence adduced from the side of the defendant is found to be wholly satisfactory in arriving a conclusion that he has discharged the burden of proof of the factum of adoption, non-examination of this plaintiff could have only arisen for consideration. So, the oral evidence adduced from the side of the defendant is not sufficient to establish the proof of the ceremonies and consequentially the factum of adoption. Careful reading of the evidence of all the witnesses of the defendant as well as those of the plaintiff, this Court does not find that those are also to the effect of proving series of long standing conduct between the parties in support of adoption. For drawing an inference from the same as regards the approach of Hiradhar and Hema towards the defendant and vice versa; as to what common relations and the society were showing the response in the matter and the recognition of such status of defendant and his relationship with Hiradhar and Hema. For drawing an inference from the same as regards the approach of Hiradhar and Hema towards the defendant and vice versa; as to what common relations and the society were showing the response in the matter and the recognition of such status of defendant and his relationship with Hiradhar and Hema. No witness has also come to the witness box to say that they had the occasion to watch the conduct of Hiradhar and Hema and this defendant as well as the plaintiff from close quarters in view of their special relationship with Hiradhar and Hema favouring a case of treatment by Hiradhar and Hema and the plaintiff towards the defendant as son. No evidence in the light of the provision of Section 50 of the Evidence Act has also been tendered by the defendant. 11. Now coming to the documentary evidence, which have also been placed reliance by the Trial Court, this Court is not in agreement with the view of the trial Court that those are sufficient to favour adoption or give any positive indication in that regard. Ext. A is an affidavit said to have been sworn to by Hema. D.W.3's evidence when taken into consideration for a moment, it goes to show that the same cannot be taken to be an admission by Hema, the mother of the plaintiff. If we accept the case of the defendant for the sake of argument, then defendant can be said to have been in a position to dominant the will of this woman, who was fairly old by then. Thus, law obligates him to give such evidence that it was a free and voluntary act/deed of Hema. D.W.3's evidence rather favours for outright rejection of the same. Documents, such as Ext. B and C, are the certificate of the Amin and for the training said to have been undertaken by the defendant, whereas Ext. D is the driving licence. These are all self-serving documents and they may only stand for consideration in lending assurance to the factum of adoption after necessary ceremonies otherwise established by evidence. Voter lists Exts. E to H and the registered sale deeds' Exts. K to P as well as the loan transaction document Exts. Q and R so also Exts. These are all self-serving documents and they may only stand for consideration in lending assurance to the factum of adoption after necessary ceremonies otherwise established by evidence. Voter lists Exts. E to H and the registered sale deeds' Exts. K to P as well as the loan transaction document Exts. Q and R so also Exts. Y and Z in absence of acceptable evidence with regard to performance of giving and taking ceremony bear no such significance so as to stand for being considered and taken as proof of factum of adoption. The record of lights, which have been prepared, as already discussed, being subject to the decision of this Court in this appeal have no such role to play in answering the issue of adoption. Payment of rent by the defendant being on the basis of those records of rights does not also stand for consideration for the purpose. Now comes the documentary evidence of School Admission Register and certificates, which have been marked as Exts. 1, 2, and 3. Furthermore, Ext. 3 contains an interpolation. The plaintiff banks upon the report of the handwriting expert marked as Ext. 4 and proved through the expert P.W.3. The Trial Court committed gross error of law by discarding the report on the ground that the P.W.3 could not give the time of interpolation and whether it's by one hand or not. The report in the circumstances ought not to have been totally discarded. Most importantly as I found in this case that evidence on one score as indicated the hereinafter on being let in by the defendant would have thrown proper light in guiding the Court and that has not been done. The defendant in the case has not adduced evidence that since the time of his childhood, he was having no connection in relation to the property of his natural parents and on the score that he was totally cut-off from them. No evidence has also been adduced as to in whose name those properties stand recorded which would have shown the claim of the defendant to be bona fide that he has been deprived of his own paternal property by virtue of such adoption. So, non-adduction of such type of evidence rather calls for drawal of adverse inference to the case of adoption as set up by the defendant. So, non-adduction of such type of evidence rather calls for drawal of adverse inference to the case of adoption as set up by the defendant. In the wake of aforesaid discussion, this Court is unable to subscribe to the finding rendered by the Trial Court on this Issue No. 2 and therefore, while setting aside the same, it is held that the defendant is not the adopted son of Hiradhar and Hema and, as such, has no right over their properties. 12. Learned counsel for the defendant has given stress on the issue of limitation under Issue No. 5, which has been answered against the plaintiff in non-suiting her. It is his submission that the suit is hit under Article 57 of the Limitation Act as invalidity of the said adoption was not questioned within a period of three years from the knowledge of the plaintiff. For the purpose of reliance has been placed on Exts. L, M and N jointly executed by the plaintiff and the defendant describing the defendant as the son of Hiradhar. Therefore, it is stated that knowledge of the plaintiff even if attributed from that last date of sale deed, the suit has to be held barred by law of limitation. Learned counsel for the plaintiff submits that the plaintiff is not at all signatory in all these documents and it has not been proved by giving positive evidence that those documents come into being with the full knowledge of the plaintiff. For succeeding on the question of limitation simply proving those documents are not enough and it has to be proved through positive evidence that those were within the knowledge of the plaintiff, their contents were read over and explained to her and she having understood that the same have been written truly and correctly to her desire and after having got her nod for giving ahead with it. Such evidence is wholly lacking. Therefore, with least hesitation this Court is inclined to set aside the finding of the Trial Court on the question of limitation i.e. on issue No. 5 holding the suit of the plaintiff as barred by limitation. The answer on Issue No. 5 is accordingly rendered in favour of the plaintiff and the suit is held as not barred by law of limitation. 13. The answer on Issue No. 5 is accordingly rendered in favour of the plaintiff and the suit is held as not barred by law of limitation. 13. In the wake of aforesaid discussion and answer to crucial issues, the impugned judgment and decree passed by the Trial Court in are hereby set aside and the suit of the plaintiff is hereby decreed. Parties to bear their respective costs. Ordered accordingly.