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2016 DIGILAW 168 (ORI)

Bankanidhi Mohapatra @ Sura v. Uma Padhi

2016-03-02

D.DASH

body2016
JUDGMENT The appellant in this appeal has called in question the judgment and decree passed by the learned Civil Judge (Senior Division), Khurda in Title Appeal No. 17 of 1994. By the said judgment and decree, the lower appellate Court has set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Banpur in T.S. No. 03 of 1990 and thus the suit filed by the appellant as the plaintiff which was decreed by the trial Court declaring the plaintiff to be the adopted son of one Halu Mohapatra has been upset and the suit has accordingly ended with dismissal. 2.For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the Court below. 3.Plaintiff’s case is that he is the natural son of one Laxman Kumar Suar of village Badasireipur. Halu Mohapatra, the original defendant happens to be the brother-in-law ( sister’s husband) of Laxman. Halu had three daughters, who are all married and they have been substituted after the death of Halu. The original defendant contested the suit when two of them filed the appeal in which they have succeeded. It is stated that as Halu, the original defendant has no male issue, he and his wife decided to adopt a son, and accordingly, proposed Laxman to take plaintiff in adoption as their son. Laxman and his wife agreed to the said proposal to give plaintiff in adoption. Accordingly, the adoption ceremony was held as per the Hindu Rites and Customs on the auspicious Srigundicha day of the year 1966 in presence of relations of the parties. The giving and taking ceremony got completed on that day. The plaintiff was aged around one and half year at that time. It is the further case of the plaintiff that since the time of his adoption, be began to reside with Halu and his wife under one roof as their son. Halu and his wife took all his care as their son. Halu, the original defendant got the plaintiff admitted in the school, give him the education and also performed thread ceremony as also his marriage. The plaintiff with his wife after marriage continued to remain with Halu and his wife, along with two children born to them. Halu and his wife took all his care as their son. Halu, the original defendant got the plaintiff admitted in the school, give him the education and also performed thread ceremony as also his marriage. The plaintiff with his wife after marriage continued to remain with Halu and his wife, along with two children born to them. It is also the case of the plaintiff that the original defendant executed a deed of acknowledgment of said adoption which was registered on 01.07.1983. It is alleged that when Halu, the original defendant became old, the plaintiff was looking after him and was taking his care. But during that period some persons of mischievous character intervened and joined hands with one of the son-in-laws of the original defendant, i.e. the husband of defendant no. 1(b) and they got a deed of cancellation of earlier deed of acknowledgement of adoption registered on 05.01.1989 which is said to be of no effect in the eye of law and does not take away the status of the plaintiff as the son of the original defendant. In view of that, plaintiff filed the suit seeking a declaration that he is the adopted son of the defendant. 4.Halu being arraigned as the sole defendant contested the suit by filing the written statement. While traversing the plaint averments, his normal relationship with the plaintiff is not denied. But the factum of adoption of the plaintiff by him and his wife in the year 1966 through necessary giving taking ceremony is specifically denied and so also his role in the performance of the thread ceremony and marriage of the plaintiff. He has also stated to have not admitted the plaintiff in the school being his adoptive father. The deed of acknowledgement of adoption dated 01.07.1983 is said to be the outcome of fraudulent activity of one Purna Chandra Biswal and Laxman, the father of the plaintiff. It is next stated that he had allowed the plaintiff to stay in his house only for the purpose of helping him in performing the Seva Puja in the temple. However , in course of time as disturbance arose, Purna Chandra Biswal was selected as the mediator and he influenced the defendant to go for a deed when the plaintiff was 23 years old. However , in course of time as disturbance arose, Purna Chandra Biswal was selected as the mediator and he influenced the defendant to go for a deed when the plaintiff was 23 years old. It is further stated that Purna Chandra Biswal had instructed the scribe and got described therein the previous conduct of the plaintiff as his son since the childhood and observance of the ceremonies which were never read over and explained to the defendant or to his knowledge. When subsequently, he faced the trouble from the side of the plaintiff, he had no other way but to consult the local gentlemen showing the deed of acknowledgement of adoption snatched away from him which contained those recitals. He also cancelled the same and accordingly despite the threat of the plaintiff, he got the deed of cancellation of the earlier deed of acknowledgement of adoption taken from him without his knowledge. This deed of cancellation is dated 05.01.1989. After substitution of the daughters of the original defendant, as defendant no. 1(a) and 1(b), they filed their additional written statement adopting the earlier written statement of their father, further adding that for execution and registration of the cancellation of deed, the defendant had also consulted Purna and placed full faith and reposed confidence on him, who got the recitals written therein behind his back. They also state that the plaintiff and the second daughter of the defendant, i.e. defendant no. 1(b) with her husband to have been staying in the house of the original defendant. 5.On such rival pleadings, trial Court framed seven issues. The parties led evidence, oral and documentary at length. Plaintiff examined six witnesses including himself and the deed of acknowledgement of adoption, Ext, 2; school admission register, Ext. 1; school leaving certificate, Ext. 3; and the certified copy of the orders passed by the Assistant Commissioner of Endowments, Bhubaneswar in O.A. No. 5 of 1993. The defendant has led evidence by examining four witnesses including defendant nos. 1 (a) as D.W.4 and they have also got the certified copy of the order sheet passed of Misc. Case No. 44 of 1991 on the file of learned Sub Judge, Khurda, certified copy of the order of the Executive Magistrate passed in Misc. Case No. 191 of 1991, Ext. B; the deed of cancellation of acknowledgement of adoption, Ext. 1 (a) as D.W.4 and they have also got the certified copy of the order sheet passed of Misc. Case No. 44 of 1991 on the file of learned Sub Judge, Khurda, certified copy of the order of the Executive Magistrate passed in Misc. Case No. 191 of 1991, Ext. B; the deed of cancellation of acknowledgement of adoption, Ext. F and also the certified copy of the order passed in O.A. No. 05 of 1993, Ext. G; besides the Record of Rights, Exts. C and D. 6.As it appears from the judgment of the trial Court on issue no. 3 relating the genuineness of the deed of adoption and as such if it is binding, has been taken up for decision at first. Upon examination of evidence on record, such document Ext. 2 has been accepted as valid and genuine simultaneously holding that the provision under Section 16 of the Hindu Adoption and Maintenance Act (in short, ‘the HAMA’)do not come into play to the aid of the plaintiff. The next issue concerning the validity of deed of cancellation of acknowledgement of adoption in view of Section 15 of the HAMA, it has been finally found that said document of cancellation has no legal force or impact. Thereafter going to address other issue no. 2 which is the crucial one, upon discussion of evidence, the trial Court’s finding runs in favour of the case of the plaintiff holding him to be the adopted son of the original defendant. With these finding, the trial Court decreed the suit of the plaintiff declaring him to be the adopted son of the original defendant. The daughters of the original defendant, who are the defendant no. 1(a) and 1(b) being aggrieved by the said judgment and decree, preferred an appeal under Section 96 of the Code of Civil Procedure which came to be heard by the learned Sub Judge, Khurda wherein all the above stated findings of the trial Court were put to challenge. 7. On a careful reading of the judgment of the lower appellate Court, it is seen that he has gone for critical examination of the evidence both oral and documentary as placed by the parties. 7. On a careful reading of the judgment of the lower appellate Court, it is seen that he has gone for critical examination of the evidence both oral and documentary as placed by the parties. Not only that evidence coming from the lips of each of the witnesses examined from both the sides have been scrutinized but also the said evidence of one witness has also been compared with the evidence of one witness has also been compared with the evidence of other witnesses in taking a view in the cumulative, and finally it has arrived at a conclusion contrary to the one arrived at by the trial Court in holding that the factum of adoption as asserted by the plaintiff and his status as the adopted son of the original defendant has not been established through acceptable evidence as required under law and that the plaintiff has failed to discharge the burden of proof resting on him. It may be further stated here that the lower appellate Court has taken the pain of examining the recital of the deed of acknowledgement of adoption in taking a view that the said recitals rather goes against the case of the plaintiff as regards the year of adoption and his age as asserted to be at the time of adoption materially differs. It has also been said that the parties being Brahmins (Dwija), there is no evidence for performance of ‘Datta Homam’ which has been taken as a negative circumstance to the case of the plaintiff. So, now those reversal findings are being challenged in the second appeal by the unsuccessful plaintiff. 8.The appeal has been admitted on the substantial question of law as indicated in grounds no. 1 and 2 of the memorandum of appeal which run as under:- (1) Whether the performance of ‘Datta Homam’ during the adoption ceremony is mandatorily required and the same is essential for valid adoption in view of proviso to Section 11 of the Hindu Adoption and Maintenance Act?. (2) Whether the date of execution of Ext. 2 is to be treated as the date of adoption?. 9.Learned counsel for the appellant submits that the finding of the lower appellate Court against the factum of adoption of the plaintiff by Halu is not based on proper appreciation of evidence. (2) Whether the date of execution of Ext. 2 is to be treated as the date of adoption?. 9.Learned counsel for the appellant submits that the finding of the lower appellate Court against the factum of adoption of the plaintiff by Halu is not based on proper appreciation of evidence. According to him, when the trial Court having the occasion to record the evidence had accepted the evidence with regard to the factum of adoption, the lower appellate Court ought not to have taken a different view without giving satisfactory and justifiable reasons and should not have done so just because it has the power to do so. He next contends that the evidence on record are overwhelming in establishing the case of adoption of the plaintiff by Halu by giving and taking ceremony and by performance and observance of the rites as per the custom prevailing in the community. He also contends the there remains strong corroborative evidence to support the said pleading of adoption that the plaintiff was given education by Halu; he was reading in the school being admitted by Halu and as such was living all along in the house of Halu. He further submits that the lower appellate Court has made out a third case for the defendant as regards non-performance of ‘Datta Homam’ when it has not at all been pleaded by the defendant that such ‘Datta Homam’ was a part of their custom for the adoption and moreover when witnesses have said about performance of ‘Jagyan’, absence of exact word ‘Datta Homam’ which might be a slip while recording ;while recording the evidence ought not to have been taken as a serious infirmity by the lower appellate Court, as the law is not mandatory for fulfillment of said requirement under the provision of Section 11 (d) of HAMA. Placing the relevant paragraphs of the judgment of the trial Court as also the lower appellate Court, his submission is that there was no justification for the lower appellate Court to disturb the well reasoned finding arrived at on the basis of the sound appreciation of evidence as regards factum of adoption of plaintiff as recorded by the trial Court. Therefore, according to him, when Ext. Therefore, according to him, when Ext. 2 corroborates the direct evidence as also when other evidence remain on record to support the findings, the lower appellate Court has fallen in error in upsetting the trial Court’s finding as regards the adoption of the plaintiff by Halu. 10.Learned counsel for the respondent while supporting the finding of the lower appellate Court against the factum of adoption of the plaintiff contends that it is to be kept in mind that this Court is exercising the power under the provision of Section 100 of the Code in seisin of the second appeal; so when the appellate Court being the final Court of fact has upset the finding of the trial Court from a given set of circumstance that the trial Court had drawn one inference where as the lower appellate Court has drawn the other, finding of the lower appellate Court has to prevail in the second appeal, unless it is found that the lower appellate Court has not given the satisfactory reasons in drawing such inference. So, he contends that this Court should not sit over to substitute its opinion for the opinion of the first appellate Court as there remains no material to show that the conclusions that the lower appellate Court has drawn are erroneous being contrary to the mandatory provisions of law or the settled position on the basis of pronouncement made by the Apex Court or are based upon inadmissible evidence or arrived at ignoring the material evidence. He further submits that even if accepting for a moment that the view taken by the trial Court for non-performance of ‘Dutta Homam’ is a strong negative circumstance running against the adoption is untenable, his further contention stands that even the evidence on the factum of adoption as led by plaintiff is not at all satisfactory. According to him, there are serious discrepancies and the evidence of one witnesses differ in material particulars with the other. Taking much of pain, he has placed paragraph-6 of the judgment of the lower appellate Court which is a long one and containing detail examination of evidence which will obviously full for discussion later. He lastly contends that there remains no such flaw in the ultimate conclusion drawn by the lower appellate Court. Taking much of pain, he has placed paragraph-6 of the judgment of the lower appellate Court which is a long one and containing detail examination of evidence which will obviously full for discussion later. He lastly contends that there remains no such flaw in the ultimate conclusion drawn by the lower appellate Court. 11.The position of law is no longer res integra that after amendment of the Code of Civil Procedure, a second appeal lies if any substantial question of law is involved in this case. It is the settled law that for the purpose efforts are to be made to distinguish between a question of law and a substantial question of law. The right of the appeal is neither a natural nor an inherent right attached to the litigation, being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. So, the conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. 12.In the case of Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co Ltd; AIR 1962 SC 1314 , it has been held that:- “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 13.In the case of Mst Sugani Vs. Rameshwar Das and Anr, is the authoritative pronouncement of the Apex Court covers in the subject finds mention in paragraphs 17 and 18 which are extracted herein below:- “17. Rameshwar Das and Anr, is the authoritative pronouncement of the Apex Court covers in the subject finds mention in paragraphs 17 and 18 which are extracted herein below:- “17. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact. It is true that the lower appellate Court should not ordinarily but even where it has rejected the witnesses accepted by the trial Court; the same is no ground for interference in second appeal, when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 18. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or to procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govinda Morey, AIR 1976 SC 830 held that whether the trial Court should not have exercised its jurisdiction differently is not a question of justifying interference” 14.Undoubtedly in the instant suit, the burden of proof as regards factum of adoption of the plaintiff as asserted clearly rests on him so as to be discharged. The requirements of law for establishing a case of adoption are well known. A party claiming such adoption which is denied by the adversary must establish the factum of adoption by clear and cogent evidence for acceptance of the Court after testing the same from different angles and in the back drop of conduct of the parties and also in repelling the negative circumstances if any through proper explanation. As the adoption deflects the natural line of succession; the standard of appreciation of evidence has been put at a higher pedestal for satisfaction. 15.The Apex Court in case of A. Raghavamma v. A.Chenchamma; AIR 1964 SC 136 has held that:- “It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Addressing the appreciation of evidence on the factum of adoption, the authoritative pronouncement is that the evidence in proof of adoption should be free from all suspicion and that must be so consistent and probable as to give no occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact (Kishori Lal v. Chaltibai, AIR 1959 SC 504 .) In case of Lakshman Singh v. Smt. Rupkanwar, AIR 1961 SC 1378 , it has been held that:- “ “For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoption whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption”. 16.Now let us advert to the facts and circumstances of our case. The plaintiff’s case is that adoption had taken place in the year 1966 on the auspicious day of Srigundicha and in that regard he has led oral evidence by examining the witnesses. In support of adoption, the deed has been proved which been marked as Ext. 2. Said deed is not the deed of adoption being not in conformity with the provision of Section 16 of the Act and at best be a deed of acknowledgement of adoption. So, no presumption is available for the said document as provided under Section 16 of the HAMA. The same may be taken as a piece of corroborative evidence subject to the proof of the same in accordance with law. However, the plaintiff has relied upon the fact that the defendant is the signatory to the same; when defendant pleads that the recitals were not according to his dictation and were never read over and explained to him. At this stage, it is necessary before giving a look to those recitals, one important circumstance that strikes to mind and cannot be lightly brushed aside. The deed has come into being in the year 1983 after long lapse of about 17 years, since the time of adoption as asserted. The very document being made after such long lapse of time itself is a circumstance to cast shadow of doubt on the factum of adoption that when everything was going so smoothly till then, how the apprehension suddenly came giving rise the necessity for having the document. There remains absolutely no explanation for the same and if at all it was decided to have a document why it was not so made without consent of the daughters who are then not said to be opposing or to be not having the cordiality. Next looking at the recitals of the said document, it is found to have been indicated there that “PURBABAT POUSHYA PUTRA RAPE GRAHANA KALU. Next looking at the recitals of the said document, it is found to have been indicated there that “PURBABAT POUSHYA PUTRA RAPE GRAHANA KALU. TUME GRAHITA AJA DINA THARU XX XX XX JANMITA PUTRARA PAITRUKA SAMPATIRE JEUN JEUN ADHIKAR MANA UPUJE TAHA SABU TUMBHA THARE PRABARTAILA” A bare reading of the above leads to show as if the plaintiff was accepted as the adopted son on the date of execution of the document though he was being treated as such earlier. It does not find mention of the earlier giving and taking ceremony much less to say as to the day, month or year of performance of said ceremony and the adoption. The plaintiff’s age on the date of document comes around 20 years which is not in conformity with the provision under Section 10 of the HAMA. If the age of the plaintiff is taken as mentioned in Ext. 2, his year of birth comes to 1960. So his claim that he was taken as adoption when he was one and half years in the year 1966 falls flat. The school admission register Ext. 1 gives out a third case showing his date of birth as on 11.01.1964 and the margin is also not so nominal. The father of plaintiff who is the most competent witness examined as P.W. 5 has deposed his age at the time of giving evidence as 60 years, and he has further deposed that by the time of his marriage he was aged 19 years and the plaintiff was born after four years of marriage. Bare reading being given to his evidence thus leads to the conclusion that the plaintiff was aged about 37 years in the year 1994 when P.W.5 deposed in Court and from that if computation is made so far as the date of birth of the plaintiff is concerned, it comes around 1957. This belies the case and the recital of Ext. 2. Similarly the evidence of P.W.3 on being examined shows the adoption year to be 1964. The lower appellate Court has made thread bare analysis of sad evidence and it has further noted the discrepancy against the witnesses examined by the plaintiff in so far as the factum of adoption is concerned as also the performance of giving and taking ceremony which need no reiteration as those are quite apparent. The lower appellate Court has made thread bare analysis of sad evidence and it has further noted the discrepancy against the witnesses examined by the plaintiff in so far as the factum of adoption is concerned as also the performance of giving and taking ceremony which need no reiteration as those are quite apparent. The first appellate Court is shown to have exercised the discretion in a judicious manner and it cannot be termed to be an error of law or procedure and further in doing so satisfactory reasons have been assigned by the lower appellate Court with which this Court finds itself in agreement. Of course the adverse view taken by the lower appellate Court for non-performance of ‘Datta Homam’ is not acceptable for the simple reason that in that regard there is no pleading in the written statement about such custom being followed in the community and nothing has been shown to indicate that further ceremony of ‘Datta Homam’ is necessary. Moreover, the witness in so many words though have not uttered the word ‘Datta Hamam’, nonetheless they have stated about ‘Jagnya’ which ought to have been taken to understood in that light as also the possibility of its being so there out of recorder’s devil is not altogether ruled out. It may further by stated here that under Section 10 of the Hama, a person is not capable of being taken in adoption if he has completed the age of 15 years and that is the reason the word ‘child’ has been used in Section 9 and 10 of the HAMA. The word ‘person’ used in Section 6(III) and at the commencement of Section 10 of the HAMA is not for the purpose of bringing any differences in law in regard to the giving of the child. If custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or mother. The plaintiff having not pleaded all these has been trapped during trial when his witnesses have expressed about his age and then also they do not state about the exception as per custom. The plaintiff having not pleaded all these has been trapped during trial when his witnesses have expressed about his age and then also they do not state about the exception as per custom. For the aforesaid discussion and reasons, this Court does not find any such infirmity in the matter of appreciation of evidence made by the lower appellate Court in finally arriving at a conclusion differing with that of the trial Court on the factum of adoption against the plaintiff and thus the same stands affirmed and the judgment and decree passed by it in dismissing the suit are hereby confirmed. 17.Resultantly, the appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.