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2016 DIGILAW 693 (ORI)

Maheswar Mukhi (dead) v. Sanu @ Sanatan Mukhi

2016-08-26

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This is a plaintiffs’ appeal against confirming judgment. 2. Maheswar Mukhi instituted T.S. No. 69 of 1999 in the court of the learned Civil Judge (Junior Division), Baripada for a declaration that he is the adopted son of Radha Mukhi and permanent injunction impleading the respondent as defendant. The case of the plaintiff is that one Radha Mukhi and his wife Chintamani Mukhi were issueless. They approached his natural father-Fakir Mukhi to give one of his son in adoption. His natural parents agreed to give him in adoption. On the day of Sripanchami of the year 1973, he was adopted by Radha Mukhi and his wife as their son. There was a giving and taking ceremony. His natural parents handed over him to his adoptive parents and his adoptive parents accepted him as their son. At that time he was nine years old. The further case of the plaintiff was that acknowledging the adoption, Radha Mukhi executed a registered deed of adoption in the year 1990. Since then he was brought up by Radha Mukhi and his wife as their son. Radha Mukhi performed his marriage. He stayed in the house of Radha Mukhi. On the death of Radha Mukhi and his wife, he performed their obsequies ceremony. It is further stated that the defendant became inimical to him and his animosity towards him grew after the death of Radha Mukhi and his wife. The defendant instigated other family members of Radha Mukhi not to treat him as the adopted son of Radha Mukhi and dissociated them from keeping any relationship with him. It is apt to state here that during pendency of this appeal, the original plaintiff died; whereafter his legal heirs and successors have been substituted as appellant nos. 1 to 4. 3. Pursuant to issuance of summons the defendant entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendant is that he is the brother of Radha Mukhi. Radha Mukhi was a bachelor. Radha Mukhi had not adopted the plaintiff as his son. Pata Mukhi, mother of Radha Mukhi and Syama Mukhi, nephew of Radha Mukhi were staying with Radha Mukhi. They were looking after him. After the death of Pata, Shyama was looking after him most of the time. Radha Mukhi was a bachelor. Radha Mukhi had not adopted the plaintiff as his son. Pata Mukhi, mother of Radha Mukhi and Syama Mukhi, nephew of Radha Mukhi were staying with Radha Mukhi. They were looking after him. After the death of Pata, Shyama was looking after him most of the time. Chintamani Mukhi was the wife of one Sama Jena, who was the neighbour of Radha Mukhi. The plaintiff is a stranger to the family of Radha Mukhi and as such there was no question of the plaintiff performing the obsequies ceremony of Radha Mukhi. 4. Stemming on the pleadings of the parties, the learned trial court struck six issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf five documents were exhibited. The defendant had examined two witnesses and on his behalf three documents were exhibited. On an anatomy of pleadings and threadbare evidence on record, both oral and documentary, learned trial court held that the plaintiff failed to prove that he is the adopted son of Radha Mukhi. Held so, learned trial court dismissed the suit. 5. Assailing the judgment and decree of the learned trial court, the plaintiff filed RFA No. 61 of 2005 in the court of learned District Judge, Baripada, which was subsequently transferred to the Addl. District Judge, Baripada and renumbered as RFA No. 24 of 2007, which was eventually dismissed. 6. Criticising the judgment, Mr. A.R. Dash, learned counsel for the appellants, argued with vehemence that the natural father of the plaintiff was examined as P.W.2. P.W.2 stated that there was a giving and taking ceremony. By the time the suit was filed, the adoptive parents were dead. In view of the same, the courts below fell into patent error in not considering the evidence of P.W.2 to hold that there was a giving and taking ceremony. He submitted that the deed of adoption executed by Radha Mukhi vide Ext.3 shows that the plaintiff was adopted by Radha Mukhi in the year 1990. But then, on untenable and unsupportable grounds, learned courts below did not accept the same. He further submitted that the plaintiff had performed the obsequies of the adoptive parents and the same is valid proof of adoption. But then, on untenable and unsupportable grounds, learned courts below did not accept the same. He further submitted that the plaintiff had performed the obsequies of the adoptive parents and the same is valid proof of adoption. With regard to findings of the courts below, the non-mention of the name of the adoptive father of the plaintiff in the school admission records and other records, he submitted that the same is immaterial in view of the clinching evidence on record that the plaintiff is the adopted son of Radha Mukhi. 7. The apex court in the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504 , held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the 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. 8. In Rahasa Pandiani (dead) by L.Rs and others v. Gokulananda Panda and others, AIR 1987 SC 962 , the apex Court held that 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. It was further held that experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place, and the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such adoption is beyond reproach. 9. On the anvil of the decisions cited supra, the case of the plaintiff be examined. The plaintiff asserted that he is the adopted son of Radha Mukhi and Chintamani Mukhi. On the day of Sripanchami of the year 1973, he was adopted. There was a giving and taking ceremony. His natural parents had handed over him to the adoptive parents and the adoptive parents accepted him as their son. At the relevant point of time, he was nine years old. On the day of Sripanchami of the year 1973, he was adopted. There was a giving and taking ceremony. His natural parents had handed over him to the adoptive parents and the adoptive parents accepted him as their son. At the relevant point of time, he was nine years old. The adoptive father executed a deed of adoption of the year 1990. Both the courts below held that P.W.1 in his evidence had stated that he was adopted in the year 1990. By the time the deed of adoption was executed, he was 22 years. It was further held that the plaintiff made prevaricating statement with regard to the date of adoption. P.W.3 was the scribe of the deed. He deposed that Radha Mukhi adopted the plaintiff on 12.4.1990 and at the relevant point of time, the plaintiff was 22 years. In paragraph-8 of the judgment, the learned lower appellate court had given a vivid detail of the deed of adoption, Ext.3 and came to hold that the same was tampered with. The learned lower appellate court came to hold that though signature of natural father was given on each page of the document, but the same was scored out with initials of the advocate, who drafted and prepared the same. No certificate had been appended by the scribe for scoring out the signature. The signature of P.W.2, Ext.3/a had been manipulated subsequent to the registration of the deed. The signature given on the words “natural father” on the last page of the deed had been scored out with initial of the advocate, P.W.3 who scribed the same. The signature of P.W.2 had been inserted in between the signature of two witnesses who had signed on the deed and the same creates doubt regarding the signature. Further, the name of Maheswar Mukhi had been written on the back side of the stamp paper of Ext.3 and subsequently the word ‘Mukhi’ had been scored out and the word ‘Radha’ had been mentioned in place of ‘Maheswar’. In Ext.3, it is clearly mentioned that on 12.4.1990, Radha Mukhi adopted Maheswar Mukhi which had been substantiated by P.W.3, the scribe of the deed. The assertion of the plaintiff that he was adopted on the day of ‘Sripanchami’ in the year 1973 has not been mentioned in Ext.3. In Ext.3, it is clearly mentioned that on 12.4.1990, Radha Mukhi adopted Maheswar Mukhi which had been substantiated by P.W.3, the scribe of the deed. The assertion of the plaintiff that he was adopted on the day of ‘Sripanchami’ in the year 1973 has not been mentioned in Ext.3. The learned lower appellate court further held that not a single witness had been examined by the plaintiff in support of the claim of adoption. The attesting witnesses of the deed had not been examined. The learned lower appellate court came to a conclusion that the evidence of the plaintiff and the witnesses is discrepant, inconsistent and not trustworthy. 10. In Bauri Dei and others v. Dasarathi Sahu and others, XLI (1975) CLT 267, this Court held that the creation of documents is not substitute for the fact of giving and taking which must be proved independently de hors any document. 11. The same view was taken in Krushna Chandra Sahu and another v. Pradipta Das and others, (1982) 53 CLT 35. It was held that a document acknowledging adoption or containing recital regarding giving and taking of adoption are not sufficient themselves to constitute legal adoption in the absence of evidence about actual giving and taking of the child. 12. The plaintiff has not proved the factum of giving and taking ceremony by adducing cogent evidence and has taken inconsistent plea with regard to the date of adoption. The plaintiff asserts that he was adopted by Radha Mukhi and Chintamani Mukhi on the day of Sripanchami of the year 1973. But then in his evidence he stated that he was adopted in the year 1990. P.W.3, scribe of the deed stated that the plaintiff was adopted on 12.4.1990. If the said date is accepted, then the plaintiff was 22 years at the time of adoption. The same cannot be, in view of embargo under Section 10(iv) of the Hindu Adoptions & Maintenance Act, 1956 that no person shall be capable of being taken in adoption unless he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. No clear picture emerges with regard to the actual ceremony of giving and taking. No independent witness had been examined to prove the giving and taking ceremony. No clear picture emerges with regard to the actual ceremony of giving and taking. No independent witness had been examined to prove the giving and taking ceremony. The deed of adoption vide Ext.3 is not a substitute the actual giving and taking ceremony with regard to alleged adoption. As rightly held by the courts below that the evidence adduced by the plaintiff do not inspire confidence. 13. Strong reliance has been placed by Mr. Dash, learned counsel for the appellant that the evidence of the plaintiff with respect to performance of funeral rites of his adoptive parents. 14. About 150 years back, the Privy Council in the case of Tayammaul v. Sashachalla Naiker, (1865) 10 Moo Ind App 429 held that performance of funeral rites will not sustain the validity of the adoption, unless it clearly appears that the act itself was performed under such circumstances as would render it perfectly legal. 15. In view of the discussions made in the foregoing paragraphs, this Court is of the view that no substantial question of law arises for determination in this appeal. The appeal is dismissed.