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2017 DIGILAW 806 (ORI)

Rama Gauda v. Abhimanyu Gauda

2017-07-28

A.K.RATH

body2017
JUDGMENT : Dr.A.K.RATH, J. This is a defendant’s appeal against an affirming judgment. 2. Respondent as plaintiff instituted Title Suit No.30 of 1981 in the court of the learned Munsif, Bhanjanagar impleading the appellant as defendant no.1 for partition of suit schedule properties. The case of the plaintiff is that he and defendant no.1 are the sons of late Agadhu Gouda. Defendant no.2 is their mother. The suit schedule lands are the ancestral properties of the plaintiff and defendant. The plaintiff is in possession of the same. The defendant no.1 was working in a Colliery at West Bengal. He came back in the year 1981 and threatened to dispossess the plaintiff from the suit properties. Thereafter the plaintiff requested him for partition of the suit properties, but he maintained a stony like silence. 3. Defendant no.1 entered appearance and filed written statement stating therein that the suit lands are their ancestral properties. The specific case of defendant no.1 is that the plaintiff had been adopted by one Chaitanya Gouda. The plaintiff is staying with his adoptive father from his childhood. He denied the possession of the plaintiff over the suit lands. 4. On the inter se pleadings of the parties, the learned trial court framed six issues. Both the parties led evidence, both oral and documentary, in support of their cases. On a threadbare analysis of the evidence on record as well as pleadings, the learned trial court disbelieved the case of the defendant that the plaintiff was the adopted son of Chaitanya Gouda. It further held that the suit schedule lands are the ancestral properties of the parties and decreed the suit. The defendant no.1 unsuccessfully challenged the said judgment and decree before the learned Subordinate Judge, Bhanjanagar in Title Appeal No.2 of 1986, which was eventually dismissed. 5. The Second Appeal was admitted on 24.4.2001 on the following substantial questions of law:- “(i) Whether in view of settled legal position that in case of adoption long time back, validity of adoption can be presumed especially when in the instant case adoption was made more than 30 years prior to institution of suit. 5. The Second Appeal was admitted on 24.4.2001 on the following substantial questions of law:- “(i) Whether in view of settled legal position that in case of adoption long time back, validity of adoption can be presumed especially when in the instant case adoption was made more than 30 years prior to institution of suit. (ii) Whether in view of well settled principle that since the plea of non-joinder of necessary party touches the root of the case as to its maintainability, can be raised at any stage, and whether the finding of the learned lower appellate court that such plea is not entertainable at appellate stage is legal and sustainable.” 6. Heard Mr.P.K.Das, learned Advocate for the appellant. None appeared for the respondent. 7. Mr.Das, learned Advocate for the appellant submitted that the plaintiff is the adopted son of Chaitanya Gouda. The courts below have committed a manifest illegality and impropriety in not considering the voter lists, vide Exts. E, F and G. He further contended that even in absence of giving and taking ceremony adoption can be held to be proved, if it is ancient and the alleged adopted son was treated by the adoptive father and other relations as son of the adoptive father. 8. In the case of Kishori Lal Vrs. Mt. Chaltibai, A.I.R. 1959 SC 504, the apex Court 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. 9. The apex Court in the case of Lakshman Singh Kothari Vrs. Smt. Rup Kanwar, A.I.R. 1961 S.C.1378 held that under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall band over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party. 10. The burden of establishing that there was a valid adoption which deflected the ordinary course of succession is on the party who pleads the case of adoption as held by this Court in the case of Krushna Chandra Sahu and another Vrs. Pradipta Das and others, 53 (1982) C.L.T. 335. 11. This Court in the case of Bauri Dei and others Vrs. Dasarathi Sahu and others, 41 (1975) C.L.T.267 held that creation of documents is no substitute for the fact of giving and taking which must be proved independently de hors any document. 12. The pleading lacks material facts of giving and taking ceremony except bald assertion that the plaintiff was adopted by one Chaitanya Gouda. No evidence was adduced by the defendant that there was giving and taking ceremony at the time of adoption of the plaintiff. The voter lists have been marked as exhibits. The same is no substitute for the fact of giving and taking. On an anatomy of the pleadings and evidence, both the courts have negatived the plea of adoption. There is no perversity or illegality in the findings of the courts below. Accordingly, the substantial question of law no.1 is answered. With regard to substantial question no.2, since no plea was taken and no evidence was adduced by the defendant, this Court did not delve into the same. 13. In the ultimate analysis, the appeal fails and is dismissed. No costs.