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2018 DIGILAW 257 (ORI)

Bhikari Padhi v. Abhedananda Mishra

2018-03-16

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. Defendant no.1 is the appellant against a confirming judgment. 2. The plaintiffs-respondent nos.1 to 7 instituted the suit for partition. Case of the plaintiffs was that Kalicharan Padhi was the common ancestor of the parties. The suit properties originally belonged to him. Kalicharan died in June, 1958 leaving behind his widow Mathura, widow of his pre-deceased son, Purandar and three daughters, namely, Achala, Kumudini and Sandhyabali, plaintiff no.7. Achala died leaving behind her six sons and daughters, plaintiff nos.1 to 6, and her husband, defendant no.3. Kumudini died leaving behind her husband, defendant no.4 and two sons, defendant nos.1 and 2. Purandar died at the age of 19 years leaving behind his widow Padmalata and parents. Padmalata died issueless. Mathura died in July, 1984. The plaintiffs demanded for partition of the suit properties, but the defendants maintained a stony like silence. Defendant no.1 managed to mutate his name alone in respect of the suit lands describing himself as the son of Purandar on the basis of a registered deed of acknowledgement of adoption. Purandar and his wife Padmalata or Mathura had not adopted defendant no.1 at any point of time. There was no giving and taking ceremony. The deed acknowledging adoption was a forged one. The same was not executed by Padmalata or Mathura. With this factual scenario, they instituted the suit seeking the relief mentioned supra. 3. Defendant no.1 filed a written statement denying the assertions made in the plaint. He has not disputed the relationship of the parties with Kalicharan. He is the natural son of Kumudini, one of the daughters of Kalicharan. The specific case of the defendant no.1 is that he was adopted by Purandar, when he was two years of age. There was giving and taking ceremony. On 25.08.1975, Padmalata executed a registered deed acknowledging adoption in his favour. Mathura gave her consent to the execution of the deed. He is in possession of the suit properties continuously, uninterruptedly and to the knowledge of the plaintiffs and as such, perfected title by way of adverse possession. 4. On the, inter se, pleadings of the parties, learned trial court struck six issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the defendant no.1 is not the adopted son of Purandar and Padmalata. 4. On the, inter se, pleadings of the parties, learned trial court struck six issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the defendant no.1 is not the adopted son of Purandar and Padmalata. He has not perfected title by way of adverse possession. Held so, it decreed the suit preliminarily. Feeling aggrieved, the defendant no.1 appealed before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Additional District Judge, Bolangir and renumbered as T.A. No. 20/15 of 1991-92. The learned appellate court concurred with the findings of the learned trial court and dismissed the appeal. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground nos.(i), (ii) and (iii) of the appeal memo:- “(i) Whether the learned courts below were correct in disbelieving the adoption of the appellant-defendant no.1 on the assumption that no date of adoption is pleaded when Ext.D, the deed of acknowledgment of adoption dated 25.08.1975 clearly acknowledges the adoption in question ? (ii) Whether the mere fact that the adoptive parents were capable of procreating at the time of adopting appellant-defendant no.1 can believe the factum of adoption which has been established otherwise ? (iii) Whether the learned courts below were correct in rejecting the materials in support of adoption when all the ingredients necessary to prove adoption including giving and taking has been acknowledged under Ext.D which has presumptive value under Sec.16 of the Hindu Adoption and Maintenance Act ?” 6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. Tapas Kumar Mohanty, learned counsel for the appellant. None appears for the respondents. 7. Mr. Mohanty, learned counsel for the appellant submits that defendant no.1 is the adopted son of Purandar and Padmalata. Padmalata had executed a registered deed acknowledging adoption on 25.08.1975 vide Ext.D. Merely because the adoptive parents were capable of procreating a child at the time of adoption, the same is not per se a ground to disbelieve the factum of adoption. There was giving and taking ceremony. The courts below committed a manifest illegality and impropriety in disbelieving the plea of adoption. 8. In the case of Kishori Lal v. Mt. There was giving and taking ceremony. The courts below committed a manifest illegality and impropriety in disbelieving the plea of adoption. 8. In the case of Kishori Lal v. Mt. Chaltibai, AIR 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. This Court in Bauri Dei and others v. Dasarathi Sahu and others, Vol.XLI (1975) CLT 267, 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. 10. Learned appellate court came to hold that the adoptive mother was 38 years and defendant no.1 was 26 years in the year, 1975 when Ext.D was executed. In case, defendant no.1 was adopted at the age of two, as alleged, then the adoption took place in the year 1951, when the adoptive mother was only 14 years old and adoptive father was 33-34 years old. It further held that defendant no.1, in his evidence, has stated that Padmalata had given birth to two daughters. Thus she was capable of procreating a child. The plea that the adoptive parents lost hope of begetting any issue for perpetuating their lineage is baseless. The oral testimony led from the side of the defendant with regard to adoption ceremony is very shaky, inconsistent and improbable. The certified copy of the entry in the school admission register of Jaloe U.P. School vide Ext.1 shows that the defendant no.1 is the son of Sadhu Charan Panda, D.W.4. He was admitted in the school on 13.04.1959 in Class IV. It is a strong circumstance to belie the plea of adoption, since the surname of defendant no.1 was not changed. In the voter list of the year, 1970 vide Ext.8, defendant no.1 was described as the son of Sadhu Charan Panda. The subsequent change of the father’s name in the voter list was not done at the instance of defendant no.1. These are essentially a finding of fact. There is no perversity or illegality in the findings of the courts below. The subsequent change of the father’s name in the voter list was not done at the instance of defendant no.1. These are essentially a finding of fact. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.