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2018 DIGILAW 658 (ORI)

Harekrushna Dash v. Sadasiva Dash

2018-07-16

D.DASH

body2018
JUDGMENT In the present first appeal under Section 96 of the Code of Civil Procedure, the judgment and preliminary decree passed by the learned Civil Judge (Sr. Divn.), Banki in Title Suit No.5 of 1996 have been assailed. The respondent as the plaintiff has filed the above noted suit for partition praying for allotment of half share over the plaint ‘B’ schedule properties from out of the same in his favour and the rest half in favour of the original appellant (defendant). The trial Court has preliminarily decreed the suit entitling the respondent (plaintiff) to 4/9th share over the said schedule properties. The challenge to the judgment and preliminary decree was originally made by the sole defendant. He having died during pendency of the appeal, now the appeal is being pursued by his legal representatives in those favour the right to sue survives. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below. 3. Plaintiffs’ case is that one Uchhaba Dash had three sons namely, Raghunath, Lokanath and Radhanath; all of whom are dead. It is stated that those three sons of Uchhaba were separated both in mess and estate. It is next stated that despite the fact of separation amongst three sons of Uchhaba both in mess and estate, the record of right in respect of the ‘B’ schedule land has been published in the last settlement with joint recording in the name of Lokanath. Buli Bewa, Sadasiva (plaintiff) and Harekrushna (defendant). The plaintiff’s case is that the suit property is the ancestral property in his hand as also in the hand of the defendant being the separately possessed properties of Lokanath as allotted in the separation with his two brothers during their lifetime. 4. The defendant coming to contest the suit in his written statement has pleaded that though the plaintiff is his natural brother being the natural born son of Lokanath, he had been given in adoption to Lokanath’s brother, Radhanath and he had taken the plaintiff on adoption in the year 1974 to be more specific on 04.03.1974 by a registered deed to that effect. Thus it is said that the plaintiff was severed all his ties with the branch of Lokanath and as such is not entitled to any share from the ancestral property in the hands of Lokanath of which the defendant alone is the owner and has the right to possess. The defendant has also denied the plaint averments that the parties belong to the joint Hindu Mitakshara family, of which the defendant is the Karta, managing all the affairs of the joint family and dealing with the properties of the said joint family. 5. On the above rival pleadings, the trial Court has framed the following issues :- 1. Is the suit maintainable ? 2. Is the suit bad for misjoinder of parties and non-joinder of necessary parties. 3. Is there cause of action to bring the suit ? 4. Is the plaintiff entitled to half share in the suit property ? 5. Are the suit properties joint family properties of the parties ? 6. To what other relief, if any, the plaintiff is entitled to ? The most important issue out of the above is issue No.4. Perusal of the judgment reveals that the trial Court has rightly taken up that issue for decision at first. The issue although is with regard to the entitlement of the plaintiff as to his half share over the properties described in the schedule ‘B’ of the plaint as claimed by him, it embraces within the contentious question as regards the status of the plaintiff as the adopted son of Radhanath, who happens to be the brother of Lokanath, the natural father of the plaintiff which has remained as the main defence to non-suit the plaintiff. The answer to this issue would decide the fate of the suit for all purpose and the other issues stand as consequential, to be accordingly answered which of course has been so done by the trial Court. 6. The trial Court on analysis of the evidence let in by the parties in the backdrop of the rival pleadings has held that the case of adoption of the plaintiff by Radhanath as set up by the defendant has not been established. Its categorical finding is that the plaintiff is the son of Lokanath and has never left his natural father’s family severing all his tie therewith upon the adoption as asserted by the defendant. Its categorical finding is that the plaintiff is the son of Lokanath and has never left his natural father’s family severing all his tie therewith upon the adoption as asserted by the defendant. It is pertinent to mention here that though the plaintiff’s claim of ½ share over the property has not been accepted and instead, he has been allotted with 4/9th share to his sister namely, Naina Dei, the plaintiff has not filed any appeal, cross appeal or cross objection. The defendant in this appeal questions the allotment of share in favour of the plaintiff asserting that the plaintiff has nothing to get from the property having no such interest over the same, in view of his adoption by Raghunath. 7. Learned Counsel for the appellant at the outset fairly submitted that the challenge in this appeal is confined to the finding on that question of adoption as has been returned by the trial Court against the case projected by the defendant. He submitted that the trial Court has failed to appreciate the evidence with oral and documentary on record in their proper prospective in answering against the plaintiff’s adoption as asserted by the defendant to have been made in the year, 1974 by Radhanath, brother of their father Lokanath, which ought to have been held to have been proved by preponderance of probability. In course of argument, he placed the oral evidence as also has referred to the documents admitted in evidence and exhibited mainly on behalf of the defendant. He finally submitted that on the basis of the evidence on record, the said finding negating the case of adoption of the plaintiff as projected by the defendant in his written statement has to be reversed and it has to be recorded that the plaintiff is the adopted son of Radhanath and as such not entitled to the share over the property described in schedule ‘B’ to the extent of 4/9th as decreed. 8. Learned Counsel for the respondent submitted all in support of the findings of the trial Court. He submitted that the defendant’s case that the plaintiff is not the adopted son of Radhanath is based on sound appreciation of evidence in the backdrop of settled position of law holding the field. 9. 8. Learned Counsel for the respondent submitted all in support of the findings of the trial Court. He submitted that the defendant’s case that the plaintiff is not the adopted son of Radhanath is based on sound appreciation of evidence in the backdrop of settled position of law holding the field. 9. The settled position of law is that the burden of proof heavily lies on the person who sets up a case of adoption which makes a departure from the natural course and incidents of succession. The law is fairly settled that the evidence in support of an adoption must be sufficient enough to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural line of succession by alleging an adoption. The fact of adoption must be proved in the same way as any other fact, but where there is a lapse of long period between the date of adoption and the time when it is being questioned, every allowance for the absence of 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 direct evidence. 10. It has been held in the case of Rahasa Pandiari (Dead) by L.Rs. and others Vrs. Gokulananda Panda and others, (1987) 2 S.C.C. 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 schemers, who indulge in unscrupulous practice out of their lust for property. If there are suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one, who set up a case of adoption to dispel the same, beyond reasonable doubt. It has also been held in the case of Kishori Lal Vrs. Mt. Chaltibal, AIR 1959 S.C. 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 or cloud and so consistent and probable as to leave no occasion for doubting its truth. 11. This Court in cases of Prafulla Kumar Biswal Vrs. 11. This Court in cases of Prafulla Kumar Biswal Vrs. Sashi Beura and others, 1989 OLR (I) 425, Sulei Bewa & others vrs. Gurubari Rana, AIR 1971 Orissa 299 and Arjun Banchhar vrs. 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. vrs. 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. 12. A conspectus of the aforesaid authorities unequivocally lays down the rule that a person who claims title on the basis of adoption or who asserts that in view of the adoption, the party has no title over the subject matter of lis, must prove the adoption and it has to be established that the essential ceremony of giving and taking did take place. That burden however, shifts to the person who challenges the adoption to disprove the adoption when on account of long lapse of years, direct evidence of giving and taking has disappeared, but there remains the evidence of varieties of transactions in open life and conduct upon the footing of adoption, the acceptance as such for all these years and other events happening in normal course of life. But if direct evidence is available or it somehow even comes out during trial ;and shown, then the burden would not shift and the person who claims title on the basis of adoption must discharge that heavy burden. 13. It is the settled position of law that mere creation of document in support of prior adoption cannot be the substitute of the actual evidence of giving and taking with regard the adoption. Onus lies on the person who claims adoption to prove the same by leading clear, cogent and acceptable evidence with regard to the factum of giving and taking ceremony. This onus resting on that party is required to be discharged independently of any document. Onus lies on the person who claims adoption to prove the same by leading clear, cogent and acceptable evidence with regard to the factum of giving and taking ceremony. This onus resting on that party is required to be discharged independently of any document. In the absence of evidence of actual giving and taking of the child even the presumption arising out of a registered document, acknowledging the factum of adoption said to have taken place at any anterior date without detail recitals regarding giving and taking of the child is not enough to hold in favour of adoption. In fact, in the absence of such recital on the vital aspect of adoption and upon which it is founded in that document, the same in my considered view can neither be said to be a deed falling within the purview of Section 16 of the Hindu Adoption & Maintenance Act. What is acknowledged after is adoption and the adoption when is said to be by giving and taking, it has to find indicated clearly in the document. 14. In order to address the contention raised by the learned Counsel for the appellant so as to judge the sustainability of the finding of the trial Court on that score, it is now necessary to go through the evidence on record. In the present case, the defendant has proved the register (Ext. A) maintained under the provision of the Indian Registration Act and Rules which contains the entries relating to all those deeds registered in the said office in between the year 1972-74. The relevant entry relating to the deed in question is at page 270 to 272. The original deed is not forthcoming. Formal proof of a document which is the certified copy merely go to show that such a document had come into being on that day. The contents of the documents are not proved thereby nor the transaction which finds mention therein which has to be proved by such acceptable evidence in its support in evidencing the transaction. Moreover, this deed though has been nomenclature as deed of adoption but in the eye of law it is not so. In the deed the parties are so called adoptive father and the plaintiff whose age then was 26 years. Moreover, this deed though has been nomenclature as deed of adoption but in the eye of law it is not so. In the deed the parties are so called adoptive father and the plaintiff whose age then was 26 years. A bare reading of the same discloses that the so called adoptive father has declared therein to have adopted the plaintiff since his childhood days. That to again, it has been said therein that the plaintiff is to be treated as the adoptive son from the day of that document. On a careful reading of the recitals and accepting the same for a moment to be the true version of the executants, the document can neither be said to be a deed of adoption nor a deed of acknowledgment of adoption. There is no mention of date of adoption nor even the age of the plaintiff then. The plaintiff on the other hand has proved that this document has been cancelled by a deed executed to that effect in the year 1975. The oral evidence of D.W. 10 at this stage be looked into first as the evidence of D.Ws. 7, 8 and 9 are of no such direct impact in view of the fact that they have just deposed in a general manner that the plaintiff had been taken in adoption by Radhanath when he was two years old. D.W. 10 is none other than the defendant himself who claims to have seen his brother, the plaintiff being given in adoption. He has stated that Radhanath took the plaintiff in adoption when he was two years old. He also claims to have been very much present during the giving and taking ceremony which had been performed as per his evidence at “Brundabati Chandini” in presence of natural and adoptive parents as also the maternal uncle. Except this D.W. 10, none else has stated anything about the performance of the ceremony with the actual giving and taking. So the evidence as to the extent discussed dropping down from the lips of D.W. 10 is not receiving corroboration from the evidence of any other witness. Except this D.W. 10, none else has stated anything about the performance of the ceremony with the actual giving and taking. So the evidence as to the extent discussed dropping down from the lips of D.W. 10 is not receiving corroboration from the evidence of any other witness. He is now stating something which is wholly irreconcilable that no independent person was present during the said ceremony as if such ceremony had been done in a clandestine manner that the adoption instead of being made known to others which is actually the object behind the performance of ceremony to make it known to the outside world, was to keep as a secret affair amongst the natural and adoptive parents and maternal uncle of the parties. In fact, the performance of giving and taking ceremony as the condition for adoption is to give wide publicity and make it known to the whole world upon which it is binding so that the relations as well as the members of the community and all others would accept the vis-a-vis status of the parties accordingly and would deal with them in that manner. The evidence of D.W. 10 is thus found to be of no help and in my considered view, even accepting the same on its face value, the same does not help in proving his case of adoption as set up. The defendant is thus found to have failed to discharge the burden of proof heavily resting upon him in proving the case of adoption of the plaintiff by Radhanath in the year 1974. On the contrary, the High School admission register of the year 1959 showing the admission of the plaintiff in Class-VI under Ext. 3 goes to show that in the year 1959, Sadasiva has been described as the son of Lokanath. That apart the transfer certificate of the plaintiff from the U.P.School for his admission in the High School admitted in evidence and marked Ext. 2 also reflects the same position as regards the sonship of the plaintiff. The adoption when is said to have been made in the year 1974, the age of the plaintiff being computed as 52 in the year 1996, comes to 30 at that your of adoption. 2 also reflects the same position as regards the sonship of the plaintiff. The adoption when is said to have been made in the year 1974, the age of the plaintiff being computed as 52 in the year 1996, comes to 30 at that your of adoption. To choose a boy of that age to be taken on adoption normally ruins contrary to the common prevalent practice as also does not appeal to the common sense. This rather as a factor, improbabilises a case of adoption as projected by the defendant. The voter list of the year 1975 Ext. H though shows the father’s name of the plaintiff to be Radhanath, the record of rights prepared by the consolidation authority published on 1.4.1982 in so far as the property of village-Harirajpur is concerned which has been admitted in evidence and marked Ext. 7 finds mention; the name of Lokanath as the father of the plaintiff. 15. The law is well settled that the consolidation authority has the power to adjudicate the right, title and interest of the parties in respect of the land falling within the consolidation operation as per the notification under the Orissa Consolidation and Prevention of Fragmentation of Land Act, 1972. In deciding the right, title and interest, the power also remains to decide the status of the party having direct nexus with the claim/counter claim of right, title and interest over the property. In view of the said settled position, heavy weight gets attached to such reflection of the father’s name of the plaintiff in the ROR finally published in the consolidation operation which has not been challenged since its publication even as of now. Two more consolidation RORs which are Exts. 10 and 12 also reveal the same state of affair as regards the sonship of the plaintiff. The voter lists of the year 1993, 1973 and 1988 as Exts. 15, 16 and 17 respectively reflect the name of the father of the plaintiff as Lokanath. Ext. 1 which though has been nomenclatured as deed of adoption does not appear to be that. When its recitals are given a careful reading at one time it has been stated that the adoption of the plaintiff was since the childhood whereas at another stage, it has been stated that by executing the deed, the adoption is acknowledged from that day onwards. When its recitals are given a careful reading at one time it has been stated that the adoption of the plaintiff was since the childhood whereas at another stage, it has been stated that by executing the deed, the adoption is acknowledged from that day onwards. The deed in question does not even recite the month and year of adoption as also about the performance of giving and taking ceremony. Furthermore, the said deed has been executed on 7.3.1974 and the defendant’s specific case is that the plaintiff was adopted in the year 1974. Interestingly, the very execution of the said deed i.e. Radhanath on 22.3.1975 has executed another deed cancelling the earlier deed of adoption as is so said (Ext. 4) and that is also within a short span of time. The trial court has gone for an elaborate discussion of the oral and documentary evidence on record at page-5 to 7 of the judgment. On going through the same and in view of the foregoing discussion of evidence on record being appreciated in the touch stone of the settled position of law, this Court finds no such fault with the approach and appreciation of evidence of the trial Court in recording a finding against the adoption. For all the aforesaid, this Court feels it quite comfortable to conclude that the defendant has not proved the case of adoption of the plaintiff by Radhanath. In view of that, the finding of the trial Court on that score receives the seal of affirmation. 16. With the above finding, this Court further concludes that the finding of the trial Court that the properties are the joint family properties of the parties and that one Naina Dei who is the sister of the plaintiff and defendant has also the share over the same upon notional partition being deemed to have taken place prior to the death of Lokanath is found to be in order. This Court therefore holds that the trial court has rightly passed the preliminary decree allotting 1/9th to Naina Dei, the sister of plaintiff and defendant and 4/9th share to plaintiff and defendant each. 17. For the aforesaid discussion and reasons, the judgment and preliminary decree passed by the learned Civil Judge (Sr.Division), Banki in Title Suit No.5 of 1996 are hereby confirmed. The appeal thus fails. The parties are directed to bear their respective cost throughout. Appeal fails.