Orissa High Court
Jogendra Majhi (Dead) After Him Smt. ... vs Jahaja Baliar Singh And Anr. on 17 April, 2007
Equivalent citations: AIR2007ORI142, 2007(II)OLR47, AIR 2007 ORISSA 142, 2007 A I H C (NOC) 570 (ORI), (2007) 58 ALLINDCAS 691 (ORI), 2007 (58) ALLINDCAS 691, (2007) 2 ORISSA LR 47
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This cross-appeal by the defendants is against the findings on issue Nos. 9 and 10 recorded by the learned Subordinate Judge, Nayagarh in O.S. No. 13 of 1978-1.
2. Respondent Nos. 1 and 2 filed the aforesaid suit to declare that Defendant No. 4-Jogendra Kumar Guru is not the legally adopted son of Balabhadra Majhi; grant a preliminary decree for partition allotting 1 /5th share in the suit schedule properties and restrain defendant no 4 and his father-guardian, Krushna Chandra Guru, from entering into the suit land.
3. Plaintiffs' case in brief was that Balabhadra Majhi, who was the owner of the suit property had two wives, namely, Sita and Godi Bewa. Through Sita, Balabhadra had only one daughter, named, Balika, (defendant No. 2) and through Godi, he had three daughters, namely, Jahaja (plaintiff No. 1), Niasi (defendant No. 3) and Kausalya (plaintiff No. 2). Balabhadra died on 10.11.1975 leaving behind his widow-Godi, and the daughters, named above. Defendant No. 4 is the natural son of Balika and her husband Krushna Ch. Guru. According to the plaintiffs, defendant Nos. 2 and 4 started creating trouble over the suit land proclaiming that defendant No. 4-Jogendra is the adopted son of Balabhadra Majhi although there was never such adoption. They alleged that the documents, such as the deed of acknowledgment of adoption, the deed of relinquishment relied by the defendants 2 & 4 and forged and fabricated ones. So, in order to clear the doubt and settle the matter once for all, they filed the suit seeking the above noted reliefs.
4. Defendant Nos. 1 and 3 filed separate written statement denying the claim of adoption of Jogendra by Balabhadra and the execution of any deed of acknowledgement of adoption or any deed of relinquishment by the daughters of Balabhadra in favour of defendant No. 4 Jogendra. They pleaded inter alia that Krushna Chandra Guru being the eldest son-in-law living close to the house of Balabhadra was in a dominating position and in order to grab the suit property, he got the alleged deed of acknowledgment of adoption and deed of relinquishment signed and executed by the parties by practicing fraud at the time of execution of the gift deed in favour of defendant No. 1. Defendants 2 & 4 in their written statement denied the pleadings of the plaintiffs and pleaded inter alia that Balabhadra Majhi adopted defendant No. 4 after observing all the legal formalities and ceremony and that defendant No. 4 thereafter lived with Balabhadra and his wife as their son and on the death of Balabhadra performed the obsequies ceremony as his son. They pleaded that there was custom and precedent in their family and community permitting adoption of a daughter's son. They denied the allegation of fraud, undue influence etc. and challenged the maintainability of the suit on the ground that there was no cause of action, that proper Court fees on the prayer was not paid and all the properties of the family were not brought to the hotchpotch. From the pleadings of the parties learned trial Court framed the following issues:
(1) Is there any cause of action ?
(2) Is the suit maintainable ?
(3) Has proper Court fees been paid ?
(4) Is the suit barred by limitation acquisance, and estopped ?
(5) Have all the properties been brought share in the suit properties ? (6) Is the plaintiffs each entitled to 1 /5th share in the suit properties ? (7) Was the? deed of relinquishment obtained by fraud, and by exercise by undue inference ? (8) Is the deed of relinquishment hit by Section-6 of T.P. Act. ?
(9) Is the defendant No. 4 the legally adopted son of Balabhadra Majhi ? (10) Was the deed of adoption executed under fraud and undue inference ? (11) To what reliefs, if any, are the plaintiffs entitled ?
5. 11 witnesses were examined by the plaintiffs and documents, marked as Exts. 1 to 11, were produced. Defendant Nos. 2 to 4 examined 12 witnesses and produced some documents, which were marked as Exts. A to Q. Learned trial Judge after considering these evidence came to hold that Jogendra was the adopted son of Balabhadra Majhi, the deed or acknowledgment of adoption was not tainted with fraud or undue influence. He also held that despite Ext. D being a genuine document, there was no relinquishment of right and the so-called family' arrangement was not acceptable, that all the properties of the family have been brought to the hotchpotch that the suit is not barred by limitation and is maintainable. Consequently he granted a decree for partition allotting 1 /18th share to each of the plaintiffs and defendants 2 & 3 and 7/18th share each to the defendant Nos. 1 & 4. Not being satisfied with the said judgment and decree and the shares allotted to the respective parties defendant No. 4 filed this appeal. The respondent Nos. 1 to 3, who were plaintiffs and defendant No. 1, filed this cross appeal challenging the findings on issue Nos. 9 and 10 relating to adoption. In the mean time, the appeal filed by defendant No. 4 Jogendra has already been dismissed. So, only the cross appeal is there wherein the point involved is the correctness of the finding recorded by the learned trial Judge on issue, of adoption of Jogendra.
6. Learned Counsel appearing for the cross-objector submits that the findings of learned trial Court on issue Nos. 9 & 10 are contrary to the materials on record and the principles of adoption under the Hindu Law. He states that in a Hindu adoption, the ceremony of adoption particularly, the giving and taking of the child is essential and observance of such ceremony must be established by clear evidence, but in the present case there was no reliable evidence from the side of the defendants 2 and 4 to prove observance of any such ceremony. He points out that the witnesses examined by the defendants are neither relatives nor neighbours of the parties and their evidence regarding the date/day of adoption also differ. He further argues that the deed of acknowledgment of adoption (Ext. C) and the School Admission Register ( Ext. F) were not admissible at all as Ext. C has not been signed or executed by the parents giving in adoption and the entry in Ext. F is a manipulated one. Learned Counsel further contends that as against unreliable evidence of the defendants, the plaintiffs examined the relatives, neighbours, family members, servant and family barber, who clearly deposed that there was never any adoption as alleged and the certificates issued by various Schools describe defendant No. 4 as the son of Krushna Ch. Guru, the natural father and not that of the adoptive father Balabhadra. According to the learned Counsel for the cross objector, the evidence on record clearly belie the plea of adoption of D.W. 12 by Balabhadra.
7. No one appears for the substituted appellants, but it appears from the appeal memo that the appellants support the findings of the learned trial Court on the issue of adoption and rely on documents like deed of acknowledgement of adoption (Ext. C), deed of relinquishment executed by the daughters of Balabhadra (Ext. D) and the entry in the School Admission Register (Ext. F).
8. At the out set, it would be proper to note the settled position of law with regard to the question of adoption. As has been observed in the case of Kishori Lal v. Mt. Chaltibai ; Diwakar Rao v. Chandanlal Rao AIR 1916 P.C. 81; Padmala v. Fakira Debya 1931 PC 84; Lakshman Singh Kothari v. Smt. Rup Kanwar and Urmila v. H.K. Mohanta , since 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 suspicions of fraud and so consistent and probable as to leave no occasion for doubting the truth.
Under the Hindu Law 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 to secure due publicity. To achieve this object it is essential to have a formal ceremony. Although no particular form of ceremony has been prescribed under the law, but there is sufficient indication in the statute as well as case laws that the natural parent should hand over the adoptive boy and the adoptive parent shall receive him. The nature of ceremony may vary depending upon the circumstances of each case, but there should essentially be a ceremony including the act of giving and taking of the child. In essence, all that the law requires for valid adoption is that the natural father shall be asked by the adoptive parents to give his son in adoption and that the boy shall be handed over and taken for this purpose.
Keeping in mind this legal principle we have to re-examine the evidence available on record and find out whether the approach and conclusion of learned trial Court is acceptable.
9. Defendant No. 4 ( D.W. 12), who claims to be the adopted son and D.W. 1, who is the natural father of D.W. 12, supported the plea of adoption., D.W. 1 specifically stated that Balabhadra had four daughters through his two wives, but Mad no son and because he had reached the ripe age of 74/75 years and had no hope of getting a son, he adopted defendant No. 4, the son of his eldest daughter, Balika, who was living with her husband only 200 yards away from his house. According to D.W. 1, this adoption took place on the 1st birth day (Swanakshetra day) of defendant No. 4 in presence of several villagers and family members. He also stated that later on a deed of acknowledgement for adoption, Ext. C, was executed by Balabhadra and his wife Godi, wherein the fact of adoption is acknowledged by them. Defendant No. 4 (D.W. 12) also reiterated the statement of D.W.1. Witnesses D.W. 2, 3 & 10 claimed that they were present in the ceremony of adoption. According to them, this adoption took place on the Swanakshetra day of Jogendra. As against such evidence, the plaintiffs examined Godi Bewa, the 2nd wife of Balabhadra as P. W. 11. This lady stated in clear terms that she and her husband Balabhadra never adopted Jogendra and there was never any adoption ceremony as alleged by the defendants. Niasa and Kausatya two of the daughters of Balabhadra also denied the alleged adoption and performance of any ceremony of adoption. P.W. 4, who is a nephew, P.W.6, who is a relative and P.W.5, who is a neighbour of Balabhadra also stoutly, denied that Balabhadra and his wife ever adopted Jogendra. They said that there was never any adoption ceremony at the house of Balabhadra. The family barber P.W.3 also stated that there was never any adoption as alleged. These witnesses are family members, relatives and persons close to the family of Balabhadra, who had scope of knowing about the affairs of the family of Balabhadra. On the other hand, D.Ws 1 & 12 are interested persons and the witnesses examined by them are neither family members nor relatives of Balabhadra and they had no explanation how they were intimately associated with Balabhadra or had special knowledge about the affairs going on in his family. So the evidence of the P.Ws were more probable and reliable.
10. Defendants 2 & 4 relied on the entry available in the admission registers of Lathipada U.P. School, wherein the names of both Krushna Chandra Guru and Balabhadra Majhi have been noted in the column meant for the name of the father of the student. They also relied on the deed of acknowledgment of adoption, Ext. C and deed of relinquishment, Ext. D allegedly executed by the daughters of Balabhadra. The plaintiffs seriously disputed the genuineness of the entry made in the School Admission Register, Ext. F. It was canvassed that the School Admission Register simply contains a column for the name of the father of student and so there was no scope for noting the names of both the natural father and the adoptive father in that column. P.W. 1, who was the Headmaster of Lathipada M.E. School also stated that in the concerned column of the Admission Register only the name of the father of the student is to be noted and there is no scope for noting the names of two persons, one as natural father and the other as adoptive father. It is available in the evidence that D.W. 1 was working as a teacher in the aforesaid M.E. School at the relevant point of time. So, chances of some manipulation in the entry as alleged cannot be ruled out. Further more, some school records and certificates of Defendant No. 4 were produced and proved by the plaintiffs. Ext. 1 is the Admission Register of the Lathipada M.E. School, Ext. 2 is the counter foil of School leaving certificate of Jogendra from that school. Ext. 3 is the Admission Register of Lathipada High School. Ext. 4 is the School leaving certificate of Jogendra from Nayagarh High School. Ext. 5 is the counter foil of the School-leaving Certificate available in the book of Nayagarh High School. In all those documents, D.W. 1 Krushna Chandra Guru has been described as the father of defendant No. 4 Jogendra. It is worthwhile to note that these documents are subsequent to the entry, Ext. F. If actually Jogendra was adopted by Balabhadra and was admitted into the School initially by Balabhadra and if he continued as adopted son of Balabhadra, there was no scope for noting of the name of D.W. 1 as the father of Jogendra in the subsequent school records and certificates.
11. It was the claim of the plaintiffs that Jogendra was adopted his first birthday and that ceremony of giving and taking took place on that day. But D.W. 12 himself stated in his evidence that on the date of adoption he was 2 1/2 years old. D.Ws 2, 3 & 10, no doubt stated that the alleged adoption took place on the first birth day of Jogendra, but the years and the period described by them do not agree with the first birth day of Jogendra. Then there was also no clear evidence from the D. Ws as to what kind of ceremony actually took place and whether there was any feast in the ceremony. Some discrepancies are also available about giving and taking of the child. On the contrary, Godi Bewa, who is supposed to be the adoptive mother and P. Ws 9 & 10, who are the daughters of Balabhadra have denied about any adoption or ceremony of adoption.
12. It is admitted by D.Ws 1 & 12 that Balika and D.W. 1 had only one child, defendant No. 4, at the time of alleged adoption. Ordinarily the only son is neither given in nor taken in adoption. Although law does not prohibit giving of only son in adoption, such instances are rare and cogent explanation must be offered as to why the only son was given in adoption. The only explanation available from the side of the defendant Nos. 2 & 4 is that Balabhadra was not pulling on well with agnatic relations and, therefore, he wanted to adopt the son of his own daughter who is staying nearby. On this score learned Counsel for the cross-objector points out that in view of the bar provided in paragraph 480 of Principles of Hindu Law (Mulla) a daughter's son cannot be taken in adoption. In support of his contention he also relied on the case of Bansidhar Panda v. Aparti Charan Panda and Ors. 2000 (II) OLR 166 wherein it is observed that daughter's son, sister's son, mother's sister's son come under the "Virudha Sambandha" and adoption of such child is prohibited. This observation was made taking note of the contents of paragraph 480 of Mulla on Principles of Hindu Law as well as the ratios laid down in the case of Abhiraj Kuer v. Debendra Singh , Sangannagouda minor by guardian natural father Shivasangangouda v. Kalkangouda and Anr. AIR 1960 Mysore 147; Goswaml Shree Vallabhalalji v. Goswami Shree Mahalaxmi Bahuji Maharaj and Anr. . Paragraph 480 of Mulla on Principles of Hindu Law describes the persons, who may be taken lawfully in adoption. According to this provision amongst others, a daughter's son, sister's son, mother's sister's son cannot be adopted, as they come under "Virudha Sambandha". It is worthwhile to note that the above noted decisions, relate' to the adoptions which took place prior to the Hindu Adoptions and Maintenance Act, 1956 which came into force on 21st December, 1956. In this Act of 1956, the above noted principle of "Virudha Sambandha" noted in paragraph 480 (supra) has been given a go bye and persons, who may be adopted, has been described in Section 10 of the said Act, which reads as follows:
Persons who may be adopted.- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) 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.
Section 4 of the aforesaid Act clearly provides the over riding effect of this Act over the provisions, which were prevalent earlier. Section 4 reads as follows:
4. Over-riding effect of Act- Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
In view of Section 4, Section 10 over-ride the provisions of paragraph 480 of Hindu Law and the provisions of Section 10 of the Act now guide the eligibility of a person for adoption. It is pertinent to note that the alleged adoption of Jogendra was some time in the year 1963 by which time Hindu Adoptions and Maintenance Act had come into force and therefore, the contents of paragraph 480 of Mulla Principles of Hindu Law and the ratios laid down in the above noted cases will not apply to the present case. Be that as it may fact remains that defendant No. 4 was the only child of Balika and D.W. 1 at the time of alleged adoption, which is also a circumstance to doubt the alleged adoption of defendant No. 4 by Balabhadra.
13. For all the above said reasons, the alleged adoption of Jogendra by Balabhadra and his wife cannot be said to have been proved to the extent that it can be accepted as unimpeachable in nature and free from any suspicion, fraud or collusion. Learned trial Judge, somehow, did not seriously take note of these aspects and based his findings on superficial circumstance. Therefore, his conclusion that adoption of Jogendra by Balabhadra was proved from the evidence on record is not sustainable. The findings on issue Nos. 9 & 10 given by learned trial Court are accordingly set aside and the cross objection is allowed. No costs.