Orissa High Court
Grama Devati Satabhauni Thakurani And ... vs Ranga Bewa And Others on 18 December, 2017
Equivalent citations: AIR 2018 (NOC) 466 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.291 of 1994
From the judgment and decree dated 10.8.1994 and 27.8.1994 respectively
passed by Sri S.Naik, learned Civil Judge (Senior Division), Jagatsinghpur
in Title Appeal No.16 of 1987 confirming the judgment and decree dated
4.4.1987and 18.4.1987 passed by Sri B.S. Mohapatra, learned Munsif, Jagatsinghpur in Title Suit No.123 of 1980.
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Grama Devati, Satabhauni
Thakurani & others .... Appellants
Versus
Ranga Bewa & others .... Respondents
For Appellants ... Mr. S.R Pattnaik, Adv.,
Mr. Imran Khan, Adv.
For Respondents ... Mr. Sushant Ku. Dash, Adv.,
Ms. Arunima Das, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 08.12.2017 : Date of judgment: 18.12.2017
Dr. A.K.Rath, J Defendant nos.1 to 6 are the appellants against a
confirming judgment.
2. Fakir Charan Swain, predecessor-in-interest of
respondents 1(a) to 1(h) as plaintiffs, instituted the suit for declaration of right, title and interest, confirmation of possession and in the alternative for recovery of possession, if he has been dispossessed during course of trial and permanent injunction. Case of the plaintiff was that the suit schedule land originally belonged to one Muli Swain. After his death, defendant nos.8, 9 and 10 were in 2 possession of the suit land. They sold the suit land to the plaintiff by means of a registered sale deed dated 25.4.1979, vide Ext.1. Defendant nos.1 to 6 claimed to have purchased the suit land from the defendant no.7, who proclaimed to be the adopted son of Muli Swain. Defendant no.7 executed the sale deed by impersonating himself to be the adopted son of Muli Swain. Therefore, defendants 2 to 6 have no right, title and interest over the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
3. Defendants 1 to 6 filed a joint written statement denying the assertions made in the plaint. It was pleaded that Muli Swain and his wife Badani adopted defendant no.7 when he was only two years old. Since the day of adoption, defendant no.7 was residing in the house of Muli Swain. In the school records and voters list, defendant no.7 has been described as son of Muli Swain. Muli Swain also executed a registered deed acknowledging the adoption. Defendant nos.8 to 10 filed a joint written statement supporting the stand of the plaintiff.
4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that Muli Swain had not adopted defendant no.7. The sale deed executed by defendant no.7 is inconsequential in nature. Defendant no.8 is the legally married wife of Muli Swain and defendant nos.9 and 10 are their sons. The sale deed Ext.1 was executed by defendant no.8 and defendant nos.9 and 10, who were minors. It is voidable at the option of the minors. Minors did not assail the sale deed. Held so, it decreed the suit. Unsuccessful defendants filed Title 3 Appeal No.16 of 1987 in the court of the learned Civil Judge (Senior Division), Jagatsinghpur, which was eventually dismissed.
5. The second appeal was admitted on 30.10.1995 on the following substantial question of law.
"The appeal would be heard on the question of adoption."
6. Heard Mr. S.R. Pattnaik, learned counsel along with Mr. Imran Khan, learned counsel for the appellants and Mr. Sushant Kumar Dash along with Ms. Arunima Das, learned counsel for the respondents.
7. Mr.Pattnaik, learned counsel for the appellants submitted that Badani Dei was the first wife of Muli Swain. They had no issue. They adopted defendant no.7 in the year 1933 when he was two years. Defendant no.7 stayed in the house of Muli. After the death of Badani, Muli remarried to Chanchali-defendant no.8. Defendant nos.9 and 10 are the sons of Muli through second wife. To avoid future complicacy, Muli executed a deed acknowledging adoption in the year 1954, vide Ext.A. In the school leaving certificate, consolidation ROR and voter list, defendant no.7 has been described as son of Muli Swain. It is a case of ancient adoption. The factum of giving and taking ceremony was not necessary. The registered deed of adoption vide Ext.A coupled with school leaving certificate, voter list, consolidation ROR (not final) vide Exts.A,B,D,F and G would unerringly show that defendant no.7 is the adopted son of Muli Swain. Learned trial court misconstrued and misapplied the decision of this Court in the case of Bauri Dei and others v. Dasarathi Sahu and others, 1974 (1) CWR 403, wherein it was held that the creation of documents is not a substitute for giving and taking, which must be proved independently de hors any document. The omission of the day or date of adoption is vital and the deed of acknowledgment of 4 adoption loses its significance. In the instant case, the deed was executed on 14.4.1954 acknowledging the adoption. The acknowledgment of adoption has to be given full weight. The courts below committed grave error in disbelieving the materials available on record and held that giving and taking ceremony was not held. He relied on the decisions of this Court in the case of Agani Bewa v. Bhaskar Mallik, Vol.III (1961) OJD 196 and Balinki Padhano and another v. Gopakrishna Padhano and others, AIR 1964 Orissa 117 and Agani Bewa (supra).
8. Per contra Mr. Dash, learned counsel for the respondents submitted that in the deed of acknowledgment of adoption, vide Ext.A, the name of defendant no.7 has not been mentioned. No presumption under Sec.16 of the Hindu Adoption and Maintenance Act is available in respect of a pre-Act adoption. The deed acknowledging adoption must satisfy the requirements under law. The deed must be signed by both the person giving and the person taking the child in adoption. The same has not been done. Defendant no.7 being the sister's son of Muli, adoption is invalid. The evidence of giving and taking ceremony is scanty. Entry in the voter list is not sufficient to prove the adoption. Documents are not enough to hold that Arjuna was adopted by Muli, when he failed to prove giving and taking ceremony. Arjuna was not the adopted son of Muli. He has no right to alienate the suit property of Muli in favour of defendant nos.1 to 6. The same does not create any title in their favour. Chanchala is the legally married wife of Muli. Defendants 8 to 9 are the sons of Muli and Chanchala. For legal necessity, they sold the land to the plaintiff. Defendants 1 to 7 being the strangers, they cannot challenge the sale deed. Defendant nos.8 and 9 were minors at the time of execution of the sale deed. They are parties to the suit.
5Neither they challenged the sale deed nor filed any counter claim. He cited the decisions of this Court in the case of Priyanath Mohanty v. Indumati Bewa, AIR 1971 Orissa 211, Ranjit Sahu v. Nilambar Sahu and another, AIR 1978 Orissa 48, and Doctor Nahak v. Bhika Nahak, 77 (1994) CLT 523.
9. 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.
10. It is not a case of ancient adoption. D.W.1 was a witness to the giving and taking ceremony. Defendant no.7 is the sister's son of Muli. The deed acknowledging adoption, vide Ext.A, reveals that when defendant no.7 was two years old, he was adopted. The day and date of adoption has not been mentioned. Ext.A was registered on 14.5.1954. Muli was 29 years when alleged adoption took place. As held by this Court in the case of Bauri Dei (supra), creation of documents is no substitute for the fact of giving and taking which must be proved independently de hors any document. Omission of the day or date of adoption is very vital and the deed of acknowledgment of adoption loses all its significances.
11. In Agani Bewa (supra), this Court held that where a deed is executed by a person stating that a valid adoption had already taken place, such an admission should be given its full weight, in the absence of evidence showing that the admission was untrue or was made by mistake or fraud or other vitiation circumstances and the fact of adoption as well as is validity must be taken to be established.
612. In Arakhita Swain vs. Kandhuni Swain, AIR 1983 Ori.199, this Court held that where the registered deed recording an adoption was not signed by the person giving the child in adoption, the presumption under Sec.16 as to there being an adoption in compliance with the provisions of the Act could not be raised as one of the essential condition was wanting.
13. In Priyanath (supra) this Court held that sister's son cannot be adopted, unless a custom in support of such adoption is pleaded and established. The bar in Hindu Law against adoption of a sister's son is on the basis that the sister could not have been married to the brother and thus the brother cannot adopt the sister's son. A fiction in law is created in the event of adoption for the adopted son's mother being the wife of the adoptive father. The principle of factum valet also does not apply in the case of adoption.
14. Defendant no.7 is the sister's son of Muli Swain. This is a pre-Act adoption. Article 477 of Mulla's Hindu Law (22nd edition) provides that the adopted son must not be a boy, whose mother the adoptive father could not have legally married, unless it is sanctioned by the custom. There is no pleading or evidence with regard to custom.
15. In Doctor Nahak (supra), this Court held that a person would not normally adopt when he expects a son would be borne to him. This is a strong circumstance to disbelieve adoption.
16. Judging the case from any angle, this Court is of unhesitant opinion that defendant no.7 is not the adopted son of Muli Swain. Defendant no.7 is a stranger. Alienation by defendant no.7 in favour of defendants 1 to 6 cannot create any title in their favour. Defendants 1 to 6 are strangers. A stranger cannot challenge any transaction on legal necessity, unless he or she has interest in 7 the property. Further, defendants 8 and 9 are parties to the suit. They have neither challenged the sale deed nor filed any counter claim. The substantial question of law is answered accordingly.
17. A priori, the appeal fails and is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 18th December, 2017/Pradeep