Orissa High Court
Smt. Urmila Dei And Anr. vs Hemanta Kumar Mohanta Alias Hemanta ... on 10 May, 1993
Equivalent citations: AIR1993ORI213, I(1994)DMC443, 1993(II)OLR149, AIR 1993 ORISSA 213, (1993) 2 ORISSA LR 149, 1993 (2) ORISSALR 143, (1994) 1 DMC 443, (1993) 2 HINDULR 367, (1993) MARRILJ 552, (1993) MATLR 349, (1993) 2 CIVLJ 720
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Defendants 11 and 12 have preferred this appeal against the judgment of the learned single Judge in First Appeal No. 236 of 1978 in a suit for partition.
2, The mother of defendants 11 and 12, Sashi Bewa, had filed the suit for partition claiming one-fifth share in item Nos. I to VII of Schedule-B excluding Schedule-C and half share in item No. II of Schedule-D and item No. III of Schedule-E. The plaintiff's case, in brief, is that the common ancestor Hadiram had six sons of whom Pruthunath died unmarried. The other sons are Baidyanath, Sankar, Manilal, Dussasan and Bholanath. Baidyanath died in the year 1975 leaving behind 4 sons through his first wife who are defendants 1 to 4 and a daughter who is defendant No. 7 and his second wife Purna is defendant No. 6 and through his second wife, he had a son who is defendant No. 5. Sankar died in the year 1954 leaving his widow Shasi, the plaintiff and they had two daughters who are defendants 11 and 12. The other sons of Hadiram are defendants 8, 9 and 10. The further case of the plaintiff is that sons of Hadiram lived jointly and had extensive ancestral properties and out of the surplus of the said joint family property, several other properties were acquired which are described in Schedule-B of the plaint. Even after the death of Hadiram, item Nos. I, II, III and IV of Schedule-B were jointly recorded in the names of his sons. Baidyanath who was acting as Karta of the joint family purchased item No. V of Schedule-B in his own name though it was purchased out of the joint family funds and, therefore, acquired joint family character. Item Nos. VI and VII of Schedule-B were the exchanged properties of the Joint Family in lieu of joint family lands described in Schedule-C and these two items of properties though stand recorded in the name of Baidyanath but are the joint family properties. It is the further case that Sankar out of his own income had acquired item No. I of Schedule-D which he possessed as his self-acquisition and Sankar with Bholanath (defendant No. 9) had together acquired item No. II of Schedule-D which they owned as their exclusive property. On account of increase in the number of family members, Baidyanath and his brothers have been living separately and also are possessing different parcels of land for the sake of convenience even though there has been no partition. Plaintiff was also similarly possessing some lands in Schedule-B, but defendant No. 4 has been creating trouble over the plaintiff's possession and, therefore, the plaintiff filed the suit for partition claiming the shares as already indicated,
3. Defendant No. 4 contested the suit by filing a written statement and alleging therein that he was taken in adoption by Sankar and the plaintiff and, therefore, he has a share in Sankar's interest. It was his further case that after the partition between the brothers of Baidyanath, Sankar and Bholanath had jointly acquired some properties which they also partitioned among themselves. The initial partition in the family took place 40 years back and even on death of Pruthunath his share also was again partitioned amongst the five brothers. The allegation that the plaintiff was possessing some land for convenience was denied. It was also stated that the share claimed by the plaintiff is wrong and the plaintiff would be entitled to half share in the interest of Sankar and the other half would go to defendant No. 4. It was also urged that on death of Hadiram all his sons having separated both in mess and property forty years back and having possessed their respective shares of property, a fresh suit for partition will not lie. So far as the adoption of defendant No. 4 is concerned, it was pleaded that Sankar having no son adopted defendant No. 4 when he was only 21 days' old and this adoption ceremony took place in the presence of local gentlemen and relations and since then defendant No, 4 has been residing with Sankar and after his death has inherited his property and further in the partition amongst the sons of Baidyanath, no share has been given to defendant No. 4 in view of his adoption by Sankar.
4. Defendant No. 8 filed a separate written statement supporting the stand of the plaintiff.
5. Defendants 1, 2, 3 and 10 also filed a joint written statement supporting the stand of defendant No. 4.
6. On these pleadings, the learned trial Judge framed 7 issues of which issue No. 3 is the most important issue, namely whether defendant No. 4 had been taken in adoption by Sankar ? On consideration of the evidence on record, the learned trial Judge came to the conclusion that defendant No. 4 was not adopted by the plaintiff and Sankar. On issue No. 2, he came to hold that there was no partition amongst Baidyanath and his brothers as alleged by the defendants. Issues Nos. 1, 4 and 6 were not pressed. On issues Nos. 6 and 7, he held that the plaintiff along with her daughters (defendants 11 and 12) are entitled to one-fifth share which is the share of Sankar in the properties mentioned in Schedule-B of the plaint; defendants 1 to 7 together are entitled to one-fifth share; defendants 8 and 10 are entitled to one-fifth share each and defendants 9(a) to 9(f) together are entitled to one-fifth share in the Schedule-B properties. It was further held that the plaintiff is entitled to half share in item No. II of Schedule-D and item No. III of Schedule-E of the plaint and the other half of item No. II of Schedule-D shall go to defendant Nos. 9(a) to 9(f) and the entire item No. 1 of Schedule-D is the self-acquisition of Sankar and, therefore, the plaintiff would be entitled to the same and lastly, half of item No. III of Schedule-E shall go to Bholanath's branch. On these findings, the learned trial Judge having decreed the plaintiff's suit, defendant No. 4 carried the matter in appeal which was registered as First Appeal No. 236 of 1978.
7. In the First Appeal, defendant No. 4 did not challenge any of the findings of the trial Judge excepting the finding on the question of adoption and it was urged that the learned trial Judge illegally came to hold that defendant No. 4 had not been taken in adoption by Sankar and his wife, the plaintiff. On consideration of the materials placed before him and on re-appreciating the evidence, the learned single Judge disagreed with the learned trial Judge and held that defendant No. 4 was taken in adoption by Sankar and plaintiff and would, therefore, be entitled to a share in Sankar's interest. The appeal having been allowed by the learned single Judge with the aforesaid finding, the present A.H.O. has been preferred by defendants 11 and 12 who are the daughters of the plaintiff and plaintiff having died, there being no other legal heir, they represent the plaintiff.
8. The sole question for consideration in this A.H.O., therefore, is whether the conclusion of the learned single Judge that defendant No. 4 had been taken in adoption by Sankar and plaintiff can at all be sustained on the materials on record. Mr. Sinha, the learned counsel for the appellants contends that in an appeal under the Letters Patent against the judgment of the learned single Judge, the Division Bench is entitled to go into the question of fact and law and would re-appreciate the evidence and the fetter of a second appellate court will not apply. There is no dispute with the aforesaid proposition in view of the decision of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kama, AIR 1981 SC 1786, as well as the Bench decisions of this Court in Gopal Charan Mohanty v. Srimati Adarmani Mohanty, (1988) 66 C.L.T., 625 and Bishnu Priya Dei v. Brusabhanu Mohapatra, 1976 (1) C.W.R., 73 : (AIR 1976 Orissa 163). It has been held by the Division Bench of this Court in Gopal Charan Mohanty's case, ((1988) 66 C.L.T., 625), that the Division Bench in an appeal under the Letters Patent can review the findings of fact and law arising out of the judgment of a learned single Judge in a First Appeal and both questions of fact and law raised are to be examined. In coming to the aforesaid conclusion, the Division Bench relied upon the decision of the Supreme Court in the case of Alapati Kasi Viswanatham v. A. Simarama Krishnayya, Civil Appeal No. 232/61 disposed of on 11-1-1963. In view of the aforesaid position of law, it would be necessary for us to examine the evidence on record to find out whether the conclusion of the learned single Judge can at all be sustained.
9. Before examining the evidence, it would be appropriate for us to notice the position of law with regard to the question of adoption. The leading case on adoption is the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 Supreme Court 504. Relying upon the two decisions of the Privy Council in Diwakar Rao v. Chandanlal Rao, AIR 1916 PC 81 and Padmala v. Fakira Debya, AIR 1931 PC 84, the Apex Court in the aforesaid case held :--
"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 suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. ......"
In the case of Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378, their Lordships of the Supreme Court held at Page 1381 :---
"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 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 hand 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. ........"
(quoted from the headnote) In Mayna's Hindu Law (11th Edn. at p. 237), it has been stated :
"The giving and receiving arc absolutely necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another. But the Hindu Law docs not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose."
10. Bearing in mind the aforesaid essential features of adoption, we would now examine the evidence in the case. The learned single Judge relying upon the evidence of D.Ws. 3 and 5 came to hold that there was a giving and taking ceremony and the natural father of defendant No. 4 gave him to Sankar and his wife when defendant No. 4 was only 21 days' old and his mother had died. Though D.W. 3 in his evidence-in-chief has stated that he was present at the time of Sankar taking defendant No. 4 in adoption and Baidyanath giving the baby (defendant No. 4) to Sankar and said he better adopted the baby as his son and Sankar accepted the baby and gave the baby to his wife, but in cross-examination candidly admitted that he came away from Baidyanath's house after hearing the discussion between Baidyanath and Sankar where Baidyanath said Sankar that there is none in the house to rear the child (defendant No. 4) and Sankar should take charge of the baby and Sankar and his wife agreed to rear up the child until he grew up in age. This being his positive evidence, it is difficult for us to accept his evidence-in-chief that he has witnessed the so-called giving and taking ceremony and that part of his evidence must be held to be wholly untrue. The learned single Judge committed gross error in relying upon his statement to establish the factum of giving and taking. Then again, the very same witness has slated in his evidence that adoption ceremony is an auspicious occasion and such ceremony cannot take place during Sudhi ceremony in the family. But the positive case is that the so-called adoption took place on the 10th day of the death of the mother of defendant No. 4. This evidence falsifies the defendant's case of adoption. Even apart from his evidence, it is unusual in a family to have an adoption ceremony before the Sudhi ceremony of the mother is over. Then again, the evidence of D.W. 3 as discussed earlier, indicates that Baidyanath wanted Sankar to rear up the child and not to adopt him and Sankar agreed to rear the child till the child comes of age. On this state of the evidence of the witness (D.W. 3) no reasonable man can come to a conclusion that the evidence satisfies the tests of giving and taking ceremony and other ingredients of adoption. Then again, the witness candidly admits that he does not remember as to whether any priest and barber was there when the so-called adoption took place. In our considered opinion, the evidence of D. W. 3 is totally unworthy of credit to estblish the case of giving and taking ceremony and relying upon his evidence, the learned single Judge having recorded the finding, the finding is unsustainable.
11. Coming to the next witness, namely D.W. 5, he also stated in his evidence-in-chief that Baidyanath said to Sankar that he gifted away the baby to him and Sankar accepted the baby saying that he took the baby as his adopted son and thereafter Sankar and his wife came to their house with the baby and since then defendant No. 4 is staying in the house of Sankar. But in cross-examination, it was elicited from him that priest and barber are employed on auspicious occasion, but on the occasion of adoption of defendant No. 4, there was no priest. It was also further elicited that Baidyanath performed the 21st day celebration of defendant No. 4 which is usually performed in their family and thereafter said that he would give away defendant No. 4 and without any further discussion, either preceding or following, wife of Sankar took away that baby (defendant No. 4). This statement, in fact, does not establish a case of giving and taking and if the ceremony of 21st day was being celebrated on the very day, it is natural to expect that priest and barber would be there and if that be so, it is not known why no adoption ceremony at all took place. Then again, if the barber was present, as stated by the witness, then it is not known as to why the said barber was not examined in the case. On scrutinising the evidence of D.W. 5, we are persuaded to accept the submission of Mr. Sinha appearing for the appellants that his evidence is of a very doubtful character and should not be believed to record a finding of giving and taking ceremony, as alleged by defendant No. 4.
12. The learned single Judge has been swayed away by the fact that defendant No. 4 was residing with the plaintiff and that goes to establish that he was so residing as the adopted son. But he lost sight of the fact that the mother of defendant No. 4 had died while defendant No. 4 was a few days old and in the absence of any other lady in the family of Baidyanath, the said defendant No, 4 was reared up by Sankar and Sasi, the plaintiff, who are no other persons than the uncle and aunt of defendant No. 4. One important factor which has not at all been noticed by the learned single Judge and, in our opinion, which should weigh heavily against the defendant's case of adoption, is that on the alleged date of adoption Sasi was only 18 years' old and she had two daughters by then. At such a young age, when there was sufficient time for Sankar and Sasi to have a son and they had two female children by then, it is unthinkable that they would decide to take a son in adoption and that is why the correct picture has been given by D.W. 3 in his evidence is cross-examination that Baidyanath wanted Sankar to rear up defendant No. 4 and Sankar agreed to rear him up until he comes of age.
13. The learned single Judge has relied upon the entry in the Voters' List indicating defendant No. 4 to be the son of Sankar, but in the absence of proof of giving and taking such entry alone would not establish the case of adoption, more so when it is not known on what basis and on whose information that entry has been made. In the aforesaid premises, on scrutiny of the entire evidence on record, we are of the considered opinion that the oral evidence of witnesses deposing to the factum of adoption is insufficient and untrustworthy. There has been no narration of the ceremony or even to the usual feast following it. It is to be remembered that the vidence of adoption has to be scrutinised since it results in changing the course of succession. The significant features discussed by us earlier and the scanning of evidence of D.Ws. 3 and 5 as made by us, aforesaid, unequivocally indicate that the defendant No. 4 has utterly failed to establish that he was given in adoption by his natural father and was taken in adoption by Sankar and Sasi and the conclusion of the learned single Judge on that score is wholly unsustainable in law. We accordingly set aside the said finding of the learned single Judge and hold that defendant No. 4 had not been given in adoption by his natural father and had not been taken in adoption by Sankar and Sasi.
14. In the net result, therefore, the judgment and decree of the learned single Judge are set aside and those of the learned trial Judge are affirmed. This A.H.O. is allowed. There will, however, be no order as to costs.
S.K. Mohanty, J.
15. I agree.