Jharkhand High Court
Mayno Soren vs Babu Lal Murmu [Died As Per Order Dated ... on 12 January, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026:JHHC:720
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 185 of 1995(P)
Budhu Murmu, adopted son of Late Munshi Murmu by caste
aboriginal Santhal resident of village Tarapur, P.S. Maheshpur, Distt.
Sahebganj (Now Pakur). ('dead' and substituted vide order dated
07.08.2025)
1. Mayno Soren, aged about 57 years, w/o late Budhu Murmu
2. Mahendra Murmu, aged about 31 years, son of late Budhu Murmu,
resident of village Bhetatola, Tarapur, P.O. & P.S. Maheshpur,
District Pakur, Jharkhand
... ... Plaintiff/Respondent 1st party/Appellants
Versus
1. Babu Lal Murmu [died as per order dated 25.02.2003 and I.A
No. 263 of 2003 seeking substitution of respondent no.1 was
dismissed on account of non-compliance of order dated
25.02.2003- hence proceedings abated as against the
respondent no.1]
2. Barson Murmu (died and substituted)
2A. Om Prakash Murmu, s/o late Barson Murmu, R/o village-
Lagaduk, P.O.- Lagaduk, P.S. Pakur, Dist- Pakur
2B. Emali Hembrom
W/o late Barson Murmu
R/o village- Tarapur, P.O. Tarapur, P.S. Maheshpur, Dist- Pakur.
(deleted vide order dated 08.03.2013).
2C. Praveen Kumar Murmu
2D. Sarita Murmu
2E. Sumitra Murmu
2F. Surekha Murmu
Above all 2C to 2F are sons & daughters of late Barson Murmu
R/o village- Lagaduk, Block- Pakulia, P.O. Pakulia, Dist.- Pakur.
3. Loda Murmu
All sons of Jetha Murmu and all by caste aboriginal Santhals
resident of village Tarapur, P.S. Maheshpur, Distt. Sahebganj
(Now Pakur)
... ... Defendant 1st set/Appellants/Respondent 1st set
4. Bodo Murmu, S/o Raska Murmu (died and substituted vide
order dated 23.12.2025)
4(1) Simal Murmu
4(2) Mandal Murmu
5. Raska Murmu, son of Mandal Murmu (died and substituted vide
order dated 23.12.2025)
5(1) Maheshwar Murmu
5(2) Jyotin Murmu
Above all are resident of village -Tarapur, P.O. & P.S. Maheshpur,
District- Pakur, Jharkhand.
... ...
nd nd nd
Defendant 2 party/Respondent 2 party/Respondent 2 party
6. Dy. Commissioner, Pakur.
2026:JHHC:720
... ... Defendant 3rd party/Respondent 3rd
party/Respondent 3rd party
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Kaushalendra Prasad, Advocate : Ms. Amrita Kumari, Advocate : Ms. Sulekha Sharma, Advocate For contesting Respondents : Mr. Jay Prakash Jha, Senior Advocate : Mr. Afaque Ahmad, Advocate : Mr. Aishwarya Prakash, Advocate
---
39/12.01.2026 Heard the learned counsel appearing on behalf of the parties.
2. This appeal has been filed by the plaintiff against the judgment and decree dated 05.07.1995 (decree signed on 15.07.1995) passed by learned Additional District Judge, Pakur in Title Appeal No. 22 of 1992/2 of 1994 whereby the learned 1st appellate court has reversed the judgment and decree dated 31.07.1992 passed by learned Sub- ordinate Judge-II, Pakur in Title Suit No. 49 of 1988. The suit was decreed by the learned trial court and the 1st appellate court reversed the decree. Consequently, the plaintiff is the appellant before this Court, who has been substituted during the pendency of this case.
3. At the outset, the learned Senior counsel for the respondents has referred to order dated 25.02.2003 pointing out that the appeal has abated as against the proposed legal heirs of deceased respondent no.1 on account of non-compliance of order dated 25.02.2003 and has further referred to order dated 01.05.2003 passed by this Court which has recorded that the question of incompetency of the appeal on account of its abatement in connection with deceased respondent no. 1 will be considered at the time of hearing. Learned counsel for the respondents submits that these orders may be taken care of while deciding the appeal.
4. Learned counsel for the appellants has submitted that in spite of the fact that the respondent no. 1 was not substituted, still the appeal has not abated. He submits that the case be decided on the basis of the substantial questions of law which have been framed vide order dated 23.02.1998 which are as follows:
22026:JHHC:720 "(i) whether an appellate court can doubt the genuineness of a valid registered deed fully proved by the scribe himself and found real, valid and genuine, by the trial court?
(ii) Whether the genuineness of valid document can be doubted, when the same has been otherwise fully proved, only because the identifying and attesting witnesses have not been examined?
(iii) Whether mere omission to mention a particular date in the adoption deed regarding the adoption which took some year back would invalid the deed?"
Arguments of the Appellants.
5. The learned counsel for the appellants has placed the trial court's as well as appellate court's judgment and has submitted that the plaintiff (original appellant) had filed the suit seeking a decree declaring that the plaintiff is the legally adopted son of Munshi Murmu and a further decree declaring right, title and interest of the plaintiff over the suit land was prayed. The plaintiff further sought a decree for confirmation of possession of the plaintiff over the suit land. In case the plaintiff was dispossessed during the pendency of the suit, a relief was also prayed for recovery of possession. The suit property was relating to Jamabandi No. 10 standing in the name of recorded tenant Jhunka Murmu.
6. Learned counsel for the appellants, while assailing the judgment passed by the learned 1st appellate court, has submitted that the factum of adoption was duly supported by the registered deed of adoption dated 14.06.1973 (exhibit-1). He has further submitted that two affidavits were also exhibited before the court which were exhibits 3 and 3/A i.e., the affidavit of Raska Hembrom, son of late Jata Hembrom and affidavit of Bijai Hansda, son of late Chunu Hansda, who had duly supported the factum of adoption, which, according to the affidavits, had taken place in the year 1973 as per the Santhal customary rituals. He has also submitted that the plaintiff had also produced exhibit-2 and 2/A which are the two rent receipts to show that he was in physical possession of the suit property.3
2026:JHHC:720
7. The learned counsel submits that the aforesaid documents were exhibited without any objection. The learned counsel further submits that in view of the aforesaid materials on record, the factum of adoption was duly proved, but the learned 1st appellate court erred in law in reversing the judgment passed by the learned trial court.
8. While referring to substantial question of law no. (i), the learned counsel for the appellants submits that the scribe of the registered deed of adoption was examined as P.W. 3 and therefore, the appellate court could not doubt the genuineness of the registered deed of adoption.
9. The learned counsel, while referring to substantial question of law no. (ii), has submitted that merely because the identifying and attesting witnesses have not been examined, the registered document with regard to adoption could not have been disbelieved, inasmuch as, the scribe himself had deposed before the learned court with regard to the registered deed of adoption.
10. With respect to the substantial question of law no. (iii), the learned counsel for the appellants has submitted that merely because no particular date was mentioned in the adoption deed regarding the adoption which had taken place some years back by performing the required ceremonies of adoption, the same was not fatal to the case of the plaintiff and would not invalidate the deed of adoption. Arguments of the contesting Respondents.
11. The learned Senior counsel appearing on behalf of the contesting respondents, while referring to the substantial questions of law, has submitted that merely because the registered deed has been executed, the same has no bearing in this case, inasmuch as, the plaintiff was required to plead and prove the factum of adoption. He submits that the parties are governed by customary law of Santhals and the learned 1st appellate court has disbelieved the evidence with regard to the factum of adoption by performing the ceremonies.
12. Learned Senior counsel for the contesting respondents has also submitted that though under Hindu Adoptions and Maintenance Act, 1956, the execution of a registered deed of adoption carries a 4 2026:JHHC:720 presumption with regard to its genuineness of adoption, but there is no such law with regard to adoption under the Santhal tribe. The learned Senior counsel submits that the learned 1st appellate court has considered the inconsistencies in the evidence of the witnesses produced by the plaintiff and thereby, the plaintiff has failed to prove the factum of adoption.
13. The learned Senior counsel has also placed the registered deed of adoption (exhibit-1) and has submitted that even as per the registered deed of adoption, there is no date of adoption. Further, even nothing has been mentioned with regard to year of adoption, rather the registered deed of adoption mentions that from the date of the execution of the deed, the plaintiff was adopted. He has also submitted that even in the plaint, no date or year of adoption has been mentioned. He has further submitted that in view of the fact that the parties are belonging to Scheduled Tribe and are governed by their tribal law, it was for the plaintiff to prove the factum of adoption by establishing that the ceremonies with regard to the adoption were duly performed which the plaintiff has miserably failed to prove and therefore, the learned 1st appellate court has rightly reversed the decree.
14. The learned Senior counsel for the respondents has referred to the findings recorded by the learned 1st appellate court and has also submitted that as per exhibit-D, which was the voter list, the plaintiff was shown as son of his natural father. He submits that this was enough to show that the plaintiff was not given in adoption to Munshi Murmu and his natural father was Raska Murmu. The learned counsel has also submitted that the exhibits- 3 and 3/A have been righty refused to be relied upon by the learned 1st appellate court , inasmuch as, the affidavits which were filed by way of exhibits 3 and 3/A could not be taken to be the oral evidence unless the witnesses were brought before the court for cross-examination and in case the witnesses were not brought for cross-examination, the learned 1st appellate court has rightly observed that a commission could have been appointed at the instance of the plaintiff for their examination and cross-examination.5
2026:JHHC:720
15. The learned Senior counsel submits that so far as exhibit- 2 series i.e., the rent receipts are concerned, the same has no bearing on the point regarding the legality and validity of adoption. The learned counsel has also submitted that if the adoption is ultimately found to be invalid, then the property would devolve upon the legal heirs and successors of Munshi Murmu as per the tribal laws.
16. The learned Senior counsel for the respondents has also referred to exhibit-B which has been discussed by the learned 1st appellate court and he submits that exhibit-B is the register of the school in which the plaintiff's natural father Raska Murmu had got him admitted on 20.01.1969, which was after 1967 when the alleged adoption as per the own evidence of the plaintiff, had taken place. The learned senior counsel submits that after the alleged adoption in the year 1967 the plaintiff was admitted in school and shown to be the son of his natural father Raska Murmu and such evidence is glaring to show that the factum of adoption was not at all proved by the plaintiff.
17. He has also submitted that the respondent no. 1 Babu Lal Murmu was one of the sons of Jetha Murmu and full brother of natural father of the plaintiff, as well as adoptive father of the plaintiff. He submits that in the plaint, the plaintiff had also sought a declaration with respect to right, title and interest over the suit property which was recorded in the name of Jhunka Murmu (common ancestor). The learned counsel submits that on account of non-substitution of respondent no. 1, the title with respect to the suit property cannot be declared in favour of the plaintiff and accordingly, the entire suit has abated with respect to such relief. The learned Senior counsel has also submitted that the plaintiff being natural grandson of Jhunka Murmu, may be entitled to inherit a portion of the property, if he was otherwise entitled.
18. The learned Senior counsel thereafter submits that the plaintiff may not have exclusive title with respect to the share of Munshi Murmu, his so-called adoptive father, but otherwise he may be entitled for a share in the property as per the law governing Santhals, a schedule tribe. He submits that the entire suit is related to adoption 6 2026:JHHC:720 and the consequence of adoption with respect to the alleged property of Munshi Murmu. The learned counsel has also submitted that though a plea of previous partition was taken in the written statement, but neither any issue was framed with regard to previous partition nor any finding has been recorded by the learned courts either way. Rejoinder arguments of the appellants.
19. In response, the learned counsel for the appellants has submitted that no petition was filed by the defendants for cross- examination of the two persons whose affidavits were exhibited as exhibits 3 and 3/A and therefore, the learned 1st appellate court has wrongly discarded those documents. However, this argument could not be related by the learned counsel for the appellants in connection with any of the substantial questions of law framed by this Court.
20. Learned Senior counsel for the respondents has relied upon following judgments:
(i) AIR 1966 SC 1427 (Pandit Sri Chand and others Vs. Jagdish Pershad Kishan Chand and others)- on the point of abatement;
(ii) AIR 2004 SC 3942 [Shahazada Bi and others Vs. Halimabi (since dead) by her Lrs.]- on the point of abatement;
(iii) AIR 1983 SC 114 (Madhusudan Das Vs. Narayanibai (deceased) by Lrs. and others) (paragraph 19)- to submit that the factum of adoption is duly required to be proved by the persons who assert the adoption.
Findings of this Court
21. It is not in dispute that the parties belong to the schedule tribe of Santhal and are governed by their customary law in the matter of adoption, inheritance etc. The record of the case reveals that Title Suit No. 49 of 1988 was filed by Budhu Murmu claiming himself to be the adopted son of late Munshi Murmu.
22. The suit property was J.B. No. 10 recorded in the name of common ancestor of the plaintiff and the defendants namely, Jhunka 7 2026:JHHC:720 Murmu; Jhunka Murmu is said to have left behind his three sons - Surju Murmu, Manu Murmu and Mondal Murmu;
Manu Murmu died leaving behind his only son Munshi Murmu who died issueless and the sole plaintiff claims to be the adopted son of Munshi Murmu.
Surju Murmu died leaving behind his only son Jetha Murmu and the Defendant nos. 1, 2 and 3 are three sons of Jetha Murmu namely, Babulal Murmu, Barson Murmu and Loda Murmu.
Mondal Murmu died leaving behind his two sons- Bodo Murmu and Raska Murmu who were made proforma defendant nos. 4 and 5. Deputy Commissioner, Sahibganj was made defendant no. 6. Biological father of the plaintiff was Raska Murmu.
23. It was the case of the plaintiff that Munshi Murmu had no issue and his wife also died and therefore, Munshi Murmu requested his cousin Raska Murmu (defendant no. 5) for giving his son Budhu Murmu - the plaintiff, who was minor at the relevant point of time, in adoption. Further, the defendant no. 5 - Raska Murmu had three sons including Budhu Murmu. The other two sons namely, Maheswar Murmu and Jotin Murmu were not party in the suit.
24. It was the specific case of the plaintiff that Munshi Murmu adopted the plaintiff according to Santhal customs and all ceremonies like Lebeth Achur, Nimda Mandi etc. were performed during adoption of the plaintiff and that Munshi Murmu had also executed a registered deed of adoption bearing no. 44 dated 14.06.1973 in token of adoption. It was the further case of the plaintiff that after adoption , the plaintiff began to reside with Munshi Murmu as his son and used to look after the person and the property of Munshi Murmu - the adoptive father. It was his further case that Munshi Murmu possessed land in J.B. No. 10 as his separate and exclusive share which was described in the schedule of the suit. Munshi Murmu died in the year 1978 and consequently, the plaintiff, being the adopted son, inherited the property of Munshi Murmu and remained in actual physical and exclusive cultivating possession of the suit property.
82026:JHHC:720
25. It was also the case of the plaintiff that he had been maintaining Rani Marandi - the mother of late Munshi Murmu, who was still alive and was living in the house of the plaintiff. It was asserted that the defendant 1st party (sons of late Jetha Murmu) or the proforma defendant 2nd party (sons of late Mondal Murmu) had no right, title and interest and possession with respect to the suit property.
26. The cause of action arose when the defendant 1st party for the first time in the year 1985 created trouble and a proceeding under section 144 of Cr.P.C. was instituted and was decided vide order dated 12.05.1986 wherein it was observed that the plaintiff was the rightful owner in possession of the suit land. However, in spite of this, the defendant 1st party had removed the paddy crop from the suit land in connection with which the plaintiff also instituted a criminal case in which the defendant 1st party were convicted on 15.06.1988. It was also the case that the defendant no. 1 had filed a miscellaneous case for measurement and demarcation of the suit land to which the plaintiff had filed objection and the prayer of the defendants was rejected on 27.10.1988. It was asserted that in spite of the aforesaid, the defendant 1st party were giving threats and committing force and violence and therefore, the plaintiff filed the suit-
seeking declaration that the plaintiff is the legally adopted son of Munshi Murmu; right, title and interest of the plaintiff over the suit land be declared ; possession of the plaintiff over the suit property be confirmed and it was also prayed that if the plaintiff is dispossessed during pendency of the suit, a decree for recovery of possession be passed.
27. The schedule of the plaint mentioned about different portions of the various plot numbers. The plaintiff claimed 15 Bigha, 19 Katha and 4 dhur of land out of 47 Bigha, 17 Katha and 13 dhur.
28. A written statement was filed on behalf of defendant no. 1 (Babulal Murmu- one of the defendant 1st party and son of Jetha Murmu) opposing the prayer of the plaintiff. However, it was not in dispute that the parties are Santhals by caste and they are governed by 9 2026:JHHC:720 their customary law. The defendant no.1 denied that the plaintiff was the adopted son of late Munshi Murmu.
It was asserted that the plaintiff was the biological son of Raska Murmu (defendant no. 5). It was further asserted that the plaintiff and the proforma defendant 2nd party belong to one branch of family who had fraudulently colluded amongst themselves. It was stated that after the demise of Manu Murmu, his widow Rani Hembrom remarried her Dewar namely, Mandal Murmu and out of the wedlock, two sons were born namely, Raska Murmu and Bodo Murmu, who have been impleaded as proforma defendant 2 nd party. It was further asserted that Munshi Murmu died issueless but he looked after his mother Rani Hembrom and the proforma defendants Raska Murmu and Bodo Murmu were born to Rani Hembrom through his uncle, Mandal Murmu.
Further, it was asserted that Munshi Murmu neither requested Raska Murmu for giving the plaintiff in adoption nor Raska Murmu agreed for the same and therefore, plaintiff was never the adopted son of Munshi Murmu and the essential ceremonies like Lebeth Achur, Nimda Mandi etc. as per customary law of adoption were never performed.
The story of adoption was completely denied. With respect to the registered deed of adoption dated 14.06.1973, it was asserted that it was forged and fabricated and it was not even a deed of alleged adoption. It was also asserted in the written statement that there was nothing in the plaint and also in the alleged deed of adoption to indicate as to when and on what date and time, the alleged ceremonies of Lebeth Achur, Nimda Mandi etc. were performed in the village regarding so-called adoption of the plaintiff by Munshi Murmu and it was asserted that the deed of adoption was forged and fabricated. It was further asserted that under the Santhal custom a valid adoption is not at all possible and legally acceptable without performing the custom of Lebeth-Achur and Nimda-Mandi and such customs are performed as public act of person taking the adoption in presence of the village officials like Pradhan, Pramanic, Naike, Choukidar, the 10 2026:JHHC:720 villages and Gotias (agnates) and after the ceremony of adoption, food is served and a document is prepared. It was asserted that the aforesaid ceremonies were never performed.
29. Thus, the details of the ceremonies which are required to be performed for adoption have been narrated in the written statement. It was also asserted that the adoption of the eldest son in the Santhal community is not permissible and the plaintiff was the eldest son of Raska Murmu and therefore, otherwise also he could not have been given in adoption and the entire story of adoption of the plaintiff by late Munshi Murmu was claimed to be false and absurd.
30. The written statement also highlighted the narration in the registered deed of adoption which read that by virtue of the execution of the adoption deed, the executor declared that the plaintiff had become his adopted child and from the date of the execution of the deed, the plaintiff became the adopted child of Munshi Murmu. It was asserted that the registered deed nowhere whispered the date and time when the customs relating to alleged adoption of the plaintiff was performed and it was asserted that the deed of adoption cannot be said to treat the plaintiff as the adopted child of Munshi Murmu and the deed of adoption was a mere declaration and not a deed of adoption which did not bear the signature and authentication of the village officials in whose presence, the required customs for valid adoption were to be performed. It was also asserted that the registered deed of adoption did not contain the signature of proforma defendant Raska Murmu - the biological father of the plaintiff and deed of adoption was claimed to be forged, fabricated and totally inconsequential in law.
31. Other statements that the plaintiff started residing with Munshi Murmu and was looking after his property were also denied.
32. With respect to the suit property, it was admitted that the suit property was recorded in the name of Jhunka Murmu and it was asserted that it was joint amongst the defendants and the proforma defendants and it was never partitioned amongst the three sons of Jhunka Murmu by metes and bounds. It was asserted that each of them 11 2026:JHHC:720 separately cultivating some land out of the same for the sake of convenience. It was also asserted that the suit land was never the exclusive land held by Munshi Murmu nor it was in the exclusive possession of the plaintiff. The defendants claimed to be in joint possession of the suit land. It was also denied that the plaintiff was in physical and cultivating possession of the suit land and it was asserted that Rani Hembram was living with her sons Raska Murmu and Bodo Murmu and not with the plaintiff.
33. With respect to the order under section 144 of Code of Criminal Procedure, it was asserted that it was not admissible in evidence. With respect to conviction, it was asserted that criminal appeal was pending.
34. The defendants 2nd party namely Bodo Murmu and Raska Murmu who were defendant nos. 4 and 5 in the suit, also filed their written statement and asserted that there has been amicable partition amongst the three sons of the recorded tenant Jhunka Murmu and each held 1/3rd share of land in J.B. No. 10 and 1/3rd share fell in share of Manu Murmu. It was further asserted that Munshi Murmu, s/o Manu Murmu had inherited the 1/3rd share and consequently, the plaintiff being the adopted son of Munshi Murmu inherited 1/3 rd share in J.B. No. 10. Thus, the proforma defendants had supported the case of the plaintiff.
35. The learned trial court framed the following issues for consideration:
(I) Is the suit maintainable?
(II) Is the suit barred by limitation, waiver and estoppel? (III) Has the plaintiff any cause of action for this suit? (IV) Has the plaintiff right, title, interest in the suit land? (V) Is the Registered deed of adoption bearing No. 44 of 14.6.73 valid and operative?
(VI) Is the Registered deed of adoption forged and fabricated? (VII) Is the plaintiff a legally adopted son of Munshi Murmu? (VIII) Is the plaintiff entitled to reliefs claimed?"
36. The learned trial court took up issue nos. V, VI and VII together and considered oral and documentary evidences. The learned court, while considering the exhibit-1, which is the registered deed of 12 2026:JHHC:720 adoption, also considered the exhibit 3 and 3/A which were affidavits of Raska Hembrom and Bijai Hansda and recorded the objection of the contesting defendant 1st party in connection with exhibit 3 and 3/A as these two persons had not deposed before the Court and their affidavits were not admissible. However, the learned court recorded that it has come in the evidence of the defendants that these two persons have become old and were around 80 to 85 years of age and therefore, they were not in a position to depose before the Court and accordingly, refused to reject the exhibit 3 and 3/A. The learned court also recorded that from the perusal of exhibit 1, exhibit 3 and 3/A it was clear that the plaintiff was taken in adoption by Munshi Murmu. The Court also took into consideration exhibit- 2, which was the rent receipt issued in favour of the plaintiff with respect to the suit property. The learned court also considered the witnesses of the contesting defendants and ultimately, recorded finding in paragraph 14 and 15 and held that the plaintiff was able to prove his case that he was the validly adopted son of Munshi Murmu. The plea of the defendants that the exhibit- 1 was forged and fabricated was rejected by the learned trial court. The Court relied upon the evidence of P.W. 3 who was the scribe of the registered deed of adoption and observed that no other witness was required to prove exhibit- 1 and held that the deed of adoption no. 44 dated 14.06.1973 was valid.
37. The learned trial court also recorded that the plaintiff was in possession of the property while deciding issue no. IV and ultimately held that the plaintiff was the validly adopted son of Munshi Murmu and had right, title, interest and possession with respect to the suit property.
38. The 1st appeal was filed by the contesting defendants and the learned 1st appellate court in paragraph 7 of its judgment, has recorded that the moot question which arose for determination was whether the plaintiff was legally adopted son of Munshi Murmu and also recorded that all other questions were 13 2026:JHHC:720 collateral ones centering around the basic question in controversy.
39. The learned 1st appellate court observed that the plaintiff had not pleaded in the plaint as to when his adoption took place by Munshi Murmu. Further, as oral proof on adoption, the plaintiff had examined 4 witnesses including himself. They were P.W. 1 - Sheo Shankar Rabidas, P.W. 2 - Sanatan Hansda, P.W. 3 - Abdul Rajak Biswas and P.W. 8 - the plaintiff himself. The learned court further recorded that the other witnesses examined by the plaintiff were formal and the registered deed of adoption was exhibit- 1 said to have been executed by Munshi Murmu on 14.06.1973. The learned 1st appellate Court referred to the materials which were considered by the learned trial court while holding that the adoption was valid in paragraph 10 of the judgement of the 1st appellate court.Thereafter, the learned 1st appellate court in the next paragraph, again numbered as paragraph 10, recorded the submissions of the contesting defendants, who were the appellants before the learned 1st appellate court and recorded that their counsel had pointed out the contradictions in connection with the oral evidences led by the plaintiff with regard to the factum of adoption and in said paragraph itself, the learned 1st appellate court recorded its findings as under:
"10.......According to P.W. 1 and 2 the adoption ceremony of the plaintiff was held 17/18 years back. They being examined in the year 1990, the year of adoption according to them comes to 1973. It is contrary to what the plaintiff has deposed at para-5 of his evidence. According to the plaintiff the adoption was held 6/7 years prior to the deed of adoption was executed. Ext. I was executed in the year 1973, so according to the plaintiff the year of alleged adoption comes to 1967. So the evidence of plaintiff and P.W. 1 are inconsistent on when the alleged adoption took place and they differ by 5 years. The plaintiff is absolutely silent in his pleading as to when the adoption did take place. It is in the above background that the learned appellant's counsel has rightly pointed out that the evidence of PWs 1 and 2 are not worth relying on the factum of adoption. When evidence of P.W. 1 and 2 are shaky and not worth relying, the interested oral testimony of the plaintiff (P.W. 8) is of no significance. According to the evidence of P.W. I para -10 and P.W. 2 (para- 4), the main witnesses who 14 2026:JHHC:720 attended the function were Hiroo, Robin, Ratan , Raska Hembrom, Jogin Murmu, Jatu Hembrom and Vijoy Hansda, apart from them. According to P.W. 5, Hiroo Besra, Ratan Hembrom, Robin, Jogen are dead. Bijoy Hansda and Raska Hembrom, father of the plaintiff is very old and in-capable to move so only the affidavits of Bijoy Hansda and Raska Hembrom ext. 3 and 3/a have been tendered in evidence by the plaintiff. The learned appellant's counsel has assailed exts 3 and 3/a saying that in absence of direct testimony of Raska Hembrom and Bijoy, their affidavits cannot be legal evidence to testify the alleged adoption. I find force in this argument. If these two witnesses were old and incapable to move, the plaintiff ought to have taken commission to the spot to record their testimonies. So their oral statement in the affidavits cannot go in the formal way without (they) the two witnesses being tested on cross-examination. It would be found that the learned trial court at para-10 of his judgment has discussed the evidence of the two affidavits (Ext. 3 and 3/a) which supports the plaintiff's case of adoption and has illegally accepted and relied upon the two exhibits as legal evidence. In my view, the evidence of the two affidavits are absolutely worth rejecting and they cannot be accepted as legal evidence."
40. Thus, the learned 1st appellate court discussed the findings of the learned trial court and observed that the learned trial court had wrongly relied upon two exhibits (exhibits 3 and 3/A) though they were absolutely worth rejecting and they could not be accepted as legal evidence. The learned 1st appellate court also highlighted the contradictions in the evidence of the plaintiff 's witnesses and also recorded that in the plaint there was no mention of the date / year of adoption.
41. Further, the learned 1st appellate Court discussed in paragraph 11 that certain important witnesses were not produced by the plaintiff and the Court had drawn adverse inference on account of non- examination of two witnesses namely, Raska Murmu (biological father of the plaintiff ) and Rani Marandi .
42. The learned 1st appellate court thereafter discussed the documentary evidence i.e., exhibit 1 from paragraph 12 onwards.
43. The learned 1st appellate court considered the registered deed of adoption (Exhibit-1) threadbare and observed that the Exhibit-1 has 15 2026:JHHC:720 been formally proved by P.W. 3, the scribe of this document but the contesting defendants have alleged that exhibit-1 is forged, fake and fabricated and has been executed with an intention to grab the property of the contesting defendants in the land of Munshi Murmu. The learned Court was of the view that the onus was upon the plaintiff to prove due execution of exhibit- 1 by Munshi Murmu. The learned 1st appellate Court then recorded that the exhibit-1 was attested by one Lal Bihari who was still alive as per the oral evidence of the plaintiff himself and Lal Bihari was a retired teacher, but he was not examined in the case. The learned Court recorded that the scribe (P.W.3) had stated that Lal Bihari had attested the execution of exhibit- 1. The Court then considered the other witnesses to exhibit- 1 who were Madan Mohan Ghosh and Dhanisukh Rahman and recorded that the oral evidences revealed that they were still alive and there was nothing to show that they were dead, but none of them were examined to prove execution of exhibit- 1. The 1st appellate Court observed that non-examination of the attesting witness Lal Bihari and above two witnesses of exhibit- 1 namely, Madan Mohan Ghosh and Dhanisukh Rahman called for drawing adverse inference against the plaintiff that had they been produced in witness box, they would not have supported the attesting and witnessing the execution of exhibit- 1 by Munshi Murmu. The learned Court also observed that Lal Bihari was admittedly the co-villager of the plaintiff, but no explanation was tendered for his non-examination.
44. Thereafter, the learned 1st appellate court, in paragraph 12 itself, considered the role of the scribe of a document and observed that the scribe is generally competent to testify about his writing on the body of the document and even if the executant signs or otherwise authenticates the execution of the document in his presence, in the absence of scribe knowing the executant or personally identifying the executant, his evidence on the execution is of no significance. The learned 1st appellate court observed that in such circumstances, the reliability of the scribe proving execution of a document depends upon reliability of the person who identified the executant to the scribe.
162026:JHHC:720 With this, the learned 1st appellate Court examined the deposition of the scribe and observed that in the present case the scribe is a resident of a different village under different police station and that is the reason the scribe (P.W. 3) did not know Munshi Murmu from before and in this regard, the scribe has clearly admitted in his evidence at paragraph 2. The Court observed that it was perhaps the attesting witness Lal Bihari and identifying witnesses namely, Madan Mohan Ghosh and Dhanisukh Rahman, who introduced Munshi Murmu before him (P.W.3) as the person executing the document (exhibit- 1) and on such source of identification of Munshi Murmu, P.W. 3 had testified the execution of exhibit- 1. The Court recorded a definite finding that in the absence of evidence of Lal Bihari or other identifying witnesses referred to above, the scribe (P.W. 3) was not competent to testify and say that the exhibit- 1 was executed by genuine person namely, Munshi Murmu, son of Manu Murmu. The Court agreed with the arguments of the contesting defendants, who were the appellants before the learned 1st appellate Court, that the execution of exhibit- 1 was not proved by the competent person and so held that it was of no use to the plaintiff.
45. The learned 1st appellate court in paragraph 13 of its judgment recorded further circumstances as to why the story of adoption of the plaintiff was not correct and that the registered deed of adoption (exhibit-1) was not a genuine document which was allegedly executed by Munshi Murmu. The Court highlighted that there was serious discrepancy in connection with the alleged date of adoption, inasmuch as, according to the plaintiff the adoption had taken place around 6 to 7 years prior to execution of exhibit- 1 and therefore, in case of registered deed of adoption being of the year 1973, the year of adoption would come to the year 1967. The learned Court referred to the evidence of D.W. 8, who was a teacher in the school where the plaintiff had been admitted in the year 1969, and this witness had exhibited the register regarding admission of the plaintiff in the school marked as Exhibit- B. It was recorded by the learned 1st appellate Court that according to the school register, plaintiff's father was Raska 17 2026:JHHC:720 Murmu (the natural father of the plaintiff) who had taken plaintiff to the school on 20.01.1969 and got him admitted there. The Court observed that if the plaintiff was adopted by Munshi Murmu way back in the year 1967, there was no occasion to show in the school register the name of natural father of the plaintiff - Raska Murmu and not the name of alleged adoptive father- Munshi Murmu.
46. The further glaring circumstance which the learned 1 st appellate court recorded is with respect to the certified copy of the voter list which was the revised voter list prepared in the year 1988 in which the plaintiff was shown to be the son of Raska Murmu (his natural father) and there was no reference of adoptive father - Munshi Murmu. This exhibit- D was prepared 20 years after the alleged adoption. The Court further observed that as per the law in practice, in case of adoption, the adopted son ceases to have any relationship with the family of birth and he becomes the son of adoptive father for all purposes and is recognized as such in the society, but in the present case this was not found.
47. The learned 1st appellate Court further recorded in paragraph 14 of the judgment that the plaintiff had no definite case in his pleading as to when his adoption was held and according to his evidence, the adoption was held in the year 1967. The Court also observed that the deed of adoption did not say that the adoption was held earlier and when, and the deed itself stated that the plaintiff became the son of Munshi Murmu from "today", that is, from the date of execution of the deed of adoption. The learned 1st appellate Court recorded that the deed of adoption contained inconsistent recitals about the adoption of the plaintiff coming into effect. The learned 1st appellate court ultimately recorded the finding after completing the entire discussion in paragraph 15 that the plaintiff has failed to prove the alleged adoption by Munshi Murmu; the deed of adoption was not duly proved and that it was forged and fake document. It was further held that consequently, the plaintiff cannot be said to be the adopted son of Munshi Murmu and he cannot be said to have inherited share of Munshi Murmu as son. The plaintiff cannot be said to have acquired 18 2026:JHHC:720 the title to the suit property by virtue of being the adopted son of Munshi Murmu with respect to the suit property. The learned 1st appellate Court also observed that the plaintiff coming in possession of the property of Munshi Murmu was only relevant circumstance to consider the factum of adoption, but the same itself did not constitute source of title to the plaintiff and also observed that adverse possession was neither pleaded nor proved by the plaintiff. The Court also recorded that the defendants' witnesses examined on behalf of the contesting defendants including D.W. 10 - the Pradhan of the village, had stated that the plaintiff's case of adoption was false and they had deposed that Munshi Murmu never adopted the plaintiff as his son and the plaintiff did not come in possession of the Munshi Murmu's land. According to them, the land of Munshi Murmu came in joint possession of the family of both the branches including the plaintiff who was admittedly born in the family.
48. The learned 1st appellate court ultimately set-aside the findings and the judgment of the learned trial court on the point of adoption and also on the point of title and possession of the plaintiff with respect to the suit property in the capacity of the adopted son of Munshi Murmu.
On the point of abatement of appeal due to non-substitution of the deceased defendant no.1 [respondent no. 1- Babu Lal Murmu ]
49. In the judgement passed by the Hon'ble Supreme Court in the case of Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 142 it has been explained with respect to the tests applicable in considering whether an appeal abates in its entirety when the appeal has abated qua one of the respondents and it has also been observed that the case has to be examined in its facts and circumstance. It has been held as under: -
"7. This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram [(1962) 2 SCR 636] this Court explained the tests applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents. The headnote of the case reads:19
2026:JHHC:720 "If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it : otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court-and the tests to determine this have been described thus : (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent;
(b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and
(c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed."
8. The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.
9. When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents, other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated."
10. The principle of this judgment was affirmed in Rameshwar Prasad case [(1964) 3 SCR 549] and later in an unreported judgment in Kishan Singh v. Nidhan Singh [ CA 563 of 1963 decided on Dec. 14, 1964]. It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram case [(1962) 2 SCR 636] are not cumulative tests. Even if one of them is satisfied, the court may, having regard to all the circumstances, hold that the appeal has abated in its entirety."
202026:JHHC:720
50. In the judgement passed by the Hon'ble Supreme Court in the case of Shahazada Bi v. Halimabi, (2004) 7 SCC 354 it has been held as under: -
"9............Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co- defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. (See Masilamani Nadar v. Kuttiamma3.) In the case Sant Singh v. Gulab Singh it has been held that under Order 22 Rule 4(3) read with Order 22 Rule 11 CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. It was further held in the said judgment that a distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. To the same effect is the ratio of 21 2026:JHHC:720 the judgment of this Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree dehors relationship of the parties inter se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22 CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for the sake of convenience in a single suit, the decree passed by the court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as a joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement, with reference to the fact as to whether the decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other." (emphasis supplied)
51. The suit was filed seeking a declaration that the plaintiff is legally adopted son of Munshi Murmu and for a declaration of right, title, interest and possession of the suit property which constituted about 1/3 of the property recorded in the name of common ancestor Jhunka Murmu. The plea of adoption was disputed by the contesting defendants, all sons of Jetha Murmu and grandsons of Surju Murmu. Admittedly, Jhunka Murmu had three sons, Surju Murmu, Manu Murmu and Mondal Murmu. The plaintiff claimed to be the adopted son in the branch of Manu Murmu and the plaintiff was admittedly the biological son in the branch of Mondal Murmu.
52. Admittedly, last descendant of Manu Murmu, namely, Munshi Murmu, died issueless and the plaintiff claimed to have been adopted by Munshi Murmu. Admittedly, the defendants from the branch of 22 2026:JHHC:720 Mondal Murmu were supporting the plaintiff in the suit. The core dispute was with regards to adoption of the plaintiff followed by his claim of inheritance of 1/3rd share of the property of the common ancestor- Jhunka Murmu in the capacity of adopted son of Munshi Murmu.
53. The contesting defendant nos. 1, 2 and 3 (Babulal Murmu, Barson Murmu and Loda Murmu) were from the branch of Surju Murmu and amongst them, Babulal Murmu (defendant no.1) died during the pendency of this appeal but not substituted by the plaintiff/appellants.
54. The consequences of death of one or the other party has to be examined in the light of the facts of each case and the nature of decree involved in the case. The suit property is 1/3rd share of the property of Jhunka Murmu- the common ancestor.
55. If the suit involved in the present case, is decided in favour of the appellants-the plaintiff, it would result in conferring 1/3rd share of the property of common ancestor -Jhunka Murmu to the plaintiff and consequently 1/3rd of the property of Jhunka Murmu to the contesting defendants jointly and 1/3rd share of the property of Jhunka Murmu to non- contesting defendants jointly.
56. If this appeal is dismissed and consequently the suit stands dismissed, the property of Jhunka Murmu would be divided ½ and ½ between the contesting defendants jointly on one hand and non- contesting defendants jointly along with the plaintiff on the other hand and this would be the situation if the declaration of adoption as prayed by the plaintiff is ultimately rejected. The fulcrum of the case is legality and validity of the claim of adoption as raised by the plaintiff.
57. This court is of the considered view that the interest and the estate of Babulal Murmu (defendant no.1) is duly represented by his two full brothers already on record and inspite of non-substitution of Babulal Murmu (defendant no.1) the appeal would not abate.
58. This court is of the considered view that the estate of one deceased amongst the contesting defendants of the same branch of the family is sufficiently represented by the other two contesting 23 2026:JHHC:720 defendants of the same branch and the decree or order will not be rendered non executable in the absence of one deceased defendant amongst the contesting defendants, representing the same branch of the family. Hence this 2nd appeal has not abated. Substantial question of law nos. (i), (ii) and (iii)
59. This court finds that it is not in dispute that the parties belong to the scheduled tribe Santhal and are governed by their customary law in the matter of inheritance and succession etc. It has been rightly pointed out by the learned Senior counsel for the contesting respondents, the parties are Santhals belonging to Scheduled Tribe and they are not governed by Hindu Adoptions and Maintenance Act, 1956.
60. This Court finds that as per applicability of the Hindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as the "Act of 1956"), section 2(2), there is a clear provision that the Act of 1956 shall not apply to members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notification in the official gazette otherwise directs. The relevant provision is quoted as under:
"Section 2. Application of Act.-
(1) This Act applies-.......
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."
61. This Court finds that the plaintiff had asserted that the necessary ceremonies such as Lebeth Achur, Nimda Mandi etc. in connection with adoption of the plaintiff as per customary law of Santhals were duly performed and performance of these ceremonies was denied by the contesting defendants. Meaning thereby, it is not in dispute that aforesaid rituals and ceremonies are required to be performed amongst Santhals for a valid adoption.
242026:JHHC:720
62. This Court finds that the plaint did not disclose the date and year of adoption/ performance of necessary ceremonies such as Lebeth Achur, Nimda Mandi etc. Further, the exhibit-1, which is the registered deed of adoption alleged to have been executed by Munshi Murmu (the alleged adoptive father of the plaintiff) also did not refer to any date of adoption, rather the deed stated that from the date of execution of the registered deed of adoption, the plaintiff became the adopted son of Munshi Murmu. It is also important to note that the biological father of the plaintiff namely, Raska Murmu, is also not a signatory to the alleged registered deed of adoption (exhibit-1) . Since there was no definite date and year of adoption, the plaintiff has not been able to plead and prove that the necessary ceremonies with regard to adoption were duly performed on a particular date/year and the plaintiff primarily rested his case on the registered deed of adoption of the year 1973.
63. This Court finds that as per section 16 of the aforesaid Act of 1956, there is a presumption as regards registered document relating to adoption, but in the present case, parties being governed by the customary law amongst Santhals, the principles in connection with presumption regarding registered adoption deed do not apply and the adoption was required to be duly pleaded and proved by leading cogent evidence with regard to performance of the essential ceremonies of adoption, such as Lebeth Achur, Nimda Mandi etc. including the date and year of adoption, which the plaintiff has failed to prove.
64. In the judgement passed by the Hon'ble Supreme Court reported in (1983) 1 SCC 35 (Madhusudan Das v. Narayanibai), it has been held that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. It has also been held that for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever be the caste. And this requisite is satisfied in its essence only by actual delivery and acceptance of the boy, even though there exists an 25 2026:JHHC:720 expression of consent or an executed deed of adoption . Paragraph 19 and 20 of the aforesaid report is quoted as under:
"19. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity (see A. Raghavamma v.A. Chenchamma [AIR 1964 SC 136]). It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth (see Kishori Lal v. Chaltibai [AIR 1959 SC 504]). Nonetheless the fact of adoption must be proved in the same way as any other fact.
20.For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever be the caste. And this requisite is satisfied in its essence only by actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption ......................."
65. This Court finds that the learned 1st appellate court, while doubting the genuineness of registered deed of adoption proved by the scribe (P.W-3) and the factum of adoption, has fully considered the materials on record. The learned court has rightly held that the scribe (P.W-3) had no personal knowledge in connection with the identity of Munshi Murmu (the executor of the deed and alleged adoptive father of the plaintiff) and the persons who had personal knowledge with respect to his identity , who had identified the Munshi Murmu in the registered deed, were not examined before the Court although they were alive and one of them was a co-villager. The detailed discussions made by the learned 1st appellate court with regards to the evidence of the scribe (P.W-3) and non-examination of the attesting witness and two witnesses to the deed have already been mentioned above. This court is of the considered view that in the facts and circumstances of this case, mere examination of the scribe (P.W-3) was not sufficient to establish that Munshi Murmu was the person who had executed the deed of adoption once it is alleged that the deed of adoption (exhibit-
1) was a forged and fabricated document.
66. Even if the exhibit 1 is assumed to be executed by Munshi Murmu, the learned 1st appellate court has rightly recorded further 26 2026:JHHC:720 reasons to disbelieve the story of adoption of the plaintiff. The learned 1st appellate court has also rightly recorded that otherwise also, the alleged deed of adoption (exhibit-1) had no value in the eyes of law as the same did not refer to any date of adoption and the deed itself mentioned that from the date of execution of the deed, the plaintiff was the adopted son of Munshi Murmu and admittedly, the natural father of the plaintiff, Raska Murmu, was not a signatory to the deed of adoption.
67. The learned 1st appellate court while thoroughly discussing the materials, has rightly rejected the two affidavits (exhibit-3 and 3/a) as the same were not filed in the suit by way of evidence on affidavit in the suit so as to give opportunity to the contesting defendants to cross examine the executants of the affidavits in the court, rather the same were mere affidavits outside the court proceedings. The learned 1 st appellate court has rightly observed that in case the deponents of the two affidavits (exhibit-3 and 3/a) were unable to come to the court to depose in the suit proceedings for cross-examination, appropriate steps were required to be taken by the plaintiff to appoint commission for their examination/ cross examination but no such steps were taken and the learned 1st appellate court has rightly held that such evidence was not admissible.
68. This court is of the considered view that the learned 1st appellate court has rightly doubted the genuineness of the registered deed of adoption and has rightly upset the finding of the learned trial court in that connection as neither the registered deed of adoption was proved nor the date/year of the alleged adoption by performing the required ceremonies as per customs of Santhal Tribe was proved.
69. This Court is of the view that omission of the date of adoption in the deed of adoption has a serious bearing in the matter, inasmuch as, admittedly , the adoption under Santhal tribe has to be performed by observing certain ceremonies as mentioned above and in absence of any date with respect to the performance of ceremony of adoption, either in the plaint or in the registered deed of adoption, mere statement that adoption took place some years back is of no relevance.
272026:JHHC:720 The plaintiff asserted performance of the necessary ceremonies and the contesting defendants denied the same and it was for the plaintiff to prove the factum of adoption. So far as the registered deed of adoption is concerned, no presumption is attached in connection with due adoption merely because of existence of a registered deed of adoption when it comes to its relevance amongst the Santhals governed by their customary law. It was incumbent upon the plaintiff to plead and prove the date of adoption and the performance of ceremonies as per customs of Santhal tribe which included ceremonies like Lebeth Achur, Nimda Mandi etc. The plaintiff has miserably failed to prove the adoption and this Court finds that the registered deed of adoption has been righty disbelieved by the learned 1st appellate court by a detailed discussion of the materials on record and also after meeting with the reasons of the learned trial court while upsetting the findings of the learned trial court.
70. From the aforesaid discussions and while answering the substantial questions of law, this court is of the considered view that the learned 1st appellate court can certainly and has rightly doubted the genuineness of the registered deed of adoption though the deed was proved by the scribe of the deed examined as P.W-3 in the circumstances where the P.W-3, upon discussions of materials on record, was held to be a person who had not known the executor of the registered deed (Munshi Murmu) and neither the attesting witness who had introduced the executor to the scribe nor the two witnesses to the deed, were examined before the court without citing any reasons for which the learned 1st appellate court has rightly drawn adverse inference after observing that the scribe (P.W-3) was not a competent witness to prove that the registered deed was duly executed by Munshi Murmu. The finding of the learned trial court was rightly reversed by citing reasons. In view of the aforesaid discussions, the substantial questions of law nos. (i) and (ii) are accordingly answered against the appellants and in favour of the contesting respondents.
282026:JHHC:720
71. In the light of the aforesaid discussions the substantial question of law no. (iii) is also fit to be answered against the appellants and in favour of the contesting respondents. Admittedly the parties are governed by customary law applicable to Santhals and admittedly under the customary law, for a valid adoption, performance of rituals such as Lebeth Achur, Nimda Mandi etc. are essential ceremonies. As discussed above , the learned 1st appellate court while disbelieving the factum of adoption of the plaintiff has taken note of the fact that the date/year of adoption of the plaintiff was neither mentioned in the plaint nor was mentioned in the registered deed of adoption and the deed of adoption on the one hand mentioned that the adoption took place some year back, and, on the other hand mentioned that the plaintiff became the adopted son of Munshi Murmu from the date of the registered deed and there was contradictions in the registered deed itself. This court finds that, this is not a case of mere non- mentioning of date/ year of adoption in the deed (exhibit-1) but it is a case where even the plaint did not mention the date/year of adoption of the plaintiff. The learned court has considered absence of date and year of adoption both in the deed (exhibit-1) and also in the plaint. The learned court has also considered the contradictions in the evidences of the plaintiff with regards to the date/year of adoption. This court is of the considered view that non-mentioning of date/year of adoption in the plaint and also the registered deed were rightly taken into consideration by the learned 1st appellate court along with other evidences on record to reject the plea of adoption as asserted by the plaintiff and denied by the contesting defendants. As discussed above, detailed reasons have been cited by the learned 1 st appellate court to disbelieve the deed of adoption and non-mentioning of date and year of adoption was just one of the considerations. The learned court has also taken into consideration that even the biological father of the plaintiff, Raska Murmu was not a signatory to the registered deed of adoption (exhibit-1). This is over and above the fact that the registered deed of adoption in the instant case would not carry the presumption of valid adoption as is available under Hindu Adoptions 29 2026:JHHC:720 and Maintenance Act, 1956 and the adoption by performing customary ceremonies as per Santhal tribal custom was required to be proved by the plaintiff for which date of adoption was a material fact. In view of the aforesaid discussions, the substantial question of law no. (iii) is also decided against the appellants and in favour of the contesting respondents.
72. All the substantial questions of law are accordingly answered against the appellants (substituted heirs of the plaintiff) and in favour of the contesting respondents (contesting defendants).
73. Consequently, this appeal is hereby dismissed.
74. Pending interlocutory application, if any, is also dismissed as not pressed.
75. Let the records received from the learned Court concerned be sent back forthwith.
76. Let this order be communicated to the learned court concerned through 'FAX/email'.
(Anubha Rawat Choudhary, J.) Date of order: 12.01.2026 Pankaj Date of uploading:27.01.2026 30