Orissa High Court
Doctor Nahak vs Bhika Nahak And Anr. on 13 July, 1993
Equivalent citations: II(1994)DMC236
JUDGMENT S.C. Mohapatra, J.
Plaintiff is the appellant against dismissal of a suit for partition.
1. Plaintiff is son of Anand. Defendant No. 1 Bhika is elder brother of Anand. Dhobani (defendant No. 2) is daughter Bhika. Case of the plaintiff is that when he was aged 10 years, Bhika adopted him on 28-1-1955. Bhika executed a registered deed of adoption on 9-10-1969 (Ext. 1) acknowledging the adoption. However, on 6-9-1976 Bhika cancelled the deed of adoption by another registered document and gifted his property to his daughter (defendant No. 2). Immediately thereafter suit was filed for partition on 15-10-1976.
2. Case of defendants is that Bhika did not adopt plaintiff at any time. He being an old and illiterate man was assured by his younger brother of all help and assistance in his management of properties on condition that he executed the adoption deed in token of his son who with his wife would stay with defendant No. 1, cook food for him and serve, he executed the document recitals of which are not true. Being convinced later that the document was got executed by him to grab his properties, defendant No. 1 cancelled the same by another registered document voluntary. Defendant No. 1 had executed one gift deed in favour of his daughter on 28-4-1958 and another on 6-9-1976 out of this own volition and defendant No. 2 is in possession of the said properties.
3. Plaintiff's claim depends on his adoption by defendant No. 1. Since natural line is disturbed by adoption plaintiff is to prove the same. Plaintiff examined himself as P.W. 1, his father Anand as P. W. 2, a priest as P.W. 3, a co-villager as P.W. 4 who claimed to be an invitee to the adoption being related and the front door neighbour as P.W. 5 to prove adoption. He also proved the deed of adoption (Ext. 1), deed of cancellation (Ext. 3) and three voters list of 1973 (Ext 2/a), another voter list dated 10-12-1974 (Ext. 2) and a third voters list of 1975 (Ext. 2/b). Defendants examined defendant No. 1 as D.W. 1 to deny the adoption. They examined D.W. 2 a relation who is attester witness to the gift deed to prove voluntariness of defendant No. 1. Both the deeds of gift were proved and marked as Exts. A and B.
4. On consideration of materials on record, Trial Court held that plaintiff is not the adopted son. Trial Court disbelieved the oral evidence adduced in this regard, drew advise inference for non-examination of person who were claimed to be present by other witnesses. It gave importance to the fact that in Ext. 1 plaintiff was described as son of Anand Naik. Entries in voters' lists describing plaintiff as son of defendant No. 1 was not also given importance. Finding that plaintiff not being adopted son has no locus standi to object to the deed of gift, it was held in evidence that gift was voluntary.
5. In case adoption of plaintiff is disproved, suit is to be dismissed. This is not disputed. Where natural father of the party is alive and other witnesses are also available to prove giving and taking, documents may corroborate their evidence of adoption, but will not be basis for a finding of adoption. As has been held in the decision of Supreme Court reported in A.I.R. 1959 S.C. 504 (Kishanlal v. Chaltibai) and A.I.R. 1979 S.C. 1286 (L. Debi Prasad (dead) by L. Rs. v. Smt. Fribeni Devi and Ors.), physical act of giving and taking is essential for a valid adoption. Normally, evidence of natural father who is to give is of great importance. Where, however, the person who is stated to have taken in adoption denies the adoption, clear evidence of giving and taking is necessary to be adduced to corroborate the natural father and clear circumstances which would lead to an inference that denial by the person to have taken in adoption is not correct, are to be brought to record. In this case, natural mother who is alive has not been examined. Trial Court has found that person who is related to both parties have not been examined. Explanation that he was suffering from gout was not accepted to be cogent since he could have been examined in Commission. Priest who was examined did not knew the basic requirement of a bramhin, while offering food (Chaalu) other witnesses were also disbelieved for cogent evidence. Trial Court who had occasion to see the witnesses and assess their demineour has disbelieved them for cogent reasons. I am also satisfied that the witnesses are not acceptable. Thus, giving and taking has not been proved.
6. No doubt, Ext. 1 which is a registered document is an admission by defendant No. 1 that he has adopted plaintiff. Trial Court rightly held that, when Ext. 1 was executed 14 years after adoption, plaintiff could not have been shown as son of Ananda his natural father. Besides, this document does not contain the date of adoption. In 1974 (1) C.W.R. 403 (Bausi Dei and Ors. v. Dasarathi Sahu and Ors.), a deed of adoption not b aving contained the date of adoption was not accepted. I am also of the view that absence of date of adoption is a document executed specifically for acknowledging the same would be doubted where date of adoption is not mentioned. If defendant No. 1 could have denied execution of such document and it would have found that he has actually executed the same, conduct of defendant No. 1 might have given rise to suspicion. In this case, he has been truthful in admitting execution but has explained the circumstances under which it came to existence 14 years after. By 1969, provision in Section 16 of the Hindu Adoption and Maintenance Act, 1956 had been in the field for a long time. If adoption would have been a fact, this deed of acknowledgement ought to have been executed both by the natural father and adoptive father to have a presumption that there was such adoption. No explanation is given why Ananda did not execute the same. Even if Ananda would have executed the same, presumption which is rebuttable would have been held by me to have been rebutted. Other documents are voters' lists. When giving and taking has been disbelieved, they would not be of much assistance even if it is presumed that they were prepared in regular course of official business. Question would have been different if validity of an ancient adoption would have been considered.
7. Trial Court has taken into consideration the improbability of adoption by relying upon evidence of plaintiff that Ext. 1 was not executed as Bhika was waiting for birth of a son. A person would not normally adopt when he expects a son would be borne to him. This is a strong circumstance in this case to disbelieve adoption and accept explanation of defendant No. 1.
8. In view of the aforesaid discussion, I am in complete agreement of the Trial Court that the plaintiff has not been able to prove his adoption and on being unsuccessful to prove his adoption his claim for partition also stands disbelieved.
9. In result, there is no merit in this appeal which is accordingly dismissed. There would be no order as to costs.