Orissa High Court
Priyanath Mohanty vs Indumati Bewa on 24 August, 1970
Equivalent citations: AIR 1971 ORISSA 211
JUDGMENT R.N. Misra, J.
1. The defendant is in appeal against a reversing judgment of the learned First Additional Subordinate Judge, Cuttack, in a suit for declaration that the defendant is not the adopted son of the plaintiff's husband and has thus no right, title or interest in the disputed property described in the Kha Schedule,
2. Jagannath, Balabhadra and Padma Charan were three brothers and belonged to a joint family. The plaintiff happens to be the widow of Padma Charan. On the death of Padma Charan, Jagannath was looking after the family properties as Karta. The defendant is the sister's son of the plaintiffs husband Padma Charan. He had never been taken in adoption by Padma Charan or the plaintiff. After Padma Charan's death there were some disputes and the defendant came to the plaintiff and persuaded her to execute a power-of-attorney so that the defendant would support the plaintiff and the plaintiff would not be harassed by her husband's brothers. The plaintiff is a pardanashin illiterate lady and having implicit faith in the defendant put signatures to a document without knowing its contents. Later on the plaintiff came to learn that it was a document acknowledging the adoption of the defendant and on the strength of the said document the defendant claimed himself to be the adopted son. The plaintiff had thus been obliged to bring the suit
3. The defence was that the defendant was the sister's son of Padma Charan and had lost his mother during his childhood. As Padma Charan had no issues, he proposed to adopt the defendant and the defendant's natural father accepted the proposal and made him over to Padma Charan who formally adopted him. The defendant had continued to live with Padma Charan and thereafter with the plaintiff as the adopted son. Padma Charan was serving in the Forest Department of the ex-State of Mayurbhanj and had taken the defendant to live with him and had given his education. Upon Padma Charan's death the defendant also got into service and had been regularly sending money to the plaintiff for her maintenance. Padma Charan had left instructions that the plaintiff would execute a deed of acknowledgment of adoption and accordingly on 21-7-1950 the deed of acknowledgment was executed. The defendant had got himself mutated in respect of the properties of Padma Charan and had been in possession accordingly. The defendant later on representing the branch of Padma Charan filed Title Suit No. 255 of 1959 for partition and obtained a preliminary decree. The plaintiff has now been set up by the brothers of Padma Charan to file the present suit as they are aggrieved by the preliminary decree obtained by the defendant.
4. The trial Court came to find that the defendant was adopted by Padma Charan and had been staying in his "house; Ext. B (7) the registered deed of acknowledgment was a valid one; the plaintiff was not a pardanashin illiterate lady and was bound by her admission in Ext. B (7). On these findings it dismissed the suit.
5. The plaintiff appealed. The learned Appellate Judge has negatived the adoption only on a simple reasoning that a sister's son in a re-generate class cannot be adopted under the Hindu Law. The defendant is in appeal in this Court.
6. Mr. R. C. Mohanty appearing for the appellant contends that the learned Appellate Judge has gone wrong in holding that the parties belonged to the regenerate class and the bar against adoption of a sister's son operated. According to him, in view of the preponderance of evidence in support of adoption and the learned Appellate Judge having not negatived adoption in fact the finding of the trial Court should have been reversed,
7. It is well settled that Karans in Orissa belong to the regenerate class. The legal position is also well settled that a 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. In view of such a clear position in law, so far as this matter is concerned I do not think I shall be justified in taking a view different from what has been adopted in the lower appellate Court. A Karan has been indicated in the Bhasakosh by late Shri Gopal Chandra Praharaj as belonging to the regenerate class. Karans have been equated with Kayasthas and in AIR 1927 Pat 145, Ishwari Prasad v. Rai Hari Prasad, Kayasthas in Bihar have been held to be of the regenerate class. In this Court there is no decision to the contrary, that is, to the effect that a Karan does not belong to the regenerate class. Thus the restriction that sister's son cannot be adopted fully applied to the present case and in view of the conceded position in the written statement that the defendant was the adoptive father's sister's son, the adoption was bound to fail and has rightly been negatived.
8. The Second appeal has no merit and is bound to be dismissed. In the circumstances of this case, I would not saddle the appellant with costs in this Court.