Orissa High Court
Suma Bewa And Ors. vs Kunja Bihari Nayak And Ors. on 14 May, 1997
Equivalent citations: AIR1998ORI29, AIR 1998 ORISSA 29, (1998) 1 MARRILJ 446
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. The defendants are in appeal in a suit for partition filed by the plaintiffs-respondents.
2. Plaintiff No. I Kunja Bihari Nayak and deceased-respondent JudhistirNayak are brothers being the sonsof late Radhu Nayak. The plaintiffs' case is that plaintiff No. 1 and Judhistir, the deceased-defendant were two brothers and the suit properties are their ancestral joint family properties. They have been recorded as such in the present settlement record of rights with a note of possession in favour of plaintiff No. 2, the daughter of plaintiff No. 1 on the basis of a sale deed/gift deed executed by plaintiff No. I in her favour. The present defendants are the legal heirs and have been substituted in place of deceased-defendant Judhistir, on his death. The plaintiffs filed the suit for partition of his 8 annas share. The defendant No. 1 having disputed prior amicable partition and consequential possession and having refused the demand of partition, the suit. The deceased-defendant Judhistir and after him the defendants contested the suit inter alia on the ground that defendant No. 3 who is the natural bom son of deceased-defendant No. I is the adopted son of plaintiff No. 1 and that suit plot No. 1066 measuring Ac. O.09 decimals exclusively belonged to the deceased-defendant No. 1 and not liable for partition. The other suit properties belonged to plaintiff No. I, defendant No. 2 and other defendants inasmuch as the plaintiff No. 2 has no right, title and interest over the suit properties and that the deceased-defendant Judhistir had incurred a huge loan to meet the marriage expenses of plaintiff No. 2, which was repaid by him and his son Balaram. The plaintiffs taking advantage of the fact that there was no deed or any other document evidencing adoption of defendant No. 3, are trying" to deprive him of his ligilimate share.
3. The learned Additional Subordinate Judge, Cuttack who tried the suit, framed six issues as under:
1. Whether the suit is maintainable ?
2. Whether the suit properties are to be partitioned giving half share to the plaintiffs ?
3. Whether the suit has been properly valued ?
4. Whether there was an amicable partition of the suit property between the parties concerned ?
5. To what relief, if any, the plaintiffs are entitled to ?
6. Whether Sribaschha Nayak (deft. No. 3) is the adopted son of plaintiff No. 1 ?
Issue Nos. 2 and 6 were tried together and the trial Judge held that defendant No. 3 is not the adopted son of plaintiff No. 1 and that plaintiff No.l and defendants are entitled to half share each in the suit properties. The other issues are answered in the affirmative.
4. Sri Manmohan Sahu, learned SeniorCounsel appearing on behalf of the appellant contends that the findings of the learned trial Court on issue Nos. 2 and 6 in holding that the suit properties are liable for partition and that defendant No. 3 is not the adopted son of plaintiff No. 1, is erroneous in law and contrary to the evidence on record. The learned counsel further submits that the subordinate Judge having not given any finding as to the nature of disputed plot No. 1066 corresponding to present settlement plot No. 1070 specifically claimed by the defendants to be their separate property, the judgment and decree passed by the court is liable to be set aside, inasmuch as, the properties involved in the suit were not ancestral properties of the parties and as such was not liable to be partitioned. Referring to the evidence of the witnesses namely the natural mother of defendant No. 3 as D. W. 3, the learned counsel submits that the natural mother having categorically stated that she had given her son in adoption to plaintiff No. 1 and plaintiff No. 1 having accepted the child and the other witnesses having proved the factum of adoption and the ceremonies and rituals, physically giving and taking of the adopted child, etc. the trial court ought to have held that the adoption has been proved.
5. Let me now consider the evidence adduced by the parties with regard to the adoption of defendant No. 3 by the plaintiff No. 1. Admittedly, plaintiff No. I and Judhistira, the deceased-defendant No. 1 are brothers and defendant No. 3 is the natural bom son of late Judhistira. It is fairly admitted at the bar that the burden of proving adoption lies with the party, who claims such adoption and as such the defendants are required to prove adoption. D. W. 1 is the defendant No. 2 and son of late Judhistira, who has stated in his evidence that defendant No. 3 is the natural son of Judhistira, but he has been given in adoption to plaintiff No. 1 as his son. The adoption ceremony took place on the Akhi Turtiya day of 1974. It is his evidence that plaintiff No. 1 came and requested his father to give Sribaschha in adoption lo him as he has no son and the parents agreed to give Sribaschha (defendant No.3) in adoption to plaintiff No. 1. He has further stated that on Akhi Turtiya day of 1974 the mother handed over Sribaschha to his father whereupon his father handed over Sribaschha to plaintiff No. 1. In the evening Satyanarayana Puja was performed and the Priest biassed Sribaschha. The old name of defendant was retained. He has further stated that at the time of adoption Sribaschha was only 9 years old and from the date of adoption defendant No. 3 resides with plaintiff No. 1. His statement is that their relations including the husband of Sabitri and Sabitri were invited to the adoption ceremony. In cross-examination, defendant No. 2 has stated that he cannot say if the name of the father of Sribaschha (defendant No. 3) has been altered in the school admission register after he was given in adoption to plaintiff No. 1. He admits that in the voters list, Sribaschha has been described as the son of Judhistira Nayak and Sribaschha serves in the Life Insurance Corporation of India, Cuttack Branch on temporary basis. He has denied the knowledge if service register of Sribaschha describes him as the son of Judhistira. He has further stated that he does not know the week day on which the adoption ceremony was performed. He has further stated that he cannot say the names of the neighbours who had attended the adoption ceremony. Defendant No. 2 further states that Gobinda Mishra was the priest in the adoption ceremony, but he is dead. One Nilamani Satapathy had performed Satyanarayana Puja in the adoption ceremony but no astrologer attended the ceremony. He has further stated that one Muna Bank attended the adoption ceremony in his professional capacity, although he is not the barber of his family. D. W. 2 is one Nilamani Satapathy, who claims to be ihe family priest of Judhistira Nayak and Kunja Bihari Nayak has spoken about the Satyanarayana Puja and the adoption. The second statement of this witness is that on the Akshaya Trutiya day of 1974, Satyanarayana Puja was performed in the house of Yudhistira Nayak and Kunjabihari Nayak and when Satyanarayana Puja was started, Kunja Bihari asked Yudhistira Nayak to give one of his sons in adoption lo him, whereupon Yudhisthira Nayak told Kunja Nayak that he would give his youngest son Sribaschha in adoption. He has further stated that Yudhisthira Nayak handed over Sribaschha and Kunja Bihari Nayak in turn accepted Sribaschha. It is relevant to note that Sribaschha (defendant No. 3), who is alleged to have been given in adoption is aged 9 years on the date when adoption ceremony took place. In cross-examination, he has stated that after the adoption ceremony of Sribaschha, he has not visited the house of parties. However, he again said that he went to the house of parties when Judhisthira Nayak died. He denied his knowledge about the relations of the parties, who attended the Sudhi ceremony of Judhistira. He further states that since no astrologer was called to the adoption ceremony the question of preparation of his horoscope did not arise. This witness states that Gobinda Mishra (since dead) acted as associate priest, but he was the chief Priest. At this stage, the evidence of D.W. 1 in this respect may be noted. In his cross-examination, defendant No. 2 as D.W. 1 has categorically stated that one Gobinda Mishra was the priest in the adoption ceremony but he is dead. But one Nilamani Satapathy had performed the Satyanarayana Puja in the adoption ceremony. Thus, the evidence of this witness is in conflict with the evidence of D. W. I D.W. 3 is Bayani Bewa, widow of late Judhisthira Nayak and natural mother of defendant No. 3 Sribaschha. She has also stated that on the date of adoption, Sribaschha was 9 years old. It is her statement that when plaintiff No. 1 Kunja requested her several times, she gave her son Sribaschha in adoption to Kunja. On account of repeated requests, she and her husband gave away Sribaschha in adoption to Kunja. She stated that when Sribaschha was 9 years old, the adoption ceremony was performed in the month of Baisakha on Akhi Truliya day. On the day of adoption, in the morning hours Kunja approached Judhistir to give Sribaschha in adoption to him. Then two priests namely Nilamani Nana and Govinda Nana were called. In the evening hours, both the parties prepared Asthana, then the priests directed them to get Sribaschha to the Asthana. Then Kunja requested her and Judhisthira to give Sribaschha to him in adoption. Thereafter handed over Sribaschha to her husband Judhisthira approving the proposal. Then her husband Judhisthira handed over Sribaschha to Kunja and declared mat he has given Sribaschha in adoption to Kunja. It is her statement that their friends, neighbours and relations attended the adoption caremony. However, she stated in cross-examination that all the neighbours who were present at the adoption ceremony are dead and that there are 500 to 600 persons in Samadhipatna basti. In paragraph 10 of the cross-examination, it is the evidence that the suit properties have not been partitioned among the parties by metes and bounds.
6. Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record. The Apex Court in Rahasa Pandiani v. Gokulananda Panda's case reported in AIR 1987 SC 962 observed at para 4 thereof -
"Before we advert................................. then the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremaly alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the Same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.
In the case at hand, admittedly there is no document executed by the parties in support of the alleged adoption. The defendants who claim that the defendant No. 3 was the adopted son of plaintiff No. 1, have not proved any contemporaneous document recording the name of defendant No. 3 as the son of the plaintiff No. 1. The defendant No. 3 is admittedly working as a peon in the Life Insurance Corporation of India, Branch Office at Cuttack, no document has been produced to show the name of the adoptive father has been recorded in the service book or elsewhere. In the voters' list indicates the name of the natural father. The oral evidence as discussed earlier is not free from doubt and the circumstances are suspicious. No independent witness has been examined to prove the adoption ceremony. Not a single neighbour has been examined even to say that the plaintiff and defendant No. 3 were father and son and were remaining as such and addressing each other accordingly.
7. In that view of the matter, the plea of adoption has to be rejected out right. The learned Subordinate Judge has therefore rightly disbelieved the plea.
8. Now coming to the next submission of the learned counsel for the appellant that the trial court having not considered the case of separate status and possession of plot No, 1956, corresponding to Hal Settlement Plot No. 1070, it is to be noted that there is nothing in the evidence of the witnesses that the aforesaid suit plot has been claimed to be the exclusive property of the defendant. The evidence of D.W. 1, who is the defendant No. 2 and D.W. 3, also does not disclose any statement claiming the property to be the self-acquired property of Judhisthira or that the defendants are in possession thereof and the source of the title. The suit properties are described in Schedule-A. There is no plot as Plot No. 1066 in the plaint Schedule-A. The written statement does not disclose the Khata No. of Plot No. 1022 inasmuch as there is no such suit plot under Schedule-A. In view of the fact that such a plot No. 1066 is not the subject matter of the suit nor a suit schedule property and as there is no evidence with regard to such property, the learned trial court was not required to deal with such laim and no exception can be taken for non-consideration of such a plea. Further, the present claim with regard to Plot No. 1066, is for the first time raised in the present appeal. In that view of the matter, the contention raised in that regard has to be negatived.
In the result, the appeal fails and is thus dismissed. But in the facts and circumstances of the case, the parties are to bear their own expenses of the appeal.