Orissa High Court
Sanatan Behera vs Paramananda Behera And Ors. on 22 December, 1995
Equivalent citations: 1996(I)OLR404
JUDGMENT S. Chatterji, J.
1. The present Second Appeal at the instance of the plaintiff-appellant, Sanatan Behera, is against the judgment and decree dated 16th August, 1989 passed by the learned Additional District Judge, Bhadrak affirming the judgment and decree dated 29-3-1985 passed by the learned Subordinate Judge, Bhadrak in O. S. No. 68 of 1978.
2. The plaintiff instituted O. S. No. 68 of 1978 seeking the relief for partition in the Court of the Subordinate Judge at Bhadrak. It is alleged that the plaintiff and the defendant Nos. 1 to 5 constituted a joint family. According to the plaint case, there are two branches namely, Govinda Behera and Pahali Behera having equal interest in the property. Govinda died leaving behind three sons, Karuni, Basu and Kasi. Kasi is alleged to have deserted the village leaving behind no heir. Defendant No. 1 Paramananda is the son of Basu and defendants 2 to 5 are the heirs of Karuni, Pahali of the other branch left behind two sons, namely, Bhavan and Mani. Plaintiff is the son of Bhavan. Mani, the other son of Pahali had a son named Chema who had married Sana. Chema is alleged to have died issueless. The plaintiff claims to have succeeded to the share of Pahali's branch and claims half interest in the suit property. Saria who was married to Chema left the village and got married to one Jagu and gave birth to two sons, namely, defendants 6 and 7. According to the plaintiff Jagu was staying in the house and had no interest in the property. Defendants 6 and 7 are alleged to have been affecting the rights of the plaintiff and they were trying to deal with the property independently and accordingly, the plaintiff was compelled to file the suit for partition.
3. Defendant No. 1 does not contest the claim for partition and concedes that if there is a partition a lawful share as he is otherwise entitled, be allotted to him.
4. Defendants 2 to 5 claim 1/4th interest in the suit property and prayed for allotment in case of partition.
5. Defendants 6 and 7 had really contested the suit by filing a comprehensive written statement 1 indicating, inter alia, that their father Jagu was adopted by Mani and they are sons of Jagu and they have succeeded to the interest of Mani and, therefore, they are entitled to 1/4th share in the entire suit property.
6. The learned trial Court has framed the following issues :
(1) Has the plaintiff any cause of action to sue ?
(2) Is the suit maintainable in its present form ?
(3) Is Jagu Behera the father of defendants 6 and 7 the adopted son of Mani ?
(4) Whether defendants 6 and 7 have any right, title and interest in the suit property ? (5) Whether the defendants 6 and 7 prescribed title by adverse possession over any part of the suit land ? (6) What are the shares of the parties ?
(7) To what relief, plaintiff is entitled to ?
7. The learned trial Court held in view of the evidence on record that Jagu Behera was, in fact, adopted as the son by Mani. Accordingly it was concluded that Pahali's half share was devolved on Bhavan and Mani who having equal interest therein and, therefore, the plaintiff is entitled to 1/4th interest and defendants 6 and 7 would be entitled to 1/4th interest also.
8. The plaintiff, being aggrieved, preferred an appeal before the appeal Court below. The appeal Court dismissed the appeal by affirming the judgment of the learned trial Court.
9. Being aggrieved by and dissatisfied with the judgment of both the Courts below, the plaintiff has visited this Court by preferring the present Second Appeal.
10. Mr. D. Mishra, the learned lawyer appearing on behalf of the appellant had mainly argued that the story of adoption as claimed by defendants 6 and 7 cannot be supported in law. He has developed his argument in two-fold ways as follows :
(i) Jagu who was admittedly 22 years of age could not have been taken in adoption by Mani and, therefore, the adoption is null and void; and
(ii) Assuming for the sake of argument that Jagu might have been taken in adoption, the essential and mandatory ceremonies of adoption, like giving and taking and "DATTA HOMA" having not been done, the adoption is invalid and illegal and an analysis of the evidence by the Courts below in this regard on the scope of ancient adoption is incorrect.
Mr. Mishra has relied on Articles 474 and 480 of Mulla's Hindu Law. He has emphasised that in both the Articles there is a reference of "boy" to be given in adoption. He has farther emphasized that "boy" normally recorded as a male child and the "boy-hood" continues till the age of attaintment of puberty. Under the Benaras School of Hindu Law, as applicable to the State of Orissa, a boy can be given adoption before Upanayan ceremony. He has referred to a case reported in AIR 1960 Calcutta 597 (Sukdeo Sabi and Ors. v. Kapil Deo Sing and Ors.) holding, inter alia, that an adoption has to take place before Upanayan. The attention of the Court is drawn to me passage quoted in the said decision from ILR 9 Allahabad 254 (Ganga Sahai v. Lekhraj Singh) that according to Hindu Law as observed by the Benaras School, the ceremony of Upanayan, representing as it does the second birth of a boy and the beginning of his education in the duties of his tribe or Gotra, is also the ultimate limit of time when a valid adoption in Dattaka form can take place. Mr. Mishra has relied upon the observation made in Ganga Sahai's case (ILR 9 Allahabad 254) (supra) that a man of 22 years' age as Jagu was at the time of adoption as per the admitted evidence on record could not have been adopted. Law does not permit a person of 22 years of age to be adopted. Attention of the Court has been drawn to various aspects of adoption, Upanayan, in the cases of Brahman and Khyatriya and with regard to the other casts as considered in the aforesaid decision by appreciating the verses of Manu in the Vedic text. Manu, according to Mr. Mishra, constituted the best authoritative on the conception of Hindu jurisprudence as to the origin of four classes of mankind. He has also quoted Mayne's Hindu Law that the age of the boy is only material as determining the time at which the Upanayana may be performed. A result which stands to reason, because if the second birth has already taken place in the natural family, it would be a violation of the legal fiction itself to say that the same second birth takes place again in the adoptive family. He was also drawn the attention of the Court to the conclusion of Sir Thomas Strange speaking of adoption that where a child not related by blood is to be adopted as may be the case where one so related is not to be had, it may be consistent to depend for the confirmation of the tie upon the performance of the initiatory rites in the adopting family by means of which the adopted is considered to be in effect born again, thus becoming more essentially the son of his adopting parent; a conclusion that appears the more forcible, considering that the Upanayan is the appointed season for the commencement of his education.
11. Mr. Mishra has drawn inspiration from another decision reported in 72 (1923) Indian Cases 230 (Raja Mukunda Dev v. Shri Jagannath Jenamani) where the case of Ganga Sahai was taken into consideration. He has also referred to a case reported in ILR 5 Patna 777 (Chandreswar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh) holding that a boy more than five years could be adopted and as in that case the boy was little more than five years. Therefore, no analysis in regard to the age of Upanayan was mentioned. In a little discourse Mr. Mishra has referred to the note of Colebrooke to Dattaka Mimansa indicating the primary period for Upanayanas for Brahman is 8th, Kshatriya 11, Vaisya 12. It is, however, mentioned that it can be delayed till the age 22 and 24 in cases of Kshatriya and Vaisya respectively. Two periods--the initial period and the other period have been termed as primary period and secondary period. In Golap Chandra Sankar Sastri's book "Hindu Law of Adoption" (page 359) the author has recorded that while dealing with limitation from age and the performance of initiatory ceremonies there is reference of age for Upanayan of Brahmans, Kshatriyas and Vaisyas. The main spirit of the argument of Mr. Misra is that if the mandate of Dattaka Chandrika and the principles laid down in Ganga Sahai's case are harmoniously read, the conclusion would follow that after Upanayan adoption is not permissible and the Upanayan ceremony has to take place in the primary season. If initiation to the education of the class is accepted, the concept of primary season becomes rationally consonant and the limitation from age can be understood to have been accepted at the primary season.
12. Applying this principle to the facts of the present case Jagu cannot be adopted at the age of 22 years. Besides in the case of adoption there has to be giving and taking ceremony. There has to be transfer of adoptive boy by ceremony of giving and taking and the same is very much essential. In AIR 1961 SC 1378 (Lakshman Singh Kothari v. Smt. Rup Kanwar) it has been held that the requirement of law is that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. This view had also been reiterated in the later decision reported in AIR 1983 SC 114 (Madhusudan Das v. Smt Narayani Bai and Ors.). Mr. Mishra has painstakingly referred to certain material evidence and pointed out that the appreciation of both the Courts below as to the conclusive nature of adoption is not supported by law. The reading of the evidences and the inferences drawn as to adoption is not permissible in law. Such concurrent findings are vitiated as the real position of law has not been correctly appreciated and the inference by this Court in the Second Appeal is very much required. Mr. Mishra has submitted that the evidence should be free from suspicion and should be consistent and probable and the fact of adoption has to be proved in the same way as in other facts. He has drawn inspiration from the judgment reported in AIR 1859 SC 504 (Kishori Lal v. Mt. Chaltibai) and in AIR 1964 SC 136 (A. Raghavamma and Anr. v. A. Chenchamma and Anr.). There is submission for setting aside the decision of both the Courts below accordingly.
13. Mr. Nayak, the learned Advocate appearing for the contesting respondents supports the judgment of both the Courts below. He points out, inter alia, that the case of the defendants 6 and 7 is that Jagu was adopted by Mani in the year 1931. By virtue of such adoption defendants 6 and 7 have 1/4th interest and both the Courts below have decided accordingly. He has mainly relied on a case reported in 131 Indian Cases 289 (Kanhaya Lal v. Devidas Jagannath and Anr.) wherein it has been found that the High Courts in India and many of the Modern Text Writers have agreed that the Hindu Law imposed no restrictions as to the age, whatever be the age of adoption of son. It is now well settled that the adoption is valid if it is made before Upanayan provided the adoptee belongs to any of the regenerated classes. Adoption is also valid before marriage if he does not belong to Brahmin or Kshatriya or belongs to Sudra caste. The only text restricting the age is 'Kalika Purana'. But its authenticity is doubtful. None of the modern text writers place any reliance on the five years limit or there is no valid authority limiting the age at all. Even the performance of Upanayan ceremony in the family of the natural father is no bar for subsequent adoption. It has been concluded that the Upanayan ceremony even in case of Kshatriya may be performed as late as 22nd years of age for valid adoption. Mr. Nayak has emphasized that in the facts and circumstances of the present case, there is no age bar as the family belongs to 'HANSI' by caste. Attention of the Court has been drawn to Ext. C. 'HANSI' according to him is neither Brahmin nor Kshatriya. Upanayan is not criterion for them for indication of any age for adoption. He has taken this Court to the admitted facts of the case that Jagu was adopted by Mani and the adoption had taken place in the year 1931. The same was questioned in 1978. It is almost an ancient adoption and sufficient evidence has been proved and this admission of the plaintiff is as to the shares of the sons of Jagu. Regarding convincing nature of evidence and/or the presumption arising therefrom have been high-lighted. He has referred to the evidence of DW 3 and also the evidence of PW 3 wherein he has admitted as Jagu to be the son of Mani. He has relied upon the decisions reported in AIR 1976 Ori. 43 (Gouranga Sahu and Ors. v. Bhaga Sahu and Anr.), AIR 1970 SC 1286 (L Debi Prasad (dead) by L.Rs v. Smt. T. ibeni Devi and Ors.) and 78 (1994) CLT 970 (Ashoka Sahu and Anr. v. Bidyadhar Patra (dead) after him his L. Rs. Sara Patra and Ors.) to press the point that the adoption being a finding of fact should not be disturbed in the Second Appeal. Respondenta 6 and 7, as Mr. Nayak points out, have been possessing their father's share after the death of Jagu. Jagu had lost his every right in his natural family and had acquired the right as the son of Mani, and this adoption cannot be disturbed in the manner as challenged by the appellant.
14. Having beard Mr. Deepak Mishra for the appellant and Mr. Nayak for the respondents at length, this Court finds that the only point arises in the Second appeal is whether the adoption of Jagu by Mani has to be accepted or not. Both the Courts below have however, concurrently found that the adoption has been proved and consequently the shares have followed. Mr. Mishra's argument is that if on the point of law, the adoption cannot be sustained, then the consequences will follow automatically and the sons of Jagu cannot have any share in the property. In view of the age factor of Jagu at the time of adoption, it was seriously questioned. Admittedly Jagu was 22 years of age when he was adopted, as the case has been made out. On considering the point of argument advanced on behalf of the respective parties, this Court is of the view that neither the reported decisions as indicated above nor the texts make any bar or impediment for adoption in case of non-Brahmin or non-Kshatriya. Without entering into any controversy it can safely be found that the cause of the parties in the present case does not prohibit any adoption. The reference of "boy" in case of adoption does not limit the concept of adoption in the manner as argued by Mr. Mishra. Regarding giving and taking as TO the case of adoption, material evidences have been discussed by the trial Court and the appeal Court as the final Court of fasts. Considering the reasons assigned by both the Courts below and looking at the materials on record and the evidences, both oral and documentary, this Court is of the view that there is neither any irregularity nor any illegality nor there is any substantive point of law to differ with the concurrent findings of the Courts below. The point raised by Mr. Mishra for the appellant has no merit to upset the decisions of both the Court below and particularly in the facts and circumstances of the case for the foregoing reasons, the Second Appeal fails and the same is dismissed. There would be no order as to costs.