Orissa High Court
Bansidhar Panda vs Aparti Charan Panda (Having Died) ... on 19 June, 2000
Equivalent citations: 2000(II)OLR166
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendant No. 3 is the appellant. Plaintiff-respondent No. 1 (since dead) had filed the suit for declaration of title in respect of 'B' Schedule property and for confirmation or, in the alternative. recovery of possession and for permanent injunction.
2. It is the admitted case of both the parties that one Mandar Panda had three sons, namely Sridhar, Giridhari and Aparti (plaintiff),. According to the plaintiff, the properties described in 'B' Schedule were the separate properties of Sridhar and Lot No. 2 of the said Schedule had been acquired by Sridhar in the name of his wife, Sara Dei. The wife and son of Sridhar had pre-deceased him and after the death of Sridhar in the year 1971, the plaintiff being the brother succeeded to the property in preference to defendant No. 1, the daughter of Giridhari and defendant No. 3, the son of defendants 1 and 2.
3. Defendants 1 and 3 in their joint written statement while not specifically challenging the genealogy given in the plaint claim that defendant No. 3 being the adopted son of Sridhar had succeeded to the property. At the stage of adducing evidence, the defendants sought to prove that Draupadi (defendant No. 1) was the daughter of Sridhar and not of Giridhari. It was also pleaded that Lot. No. 2 in Schedule 'B' was the "Stridhan" property of Sara Dei, wife of Sridhar.
4. The trial Court found that Draupadi was the daughter of Giridhari and Lot No. 2 was the "Stridhan" property of the wife of Sridhar. The trial Court, however, held that though defendant No. 3 had been adopted by Sridhar, such adoption was invalid as Sridhar could not have adopted the son of his brother's daughter. The trial Court held that D.W.4 being the sister of deceased Sridhar was entitled to succeed to half of the properties left by Sridhar and the plaintiff was entitled to succeed to the balance half. Accordingly, the trial Court decreed the suit in part in respect of all the properties except Lot No. 2, which, according to the trial Court being the "Stridhan" property of Sara Dei, did not devolve upon the plaintiff.
5. Defendant No. 3 has challenged the decision of the trial Court on the ground that his adoption by Sridhar should have been accepted. Defendant No. 1 has filed Cross-Objection and prayed that the suit should also be decreed in respect of Lot No. 2 of Schedule 'B'.
6. The main question before the trial Court as well as in this Court relates to the question of adoption of defendant No. 3 by Sridhar. Though the trial Court found as a fact that defendant No. 3 had been adopted by Sridhar, it held that such adoption was illegal as Sridhar could not have adopted the son of Draupadi as he could not have married Draupadi during her maidenhood. Such a conclusion of the trial Court is challenged by the appellant on the ground that the law relating to "Virudha Sambandha" is confined to adoption of daughter's son, sister's son and mother's sister's son and could not have been extended to the adoption of son of a neice. Learned counsel for the plaintiff-respondent while supporting the proposition of law adopted by the trial Court has, in course of argument, challenged the factum of adoption.
7. Before considering the question of law relating to "Virudha Sambandha", it is necessary to consider as to whether defendant No. 3 had actually been adopted by Sridhar, as such adverse finding has been challenged by the plaintiff-respondent in course of hearing of the appeal. Though plaintiff-respondent has filed Cross-Objection challenging the adverse decree in respect of Lot No. 2, in the memorandum of such Cross-Objection, he has not specifically challenged the finding of the trial Court that defendant No. 3 had been adopted by Sridhar. However, the law is well settled that even though a Cross-Objection is not filed formally, a respondent while supporting the decree can challenge the correctness of an adverse finding. Learned counsel for respondent No. 1 contended that the evidence adduced on behalf of the defendants relating to adoption being discrepant should not have been accepted. There is no doubt that there is some discrepancy in the evidence adduced on behalf of the defendants relating to adoption. However, the discrepancies do not go to the root of the matter so as to negative the conclusion of the trial Court on this aspect. One should not lose sight of the fact that the witnesses were deposing in Court after about 25 to 26 years and some discrepancies are bound to occur due to lapse of memory on account of passage of time. Apart from the oral evidence of other witnesses including -the priest, the defendants have relied upon the evidence of D.W.4, the sister of Sridhar, as well as the plaintiff. The evidence of D.W.4, a common relation, assumes more importance particularly, in view of the fact that D.W.4 would have otherwise benefited if the adoption is negatived. As such, the statement of D.W.4 about the adoption of defendant No. 3 by Sridhar being against her own interest can be considered to be an admission. Moreover, the relevant entry in the School Admission Register of the year 1962-63, marked as Ext. F, indicates Sridhar Panda as the father of defendant No. 3. This document prepared by independent authorities at a time when there was no dispute is significant. Learned counsel for the plaintiff-respondent submitted that the name of Sridhar Panda has been shown in the column relating to 'Father or Guardian' as such, no inference should be drawn that Sridhar Panda had been described as the father of Bansidhar Panda. The column relates to "father, and if the father is not alive, the nearest relative in charge, recognised by the Headmaster as the responsible guardian". Admittedly, the natural father of defendant No. 3 (present defendant No. 2) was available and as such, there is no reason as to why his name should not have been indicated as the "father" of Bansidhar Panda. There is also no apparent reason as to why Sridhar Panda would be shown as the guardian. Moreover, under the columns relating to "place of residence of the boy during the school term", it has been mentioned "home with parents", meaning thereby Sridhar. Thus, Ext. F clearly indicates that not only Bansidhar Panda was staying with Sridhar Panda, he had been described as son of Sridhar Panda long before any dispute had arisen between the parties. Such unimpeachable document clearly corroborates the other materials on record relating to adoption. Thus, the conclusion of the trial Court that defendant No. 3 had, in fact, been adopted by Sridhar appears to be correct.
8. The next important question is as to whether such adoption was valid. The trial Court has referred to paragraph 480 of Mulla on Principles of Hindu Law and come to the conclusion that defendant No. 3 being the son of Draupadi, the neice (brother's daughter of Sridhar), such adoption cannot be valid, as Sridhar could not have married Draupadi. In the very paragraph of Mulla on Principle of Hindu Law relied upon by the trial Court, it has been indicated that the said rule has been restricted in many recent cases to the daughter's son, sister's son and mother's sister's son. The orthodox view of Mulla's Hindu Law that no one can be adopted whose mother in her maiden state the adopter could not have legally married, has gradually been eroded in course of time and the Courts have come to recognise that the bar contemplated in some of the Texts/Shastras of Hindu Law is confined to adoption of daughter's son, sister's son and mother's sister's son. This is clear from several decisions including that reported in AIR 1962 Supreme Court 351 (Abhiraj Kuer v. Debendra Singh); AIR 1960 Mysore, 147 (Sangannagouda, minor by guardian natural father Shivasangangouda v. Kalkangouda and Anr.); AIR 1962 Supreme Court, 356 (Goswami Shree Vallabhalalji v. Goswami Shree Mahalaxmi Bahuji Maharaj and Anr.); AIR 1985 Rajasthan 55 (Damodar Lai v. Lalli Lai and Ors.) and paragraph 480 of Mulla's Hindu Law. The learned counsel appearing for the plaintiff-respondent could not cite a single decision either of this Court or of any other Court where the adoption of the son of brother's daughter has been held to be invalid. Since the prohibition of "Virudha Sambandha" has been confined to adoption of daughter's son, sister's son and mother's sister's son, adoption of brother's daughter's son can be held to be valid. As such, differing from the conclusion of the trial Court, it is found that defendant No. 3 had been validly adopted by Sridhar and as such, he is to succeed to the property of Sridhar. In view of the aforesaid conclusion, the appeal is bound to succeed and the suit of the plaintiff-respondent is to be dismissed.
9. In the result, the appeal is" allowed and the Cross-Objection of defendant No. 1 is rejected and plaintiff's suit is dismissed in toto. Parties are directed to bear their own costs throughout.