G.K. Misra, C.J.
1. Plaintiff's case may be stated in short. The disputed properties of 7.69 acres and 5.40 acres which are not the subject-matter of the suit belonged to Agadhu Padhan who died in 1038 leaving behind him his widow Bhanu who died in 1955 and four daughters Chitra (plaintiff), Srimati (defendant No. 1); Kesiri (defendant No. 2) and Ketaki (defendant No. 5). Defendant No. 2 lived with Bhanu with her husband and children as she was poor. After Bhanu's death, the aforesaid 5 acres and odd were partitioned amongst the four daughters but the disputed properties had not been partitioned. Plaintiff's husband was in management of the disputed properties. There was a proceeding under Section 145, Cr. P. C. in M. C. Case No, 198 of 1963 between the husband of the plaintiff on one side and defendants 3 and 4 on the other It terminated in favour of defendants 3 and 4 by an order (Ext. G) on 3-1-1964. In that proceeding it was disclosed for the first time by defendants 3 and 4 that defendant No. 3 had been adopted by Bhanu in 1948. The suit for partition was filed on 24-1-1964. The adoption of Sribataa (defendant No. 3) by Bhanu and Bhanu having authority to adopt from her husband were denied. The suit is for partition of the disputed properties and allotment of 1/4th share thereof to the plaintiff. Defendant No. 1 filed a written statement supporting the plaintiff's case.
Defendant No. 5 supported the case of defendant No. 2. Defendants 2 to 5 took up the same defence that defendant No. 3 was adopted by Bhanu on the basis of an oral authority to adopt given by Agadhu in favour of Bhanu. In the written statement of defendants 2 and 5 the alleged adoption was stated to be in the year 1948 while in the written statements of defendants 3 and 4 the date of adoption was given, as the Akshyatrutiya day in 1947.
The suit was dismissed by the Additional Subordinate Judge on the finding that defendant No. 3 was duly adopted by Bhanu who had the authority to adopt. Plaintiff's first appeal was dismissed by our learned brother B. K. Ray, J. who affirmed the findings of the learned Subordinate Judge on both the points. Against his judgment this A. H. O. has been filed.
2. Mr. Sinha for the appellant challenges both the findings. It is to be noted that though the appeal before us is a second appeal, yet it is to be decided on the footing that this is a first appeal. In other words, we are at liberty to assess the evidence afresh and are not bound by the concurrent findings of the two courts. This is concluded by a Bench decision of this Court in (1973) 1 Cut WR 809 = (AIR1974 Orissa 120) (Jagabandhu Senapati v. Bhagu Senapati). It is, however, to be emphasised that though the concurrent findings are not binding on us, we would foe slow to disturb such findings unless we are satisfied that they cannot stand on a reasonable assessment of the materials on record.
3. We would first examine whether there was adoption of defendant No. 3 by Bhanu. The onus is heavy on defendant No. 3 to prove adoption as the natural line of succession is displaced thereby. D.Ws. 1 to 3. 6 and 7 deposed the factum of giving and taking. Defendant No. 4 (D.W. 1) is the natural father of defendant No. 3. He deposes to the fact of giving and taking. He handed over defendant No. 3 to Bhanu who accepted him as a son to her husband on Akhayatrutiya day of 1947. All the daughters of Bhanu were present at the ceremony. A year after the adoption. Bhanu executed a power of attorney (Ext. F) on 2-7-48 in favour of Kalu Choudhury (P.W. 6), husband of the plaintiff. He was to look after the properties of Bhanu under this document. In the plaint itself it is admitted that he was in charge of management of the properties of Bhanu. On the 3rd of July, 1948 two documents were registered. Ext. A is a registered Will executed by Bhanu in favour of her four daughters whereby 5.40 acres of Land were given to them. On 2-7-1948 a deed of adoption was executed wherein the factum of adoption and authority to adopt were referred to. These documents will be dealt with at the appropriate stage later. D.W. 2 younger brother of Nilamani Padhan (D.W. 7) also speaks of giving and taking ceremony at the time of adoption. D.W. 3 corroborates the evidence regarding the factum of giving and taking. Satyabadi Kavi (D.W. 6), husband of defendant No. 5, also speaks of the adoption and giving and taking and so also D.W. 7 who is distantly related to Bhanu. The evidence of these witnesses who were present at the time of giving and taking ceremony has been critically examined by the learned Subordinate Judge and the learned Single Judge. Mr. Sinha took us through the evidence of these witnesses and after having heard him we find no sufficient reasons to take a different view.
Much emphasis was made of the fact that in the proceeding under Section 145, Cr. P. C. as well as in the written statement of defendants 2 and 5 there were statements that the adoption was in 1948 though the positive defence in the written statements of defendants 3 and 4 and in evidence is that it was on Akhayatrutiya day of 1047 when the giving and taking ceremony took place. In the proceedingunder Section 145, Cr. P. C. the factum of adoption was referred to for historical purposes as to the origin of the title. It had no bearing on the question in issue as to who was in possession of the lands on the date of the preliminary order. The registered deed of adoption was in fact executed on 3-7-48. There is, therefore. nothing unusual in referring to adoption in the year 1948 in Ext. G.
Defendants 2 and 5 filed their written statement on 2-5-1964 while two written statements were separately filed by defendants 3 and 4 on 13-5-64 -- 11 days after. The Advocates appearing for defendants 2 and 5, and 3 and 4 were different. In the written statements of defendants 2 and 5 adoption is stated to be in the year 1948 while in the written statements of defendants 3 and 4 it is clearly mentioned to be on the Akhayatrutiya day of 1947. During hearing, when these matters were brought to our notice we were little surprised as to why two different sets of written statements were filed on behalf of defendants 2 to 5 though they had a common case. Possibly, defendants 2 to 5 were advised that they should file a separate written statement so as to avoid any comment that defendant No. 5 sails with defendants 2 to 4. We confess that we have not been able to obtain any reasonable explanation but we are satisfied that the advocate for defendants 2 and 5 was careless and did not properly carry out the instruction given by defendant No. 4 at the time of drafting of the written statement. As the deed of adoption was of the year 1948 the Advocate for defendants 2 and 5 did not take care to be vigilant in giving the date of adoption in 1947. It is only eleven days after, defendants 3 and 4 filed two different written statements making clear averments that the adoption took place on the Akhayatrutiya day of 1947. Our, learned brother B. K. Ray, .J. accepted the explanation that sometimes 1948 was stated as the year of adoption because there was a registered deed of adoption of that year. Taking an overall picture of the entire evidence we endorse that view. The witnesses to the execution of Ext. B are clear. On the plaintiff's side there is merely a denial of the factum of adoption and the ceremony of giving and taking. Plaintiff did not pledge her testimony that she was absent on the date of adoption.
4. There are certain broad circumstances which support the case of adoption. Admittedly, by the date of adoption plaintiff, defendants 1 and 5 had no sons. Defendant No. 3 was the only child whom Bhanu could have adopted. Moreover, defendants 2 to 4 were living with her ever since the marriage of defendant No. 2. As natural with Hinduladies, Bhanu would like to adopt & son to give Pinda to her husband and herself. It is, therefore, in the fitness of things that Bhanu would like to adopt defendant No. 3 and the other three daughters would agree to such adoption by the mother.
Bhanu was also fair in her dealings. She retained 7.69 acres for the adopted eon and bequeathed 5.40 acres under the Will (Ext. A) to be divided amongst the four daughters. This was the most natural and reasonable arrangement that Bhanu did. It is the admitted case of the plaintiff that the lands covered by Ext. A were divided amongst the four daughters. That means Ext. A was acted upon. In Ext. A there is a recital about the factum of adoption and the authority to adopt. Plaintiff's husband P.W. 6 is a signatory to this document. As the originals of Exts. F, A and B have been lost, the certified copies were accepted. Taking advantage of the loss of original, P.W. 6 denied his signature on these three documents. But D.W. 7 who is admittedly an attestor to all the three Exhibits clearly states that P.W. 6 attested Exts. A and B. Despite the criticism that D.W. 7 is related to defendant No. 4 we are inclined to accept his evidence as he is a respectable witness who was a village teacher at that time.
Strong reliance was placed by Mr. Sinha on Exts. 1 to 4 as belying the case of adoption. Ext. 1 is the Admission Register wherein under the column 'Guardian' the name of the natural father defendant No. 4 has been noted. By the date of the entry defendant No. 4 was the only senior male member residing with Bhanu who was an old, illiterate and Purdanasin lady and must have been the guardian of defendant No. 3. As defendant No. 4 has not been described as the father of defendant No. 3 it does not go against the story of adoption. Similarly, the name of defendant No. 4 finds place in the Admission Register of another school (Ext. 3). The column under which the name occurs is meant for either the father or the guardian. As defendant No. 4 was the guardian, this entry also does not go against the case of adoption. Ext. 4 is a duplicate School Leaving Certificate granted to defendant No. 3 by D.W. 7 wherein defendant No. 4 has been described as the father of defendant No. 3. D.W. 7 furnishes an explanation that there is no separate column in the certificate for guardian. Consequently, under the only column wherein father's name occurs, the name of defendant No. 4 was entered. The explanation does not appear to be absurd so as to be discarded. At any rate, it appears from Ext. D, an application filed by defendant No. 4 for admission of defendant No. 3, that the father'sname was given as late Agadhu Padhan. Ext. 4 cannot be given much importance in face of Ext. D even if the explanation of D.W. 7 is not accepted as satisfactory. It is not necessary to refer to other evidence which has been elaborately discussed by the courts below. It will be sufficient to say that the main attack of Mr. Sinha lies in the fact that the recitals in Exts. A, B and G and the evidence of D.W. 7 clearly show that the giving and taking ceremony took place on the day Ext. A was executed and not on the Akhayatrutiya day of 1947 as is presented by other evidence. Though the criticism is not altogether without force, for reasons discussed we are inclined to accept the view taken by the learned Single Judge that the giving and taking ceremony took place on the Akhayatrutiya day of 1947 and the documents were executed 1.1/2 years thereafter and some confused statements made by D.W. 7 and the recitals in Exts. A, B and G merely refer to the date of deed of adoption in 1948. We accept the concurrent finding that defendant No. 3 was duly adopted by Bhanu on the Akhayatrutiya day of 1947.
5. The next question for consideration is whether Bhanu had authority from her husband to adopt a son. The recitals in Exts. A and B are to the effect that she had such authority. D.W. 7 also deposed that Bhanu told him that she had authority. The first question for consideration is whether the recitals in the documents are admissible under Section 32 (3) and (7) of the Evidence Act as Bhanu is dead.
6. Sub-sections (3) and (7) of Section 32 run thus :
'32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced without an amount of delay or expense, which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases.
X X X X
(3) When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
X X X X
(7) When the statement is contained in any deed, will or other document which relates to any such transaction as mentioned in Section 13, Clause fa).
X X X X'
7. The statements made by Bhanu in Exts. A and B are to the effect she hadauthority from her husband before his death to adopt a son. The question is whether this statement is against the pecuniary and proprietary interest of Bhanu. We are of opinion that it is not. Though she might have the authority to adopt, she might not adopt in pursuance thereof. It is only on adoption that the adopted son is brought into the family of the adoptive father and the pecuniary and proprietary interest of the widow is thereby affected. After the Hindu Women's Rights to Propetry Act. 1937, on adoption taking place Bhanu and defendant No. 3 would be equally entitled to the property of Agadhu. Thus the statement that she had authority to adopt, unless it ultimately results in actual adoption, does not go against the pecuniary and proprietary interest of Bhanu. The statement is, therefore, not admissible under Section 32(3) of the Evidence Act. Reliance was placed by Mr. Sinha on AIR 1930 PC 79 (Dal Bahadur Singh v. Bijai Bahadur Singh). This decision in clear terms does not say that it is inadmissible under Section 32(3). That aspect was not considered. In that case no weight was attached to the statement as the authority was alleged to have been given long ago and the widow after a lifelong enjoyment of her husband's property desired at the end to pass it into her relations and with that object in view went through the process of adopting her brother's grandson, to effectuate which she was bound to allege authority from her husband That case is, therefore, not an authority for the proposition that it is admissible under Section 32(3) on which their Lordships expressed no opinion.
8. In our view, the statement is admissible under Section 32(7). In order to be so admissible, the statement must be contained in any deed. In this case, the statement is contained both in Exts. A and B. The second condition to be fulfilled is that it must come under Section 13(a) of the Evidence Act.
9. Section 13 runs thus :
'13. Where the question is as to theexistence of the right or custom, thefollowing facts are relevant--
(a) any transaction, by which the right or custom in question was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence then;
(b) particular instances in which the right or custom was claimed, recognised, exercised, or in which its exercise was disputed, asserted or departed from.'
10. The words 'transaction' and 'right' in Section 13(a) are to be liberally construed. In (1901) 29 Ind App 24 (PC) (Dinomoni Choudhrani v. Brojo Mchini Chowdhrani) their Lordships ofthe Judicial Committee while construing the section observed thus:
'These words are very wide.'
A distinction may be pointed out by reference to the language used in Section 32(4) and Section 48 of the Evidence Act. In Section 32(4), the statement would relate to the 'existence of any public right or custom or matter of public or general interest'. In Section 48, the expression used is 'existence of any general custom or right'. In Section 13(a) the word 'right' is not qualified by adjectives like 'general' or 'public'.
A right is asserted when the transac-tion is entered into in exercise of the right. Bhanu asserted the right to adopt. In law she was not entitled to adopt unless she had authority from her husband to adopt. In exercising the right to adopt, she asserted that she had obtained the authority from her husband to adopt. Thus, the statements of Bhanu in Exts. A and B that she had authority to adopt are admissible under Section 13(a). As she is dead and her statements are contained in Exts. A and B, the statements are admissible under Section 32(7).
11. Even though the statement may be admissible, it cannot be acted upon unless it is reliable. A clear distinction must always be borne in mind as to the admissibility of the statement and the reliability thereof. What weight would be attached to such admissible statement would depend upon the facts and circumstances of each ase if such a statement had been made by a person alive, the same is a self-serving statement and is inadmissible unless it comes within any one of the exceptions in Section 21 of the Evidence Act. We agree with the observations in AIR 1937 Mad 538 (Kotikela-pudi Venkatramayya v. Digavalli Sesh-amma) to the effect :
'Statements of that kind will of course justify scrutiny in the light of the other evidence in the case because they are self-serving; but that is different from saying that they are inadmissible in evidence.'
12. It is, therefore, necessary to examine if the statements of Bhanu in Exts. A and B that she had authority from her husband to adopt are reliable. We have already stated that at the time of the adoption ceremony all the four daughters were present. The husband of the plaintiff (P.W. 6) was not only present at the time of the adoption ceremony but he attested Exts. A and B. If Bhanu had no authority, other daughters affected by the adoption would have raised protest and would not have allowed the adoption ceremony to take place. Defendant No. 5 whose interest is directly affacted by the adoption supports the caseof adoption. She would not support the case unless there was an authority to adopt which alone empowered Bhanu to make an adoption. Bhanu lived for about 7 to 8 years after the adoption. No dispute was raised by any of the daughters during her lifetime. These broad features furnish credence to the statements of Bhanu in Exts. A and B that she had authority from her husband to adopt. Thus, on a close scrutiny of the other evidence on record we are of opinion that the statements are reliable and can be acted upon.
13. The learned Single Judge reached the correct conclusion on both the points. The appeal has no merit. It is accordingly dismissed with costs.
14. I agree.