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Giridhari Biswal Vs. Golak Biswal and anr. - Court Judgment

LegalCrystal Citation
CourtOrissa
Decided On
Reported inAIR1949Ori27
AppellantGiridhari Biswal
RespondentGolak Biswal and anr.
Cases ReferredFirm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram A.I.R.
Excerpt:
.....of adoption has been acquiesced in by the members of the adopting family for a long period there is a very strong presumption in favour of the validity of the adoption and that the burden is very heavy on the person who challenges the adoption. 2(b) which amount to contradiction of the evidence given in court by defendant 1. for instance, he had clearly stated that the plaintiff was not adopted by his father......two other natural born sons of bira died and then it was alleged that about 25 years ago bira adopted the plaintiff as his son. it was further alleged that the plaintiff and defendant 1 remained joint till about 1913 when there was a partition of the joint family property. the suit was necessitated by the action of defendant 1 in mortgaging one item of the joint family property in favour of defendant 2. defendant 1's main contention was that neither was he given in adoption to nilamani nor was the plaintiff adopted by bira. he being the sole survivor of the joint family of bira and his brother nilamani became entitled to all that property.3. thus it will be seen that the main question for decision in this litigation was whether the plaintiff was the adopted son of bira and for.....
Judgment:

Narasimham, J.

1. This is the plaintiff's second appeal against the concurrent decisions of the Munsif of Jaipur and the Additional Subordinate Judge of Cuttack dismissing his suit for declaration of title and recovery of possession of certain property on the ground that he is the adopted son of one Bira Biswal.

2. Defendant 1 is admittedly the natural born son of Bira Biswal. The plaintiff alleged that defendant 1 was given in adoption to Bira's own brother Nilamani about 0 years ago. Subsequently two other natural born sons of Bira died and then it was alleged that about 25 years ago Bira adopted the plaintiff as his son. It was further alleged that the plaintiff and defendant 1 remained joint till about 1913 when there was a partition of the joint family property. The suit was necessitated by the action of defendant 1 in mortgaging one item of the joint family property in favour of defendant 2. Defendant 1's main contention was that neither was he given in adoption to Nilamani nor was the plaintiff adopted by Bira. He being the sole survivor of the joint family of Bira and his brother Nilamani became entitled to all that property.

3. Thus it will be seen that the main question for decision in this litigation was whether the plaintiff was the adopted son of Bira and for the purpose of this decision, the question as to whether defendant 1 (who is admittedly the natural born son of Bira) was given in adoption to Nilamani was also very material. Both the Courts disbelieved the evidence about the two adoptions given by the plaintiff's witnesses and, therefore, dismissed the suit.

4. In view of the concurrent findings of both the Courts on the question of adoption the main point of law which Mr. Section P. Mohapatra, on behalf of the appellant, could urge is that both the Courts assessed the evidence regarding adoption from a wrong angle of vision and totally failed to take into consideration the special circumstances arising out of the fact that the adoption took place more than 25 years ago. He relied on S. Ramakrishna Pillai v. Tirunarayana Pillai A.I.R. 1932 Mad. 198 for the view that where the fact of adoption has been acquiesced in by the members of the adopting family for a long period there is a very strong presumption in favour of the validity of the adoption and that the burden is very heavy on the person who challenges the adoption. In this decision the principle enunciated in the Privy Council decision reported in Sri Kanchumarthi Venhata Seetharama Chandra Row v. Kanchumarthi Raju and other decisions as regards the standard of proof required when adoption which had taken place long ago is challenged, has been followed. But I am afraid none of those decisions is applicable to the present case. In all those decisions there was clear evidence to the effect that for a long period the parties behaved on the footing that the adoption had been recognised. But in the present case apart from certain transactions which took place between 1939 and 1942 there is absolutely nothing on record from which a Court could infer that the plaintiff was long recognised as the adopted son of Bira or else that in numerous transactions spread over a long period he was treated as the adopted son of Bira by defendant 1. Moreover, even in respect of the transactions from 1939 to 1942 for which Mr. Mohapatra has relied on Exs. 1 series and 2 series there is no unambiguous recognition of the plaintiff as the adopted son. I cannot, therefore, accept the contention of the appellant that the Courts assessed the evidence regarding adoption from a wrong angle of vision.

5. Next it was contended that the lower appellate Court committed an illegality in rejecting Ex. 2(b) on the ground of non-compliance with Section 145, Evidence Act. Exhibit 2(b) is a letter written by defendant 1 to the plaintiff on 15th June 1942 and in that letter there are some passages to the effect that he considered the plaintiff as in no way different from his own uterine brother and that in the coming settlement he would set aright everything. It is, however, not clear what exactly he intended to set right in the coming settlement. But it was urged that he assured the plaintiff that the family property would be recorded in his name. The question arises as to whether the plaintiff is entitled to use these passages in the letter as admissions against the defendant under Section 21, Evidence Act, without complying with the provisions of Section 145. Mr. Mohapatra has relied on Ramkeshwar Das v. Baldeo Singh A.I.R. 1936 Pat. 688 where it was held that in respect of admissions which come under the scope of Section 21, Evidence Act, non-compliance (compliance?) with Section 145 was not necessary. The correctness of this decision has been seriously doubted in a later Pull Bench decision of the Lahore High Court reported in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram A.I.R. 1946 Lah. 65 For the purpose of this appeal it is, however, unnecessary to consider how far the Patna decision is correct. This is not a case of mere admission under Section 21, Evidence Act. There are undoubtedly certain passages in Ex. 2(b) which amount to contradiction of the evidence given in Court by defendant 1. For instance, he had clearly stated that the plaintiff was not adopted by his father. But in Ex. 2(b) he had stated that he was treating the plaintiff as his own uterine brother. Similarly, there are several other passages which contradict his evidence in Court and, in respect of those passages the provisions of Section 145, Evidence Act, would undoubtedly apply. It will be difficult to separate these passages from others which may amount to pure admissions or to say that in respect of a portion of Ex. 2(b) compliance with Section 145 is mandatory or else that in respect of the remaining portions no such compliance is necessary. I would respectfully agree with the observations of the Lahore High Court in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram A.I.R.1946 Lah. 65 that

Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions.The lower appellate Court rightly took the view that the attention of defendant 1 ought to have been specially drawn to the passages in Ex. 2(b) on which the plaintiff relies and he (defendant l) should have been given an opportunity of explaining the same.

6. There being no other point of law the second appeal fails and it is dismissed with costs.


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