P.K. Mohanti, J.
1. This appeal, by defendants 1 and 2, arises out of a suit for declaration of title to and recovery of possession of the suit lands and also for mesne profits.
2. The plaintiffs case runs thus:
The suit lands originally belonged to one R. K. Chakrabarty, who transferred the same in favour of Gitarani Kundu, widow of late Debendranath Kundu by a registered sale deed dated 24-8-48 (Ext. 2). The plaintiff purchased the same from Gitarani Kundu and her daughter Pusparani Kundu by a sale deed dated 12-2-80 (Ext. 1) for a sum of Rs. 25,000. Defendant No. 1 Krushna Chandra Sahu was engaged as a servant by Debendranath Kundu, the deceased husband of Gitarani, in the year 1960. Debendranath Kundu became addicted to drinking and began to ill-treat Gitarani for which she left for Calcutta in the year 1964 and lived there with her daughter. During her absence, Debendranath became mentally unbalanced and fully dependant upon the help of defendant No. 1. Taking advantage of his ill-health and mental condition defendant No. 1 fraudulently obtained on 23-1-75 a document purporting to be a deed acknowledging adoption of defendant No. 2 as a son. It was alleged that defendant No. 2 is the natural born son of defendant No. 1 and he was never adopted by Debendranath Kundu as a son. The document dated 23-1-75 (Ext. C-1) was obtained from Debendranath by misrepresentation that he was executing a power-of-attorney in favour of defendant No. I authorising him to look after the settlement proceedings which were then in operation. It was further alleged that the contents of Ext. C-l are written in Oriya and Debendranath Kundu did not know how to read and write Oriya language. The contents werenever read over and explained to him nor had he any independent advice to execute the deed. Two to three months after execution of the deed, defendant No. 1 began to misbehave with Debendranath and induced the tenants not to pay the monthly rent of the suit houses to Debendranath. He ultimately drove out Debendranath from his house. In April, 1976 Debendranath went to his daughter's house at Calcutta and lived there with Gitarani and told her that a power-of-attorney had been taken from him by defendant No. 1. Coming to know about this, Gitarani and her daughter came down to Bhubaneswar and learnt that defendant No. l had fraudulently obtained the document Ext. C-l on several false recitals that the suit lands were purchased by Debendranath from R. K- Chakrabarty benami in the name of his wife Gitarani; that Pusparani was an illegitimate child of Gitarani; that defendant No. 1 had provided funds for construction of the house on the suit lands; and that defendant No. 2 was the adopted son of Debendranath. It was alleged that Debendranath was oilman by caste and he could not have adopted defendant No. 2 who is khandait by caste and is the son of a servant of the family. It was further alleged that the consent of Gitarani was never obtained for such adoption. On coming to know the real position, Debendranath filed a suit in the court of the Subordinate Judge, Bhubaneswar seeking a declaration that defendant No. 2 was not his adopted son and that the document (Ext. C-1) was obtained from him by fraud and misrepresentation. After filing the suit, Debendranath fell seriously ill and could not take steps in the suit for which it was dismissed for non-prosecution. Defendant No. 1 was occupying two pucca rooms standing on the suit premises. He also inducted several tenants on the suit premises and misappropriated the rent realised from them. Defendants 3 to 20 were the tenants in occupation of the suit premises by the date of the suit. The plaintiff served a notice on the defendant No. 1 requesting him to give up vacant possession of the suit lands in his favour and to pay damages to the tune of rents realised by him from the tenants after 12-2-1980. Defendant No. 1 sent a reply claiming title to the suit lands for himself and defendant No. 2. Hence, the plaintiff filed the suit for the aforesaid reliefs.
3. Defendant No. 1 filed written statement denying the plaint allegation. Hiscontention was that the suit lands were purchased by Debendranath Kundu benami in the name of his wife Gitarani and they lived together for some time in the suit house. But subsequently Gitarani left for Calcutta and lived with another man as his wife. Debendranath was issue-less and he treated defendant No. 1 as a 'Snehaputra'. He got defendant No. 1 married. Defendant No. 1 sold away his ancestral property and spent the consideration money in constructing some houses on the suit lands. He used to look after the suit lands on behalf of Debendranath. Since Gitarani was not traced and subsequently it was learnt that she was living with another man and had begotten children through him Debendranath decided to adopt defendant No. 2 as a son. So after observing all religious rites he adopted defendant No. 2 and subsequently executed Ext. C-1 acknowledging the adoption. Since Gitarani had deserted Debendranath and was treated to be dead, the question of obtaining her consent for the adoption did not arise. The allegations of fraud and misrepresentation were denied and it was contended that Debendranath executed the document Ext. C-1 out of his own free-will being fully aware of the contents thereof. The plaintiff's sale deed was challenged as nominal and devoid of consideration. The allegation that defendant No. 1 realised house rent from the tenants and appropriated the same was also denied, It was alleged that the suit lands were full of jungles and defendant No. 1 reclaimed the same and while so doing he occupied about Ac. 0.040 of Government land and amalgamated the same with the lands purchased by Debendranath. Constructions on the purchased land and the Government land were raised mostly with the funds provided by defendant No. 1. It was also alleged that Gitarani and Pusparani were never in possession of the suit lands and that defendant No. 2 Jogendranath being the adopted son of Debendranath has been in possession of the suit lands in his own right. It was alternatively pleaded that defendants 1 and 2 have acquired title to the suit lands by adverse possession.
4. The burden of establishing that there was a valid adoption which deflected the ordinary course of succession is on the party who pleads the case of adoption. It was, therefore, imperative for the defendants to prove that defendant No- 2 was in fact adopted by Debendranath and that the adoption was valid and legal.Both the factum of adoption and validity and legality of adoption are based upon the fact of giving and taking. Section 11(vi) of the Hindu Adoptions and Maintenance Act provides as follows:
'(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth, or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.'
The Supreme Court in the case of Lakshman Singh Kothari v. Smt, Rup Kanwar, AIR 1961 SC 1378 laid down as follows (at p- 1381):--
'......Under the Hindu Law, whetheramong the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object It is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it.....'
5. In the present case, there is absolutely no evidence to show that there was giving and taking. Defendant No. 1 who is the natural father of defendant No. 2 has been examined in the case as D.W. 1. In his deposition he has not uttered a word about the giving and taking. There is no other evidence also to prove the actual delivery of the child by the natural father and actual taking of the child by the adoptive father. Reliance was placed on the document Ext. C-1 executed by Debendranath Kundu acknowledging the adoption of defendant No. 2. But a document acknowledging adoption or containing recitals regarding giving and taking of adoption are not sufficient themselves to constitute legal adoption in the absence of evidence about actual giving and taking of the child. This document has been executed by Debendranath, but not by defendantt No. 1. In fact he is not a party to the document.Therefore, no presumtion can be drawn under Section 16 of the Act as regards giving in adoption by the natural father. It, therefore, follows that the defendants have failed to establish their claim of adoption. Another staggering feature of the case is that admittedly no consent of Gitarani, the wife of Debendranath was taken for the alleged adoption. Section 6 of the Act provides that no adoption shall be valid unless it be made in accordance with the other conditions mentioned in the Chapter, According to the proviso to Section 7 of the Act if the person taking the son in adoption has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. In the instant case, it is nobody's case that Gitarani has renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Thus, even if there was an adoption it is invalid due to non-compliance with the requirements of the proviso to Section 7.
6. It was next contended on behalf of the appellants that Gitarani was not the real owner of the suit lands and that Debendranath purchased the same benami in the name of his wife. It is to be noted in this connection that Debendranath has died in the meantime and after his death his wife Gitarani and daughter Pusparani being natural heirs have succeeded to the properties left by him. So, even assuming that Debendranath was the real owner of the suit lands, Gitarani and Pusparani inherited the same after his death. The plaintiff's sale deed having been executed by both Gitarani and Pusparani, its validity is not open to attack.
7. As regards the plea of adverse possession, it was contended that some shop rooms were constructed by the defendant No. 1 on a piece of Government land and he has been possessing the same for more than thirty years. According to P.W. 2 the shop rooms stand on the lands purchased by her from R. K. Chakrabarty. Defendant No. 1 has not adduced any evidence in support of his contention that the shop rooms stand on Government land. It was not disputed before the trial Court that Debendranath Kundu was in possession of entire suit lands including the shop rooms till he left for Calcutta some time after 1975. The suit having been instituted in the year 1980, it cannot be said that defendant No. 1 has perfected his title to the same by adverse possession.
8. There is no iota of evidence to support the contention that Gitarani deserted her husband and lived with another man as wife and husband. According to the evidence of P.W. 2 Gitarani Kundu and P.W. 4 Chandramohan Bhowmik, who is a neighbour, Pusparani is the daughter of Debendranath Kundu. P.W. 3 Brajabandhu Das, a teacher, has proved the school admission register (Ext. 4) wherein Pusparani has been described as the daughter of Debendranath Kundu. As against this evidence, defendant No. 1 merely stated that he heard from Debendranath Kundu that he had no daughter and that Pusparani was never staying at Kundu Bhawan. On a review of the entire evidence on the record, we hold that Pusparani is the daughter of Debendranath Kundu, Gitarani gave evidence that she also with her daughter Pusparani had sold the suit lands to the plaintiff for a sum of Rs. 25,000 and received the consideration money by way of bank draft. Thus, the plaintiff has acquired good title to the suit lands, and he is entitled to possess the same and recover mesne profits as decreed by the trial Court.
9. All the contentions raised on behalf of the appellants having been negatived, this appeal is bound to fail.
10. In the result, the appeal fails and is dismissed; but in the circumstances without any order as to costs.
11. The appellants filed a petition for admitting certain documents as additional evidence. In our opinion, the documents sought to be admitted as additional evidence will not serve any useful purpose. The petition is rejected.
J.K. Mohanty, J.