1. Kanhei Sahu had three sons Krupasindhu, Ramchandra and Bhagaban. Fullamoni (Plaintiff 1) is the wife of plaintiff 2. Deceased Ramchandra had five sons Mukunda (D. W. 2), Sadananda, Netrananda (defendant), Kshetramohan and Punananda. Jaykrishna, Basudeb and Banamali are the sons of deceased Krupasindhu. On 11-2-58 plaintiff 2 executed a registered adoption deed (Ex. B) reciting therein that he had adopted the defendant ten years ago. On 12-2-58, Just a day after, a registered partition deed (Ex, A) was brought into exist-nee to which plaintiff 2 and the sons of Krupasindhu and Ramchandra were parties. The properties were divided into three shares and the one-third share, to which plaintiff 2 was entitled, was allotted to plaintiff 2 and the defendant on a recital that the defendant had been adopted by plaintiff 2.
The suit was filed on 8-2-61 on the averment that the plaintiffs did not adopt the defendant, that Ex. B was fraudulently procured and that the recital of adoption in Ex. A was made without the knowledge of plaintiff 2. The suit was for a declaration that the defendant was not the adopted son of the plaintiffs and that Ex. B was not binding on them. It is to be noted that originally plaintiff 1 had alone brought the suit and plaintiff 2 was a defendant. Subsequently Bhagaban was transposed as plaintiff 2. The ''plaint was not, however, accordingly amended. The position is not disputed that the reliefs sought in the plaint by plaintiff 1 were the reliefs sought by both the plaintiff and on that basis the suit was fought out and evidence led.
The defence was that the defendant was duly adopted by the plaintiffs on Akshyatrutiya day in 1948 and that Exs. A and B were voluntarily executed by plaintiff 2 after having read their contents.
2. The learned Subordinate Judge held that Exs. A and B were genuine and voluntarily executed by plaintiff 2 after fully knowing the contents thereof. Though initially Mr. Misra made an endeavour to assail this finding, ultimately he abandoned it and argued on the footing that the finding was correct. We have for ourselves also examined the relevant finding and are satisfied that the finding of the trial court and the concession made by Mr. Misra are well founded. The judgment would accordingly proceed on the finding that Exs. A and B were duly executed by plaintiff 2 after knowing the contents thereof.
3. The learned Subordinate Judge found that the defence story of adoption was established. Section 31 of the Evidence Act lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels. Both in Exs. A and B plaintiff No. 2 admitted that the defendant was adopted by him. Such an admission, though not conclusive unless it amounts to estoppel, is decisive of the matter - unless successfully withdrawn or proved erroneous: see AIR 1960 SC 100, Narayan v. Gopal.
The correct rule of estoppel applicable in the case of an adoption is that it does not confer status. It merely shuts out the mouth of the person who tries to deny the adoption. Where both parties are equally conversant with the true state of facts, the doctrine of estoppel has no application. The effect of the admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. The question of onus loses its efficacy when objection is not taken in the trial court and evidence has been laid by both parties: AIR 1959 8C S04, Kishori Lal v. Mst. Chalti Bai.
Mr. Mohapatra does not contend that any question of estoppel arises on the basis of Exs. A and B. The only question to be examined is whether the plaintiffs have been successful in establishing that the admission of plaintiff 2 in Exs. A and B about the adoption are wrong. In that regard the relevant matters to be examined are whether the ceremony of giving and taking has been performed and whether there are relevant facts militating against the theory of adoption.
4. On the question of giving and taking ceremony, the evidence of D. Ws. 2 and 4 to 9 has been pressed into service. D. Ws. 2, 6 and 9 are defendant's elder brother, father-in-law and natural mother respectively. D. Ws. 4, 5 and 7 are respectively the barber, astrologer and a neighbour claiming to be present at the adoption ceremony. D. W. 8 is the defendant himself. The defendant admitted that all through his name was Netrananda and it was not changed from Gokulananda to Netrananda on the day of adoption.
All other witnesses, however, gave a different story and stated that originally the name of the defendant was Gokulananda and it was changed to Netrananda on the day of adoption. The defendant is said to have been adopted while he was 10 years old in 1948. His own statement with regard to his name must be accepted as correct. The other witnesses clearly lie to probabilise a case of adoption. No reliance can be placed on their testimony. D. Ws. 2, 6 8, and 9 are interested in the adoption of the defendant. D. W. 2 would get a larger share in the property if the story of adoption is accepted. The defendant also would get a larger share by the adoption than what he would have got in his natural father's property.
Doubtless they are material witnesses in a case of adoption. Their evidence, however, requires satisfactory corroboration. D. W. 4 claims to be barber of the family for the last 15 years. He deposed in 1963 and the adoption was said to be in 1948. According to his evidence, he became the barber of the family in the very year the adoption took place. He cannot say the name of any Bandhu of the defendant or of plaintiff 2 excepting the name of the father-in-law of the elder brother of the defendant. Had he been the barber of the family, in ordinary course of events he was likely to know the names of the bandhus of the family. He made the false statement that the defendant's name was changed from Gokulananda to Netrananda on the day of adoption.
Defendant 5 is said to be the astrologer. Ordinarily he was to fix the date of adoption. Though D. W. 2 stated that D. W. 5 suggested the date of adoption, the latter did not make such a statement. In fact his evidence is that an invitation was extended to him in the morning of the day of adoption. He also deposed that defendant's name was changed from Gokulananda to Netrananda. D. W. 7 claims to be a neighbour. He does not even remember the date of his son's birth, vet he claims to know the date of adoption which took place 15 years before he deposed.
Thus much reliance cannot be placed on the testimony of D. Ws. 4, 5 and 7.
5. There are telling circumstances against the story of adoption. In Ex. B the date of adoption was not mentioned. The age of plaintiff 2 in 1948 was only 37. Plaintiff 1 was then only 28 years old. By then they had three daughters. Plaintiff 1 was thus neither barren nor old enough to lose the hope of begetting a son. At that age, when she was child bearing and none of the children born to her died, it is difficult to imagine that the plaintiffs would agree to adopt a son.
Between 1948 and 1958 defendant was a party to a number of transactions wherein he uniformly described himself as the son of Ramchandra. Ex. 1 is a registered sale deed dated 8-9-51 whereunder transfers were made by all the members of the family. The defendant was described therein as the son of Ramchandra represented through his brother-guardian D. W. 2. Exs. 2 and 3 are two registered sale deeds dated 4-1-56 and in those documents defendant described himself as the son of Ramchandra.
Ex. 5 is a registered mortgage bond executed by the defendant in favour of a Co-operative Credit Society wherein he described himself as the son of Ramchandra. The explanations offered by the defendant and D. W. 2 are that the alienees insisted upon the defendant being ft party to those documents and being described as the son of Ramchandra. There is no corroboration to this bare explanation. That apart, the explanation on the face of it is absurd and unacceptable. Even assuming that the alienees insisted upon the defendant being a party to those documents, the latter could have been described as the son of plaintiff No. 2. When the defendant was a party to the document, he was bound by the transfer irrespective of the question whether he was described as the son of Ramchandra or of plaintiff 2. The alienees are interested only in the extinction of the title of the defendant. Their apprehension of subsequent objections being raised by the defendant could be easily allayed by the defendant being a party. Whether he was described as the son of the one or the other, he was bound by the transfer.
Defendant received compensation along with his natural brothers in respect of the properties of Ramchandra from the Estate Abolition Officer (see the evidence of D. W. 2). His explanation that he gave away the money to his brothers is not of much assistance to him. The fact remains that he described himself as the son of Ramchandra though his positive case is that he had been adopted by that time. In 1954 he filed a rent suit with D. W. 2 describing himself as the son of Ramohandra and obtained a decree (see the evidence of D. W. 2). There is no satisfactory explanation as to why he was a party to the rent suit and described himself as the son of Ramohandra.
The aforesaid circumstances are wholly inconsistent with the theory of adoption.
6. From the aforesaid facts and circumstances the following conclusion is irresistible: Defendant was not adopted by the plaintiffs in 1948. Plaintiffs were very young by then. They had three daughters who were alive. They had not abandoned the hope of begetting a son. Because there was no adoption, the defendant entered into various transactions describing himself as the son of Ramchandra, his natural rather, till 1958. By 1958 plaintiffs had six daughters. There seems to have been a talk in that year that the plaintiffs should take the defendant in adoption. Even Punananda, the youngest son of Ramchandra, was about 19 years old in 1958. The Hindu Adoptions and Maintenance Act of 1956 (Act 78 of 1956) had by then come into force. Under Section 10 thereof, no person shall be capable of being taken in adoption if he has completed the age of 15 years. None of the sons of Ramchandra could be taken in adoption in 1958. So in Ex. B, the adoption was stated to have been done 10 years before so that this Act would not apply.
Thus in fact there was no adoption and no ceremony of giving and taking in 1948. The defendant went on creating rights and liabilities as the son of Ramchandra which was the true fact. The deed of adoption was created in 1958 containing an admission that the adoption had taken place in 1948.
The admission did not represent the true state of affairs and it has been proved to be wrong by the materials on record. The admission being wrong, Exs. B and A do not stand in the way of giving the plaintiffs a declaration that the defendant is not their adopted son. The learned trial court did not keep the correct legal perspective in view.
7. In the result, the suit for a declaration that the defendant is not the adopted son of the plaintiffs must succeed. It is not necessary to give a further declaration that Ex. B is not binding on the plaintiffs. The judgment of the trial court is set aside and the appeal is allowed. In the circumstance, parties to bear their own costs throughout.
8. I agree.