G.B. Patnaik, J.
1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No. 13 of 1966. The plaintiff filed the suit for a declaration of his right, title and interest over the Schedule-A property and for recovery of possession from defendant No. 1.
2. According to the plaint case, Holding No. 104 in Ward No. 6 of Sambalpur Town was purchased under two sale deeds registered on 5-3-1929 in equal shares, one by Panaram (father of the plaintiff) and Chouthmal (brother of the plaintiff) and the other by Bhairuram and his son Baluram and they have been in possession of the same ever since the date of Their purchase. In 1929, the house standing onthe plot was reconstructed by submission of a joint plan. Baluram died in 1962 without any heir. One Mani De in execution of a decree in Execution Case No. 83 of 1962 attached the entire property for payment of his decretal dues against defendant No. 2 who is son of Raghunath, brother of the plaintiffs father Panaram. Defendant No. 2 sold a portion of the house marked red in the map attached to the plaint to defendant No. 1 under a registered sale deed dated 22-12-1965 representing that he was the adopted son of late Baluram. According to the plaint case, the so-called adoption is not a fact and, therefore, the plaintiff along with defendants 2 to 4 are the legal heirs of late Baluram. It was also pleaded in the plaint that defendant No. 2 under the sale deed in favour of defendant No. 1 transferred more area than what Baluram had purchased under the registered sale deed of 1929 and, therefore, to that excess extent the sale in favour of defendant No. 1 was void. On these averments, the suit was filed for the reliefs as aforesaid.
3. Defendants 1 and 2 contested the suit. Defendant No. 1 denied the allegations made in the plaint and asserted that defendant No. 2 was the adopted son of late Baluram and was universally recognised by all as such. It was also pleaded that defendant No. 2 being the adopted son of Baluram transferred his interest for value and he never transferred anything more than what Baluram had purchased. On these averments, it was prayed that the suit was liable to be dismissed.
Defendant No. 2 is his written statement categorically took the stand that he was the adopted son of late Baluram the adoption having been taken place long before, according to the prevailing caste custom and he had been accepted and treated as such by the society and the entire world. The sale by him in favour of defendant No. 1 on 20th December, 1965, was the exclusive property of his father late Baluram which on his death devolved upon defendant No. 2. It was also stated that the property had been attached in Execution Case No. 83 of 1962 in execution of a decree against late Baluram and in the said execution case on the death of Baluram, defendant No. 2 was substituted and to satisfy the decree of the said execution case, defendant No. 2 conveyed the property to defendant No. 1 under the sale deed executed on 28th December, 1965, and, therefore, thesuit was liable to be dismissed. Though defendant No. 2 had filed the written statement as aforesaid, he did not contest the suit during trial and defendant No. 1 alone contested the suit.
4. On these pleadings, the trial Court framed as many as five issues and on issue No. 2 it found that holding No. 104 was purchased by Baluram and his father under Ext. 5 and was their personal and self-acquired property. On issue No. 3, which is the most important issue, it found that defendant No. 2 was the adopted son of late Baluram. Under issue No. 4, the trial Court came to the conclusion that the sale in favour of defendant No. 1 by defendant No. 2 was valid and could not be impeached either by plaintiff or defendants 2 to 5. On issue No. 5, the trial Court, however, came to the conclusion that there had been a sale of more land by defendant No. 2 to defendant No. 1 than what his adoptive father had purchased under Ext. 5 and, therefore, to that excess extent of sale, the plaintiff was entitled to recover from defendant No. 1. On these findings the suit was decreed in part and the plaintiff's right was declared over excess area sold by defendant No. 2 in favour of defendant No. 1 beyond the area purchased by Baluram under Ext. 5.
5. The plaintiff challenges the aforesaid judgment and decree, the bone of contention being the finding of the trial Court on the question of adoption of defendant No. 2 is illegal. Defendant No. 1 has also filed a cross-appeal challenging the conclusion of the learned Subordinate Judge that there has been excess sale to him by defendant No. 2 than what the adoptive father of defendant No. 2 had purchased under Ext. 5.
6. So far as the plaintiffs appeal is concerned, the only question which requires to be adjudicated upon is whether defendant No. 2 was the validly adopted son of late Baluram or not.
7. Mr. Sinha, the learned counsel appearing for the plaintiff-appellant, has contended that the burden of proving the adoption is on the person who claims to have been taken in adoption and under the Hindu law, the real giving and receiving ceremony must be established before it can be held to be valid adoption. Such evidence of giving and taking being totally absent in the case, the conclusion of the Subordinate Judge on this score is not tenable in law. He has furthersubmitted that on the evidence of the defendants, when it is established beyond doubt that the adoptive father never asked the natural father for taking in adoption, in the eye of law, there has, therefore, been no valid adoption.
Mr. Mohanty, the learned counsel for the respondents, on the other hand has submitted that no doubt the burden of proving an adoption is on the person who claims to be the adopted son, but where a fairly long period has elapsed between the date of adoption and when its validity is challenged, then every allowance for the absence of evidence to prove such facts must be favourably entertained, and judged from that stand-point, in the present case, the adoption of defendant No. 2 has been well established. In other words, Mr. Mohanty relies on the theory of ancient adoption, whereby from the fact that a person is treated as an adopted son in the family for a long period, the requirement of actual giving and taking is dispensed with.
8. Before examining the correctness of rival contentions and examining the evidence adduced in this case to find out whether the adoption of defendant No. 2 by late Baluram has been proved in this case or not, it would be profitable to note the law on the point. Under the Hindu law, as it existed prior to the commencement of the Hindu Adoptions and Maintenance Act, the physical act of giving and receiving is absolutely necessary to the validity of an adoption. There is no particular form prescribed for giving and taking but what the law requires is that there should be some overt act to signify the delivery of the boy from one family to another. The natural / parents should hand over the adoptive boy and the adoptive parents should receive him. In case of an old adoption, however, strict proof of the performance of the ceremonies may not be available. An adoption acquiesced in and recognised for a numbr of years by the person making the adoption and a long course of recognition on the part of the persons who would be expected to know of the fact and who were best acquainted with the circumstances, can give rise to the inference _ that the conditions relating to the adoption' were fulfilled. (See, Mulla's Hindu Law, Section 489). There is no specific rule as to number of years necessary for the purpose to dub the adoption as an 'old adoption'. By judicial pronouncements, however, the Courts in India have more or less considered adoption, of 25 years and more to be an ancient adoption. In our opinion, no definite formula can be appliedas to the number of years to find out whether the adoption is an old adoption or not. But according to us, where on account of lapse of time, it is not possible to give evidence of persons proving the ceremony of giving and taking, then a party can take recourse to the theory of ancient adoption, provided of course, there has been a sufficient lapse of time between the date of alleged adoption and the date on which the same is challenged. But if the evidence discloses that the persons who attended the adoption ceremony are available to give evidence, then in such a case one cannot discharge his burden of proving the factum of giving and taking merely by taking recourse to the fact that the adoption had taken place 25 or 30 years before the same is challenged. In our opinion, it depends upon the facts and circumstances of each case.
9. At this stage, we would examine some of the authorities cited by Mr. Mohanty, the learned counsel for the respondents, in support of his plea that the adoption being an ancient one, the burden of proving giving and taking ceremony on defendant No. 2 is discharged and shifts to the plaintiff to prove that there was no valid adoption. In the case of Rup Narain v. Mussammat Gopal Devi (1909) 36 Ind App 103, it was indicated : --
'.... The adoption, if it took place, was about fifty years ago, so that direct evidence of much value could hardly be looked for.
Their Lordships are of opinion that the adoption is established. Before the death of Sultan in 1861 Wazir is described as his adopted son. On the death of Sultan, Wazir succeeded to the estate without controversy, which he could only have done as adopted son, and enjoyed it and disposed of it as his own without controversy down to his death in about 1870. Almost every document, both during the life of Wazir and since his death, is framed entirely upon the basis of adoption.'
It is worthwhile to note that in the said case the Court took into account that on account of the fact that fifty years had elapsed direct evidence of much value could hardly be looked for and then it considered the circumstance that during the lifetime of the adoptive father and after his death till the death of the adopted son, the adopted son has been treated and has behaved as the only heir of the adoptive father and dealt with the properties of the adoptive father without any controversy. In the case of Vithoba Bhanji v. VithalSakroo AIR 1958 Bom 270, adoption was being challenged after forty years and in that setting, the Court held that the fact that since 1913 the adopted son has throughout described himself and acted as an adopted son and was so accepted by various persons including the creditors and persons who took transfers of immovable property from him, was of considerable importance and relevant to show that he was being regarded by every one connected with him in business or otherwise as the adopted son. Those documents had been brushed aside by the trial court, but the High Court held that the documents were relevant in considering the question of adoption specially in a case where the adoption was being challenged after lapse of thirty years and having regard to the fact that considerable evidence must have disappeared during that time. This decision is, therefore, not a direct authority in support of Mr. Mohanty's contention, though as a fact, in that case the alleged adoption had been challenged after forty years from the date of adoption.
In the case of Harihar Rajguru Mohapatra v. Nabakishore Rajaguru Mohapatra AIR 1963 Orissa 45, a Bench of this Court was considering the applicability of Sections 101 to 104 of the Evidence Act and in that connection it was held (Para 12) :-
'..... The law is well settled that the evidence in support of adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging adoption. It is equally well settled that when there is a long lapse of years between the adoption and its being questioned, every allowance for the absence of such evidence to prove such fact must be favourably entertained, the reason being that after very long term of years it is difficult to procure evidence. Admittedly inthis case there is no oral evidence of giving and taking. It is not also possible to procure such evidence after this long lapse of years.But evidence is available that Gopinath was being treated as the adopted son and this is apparent from Exts. 5, 5/a of the year 1906, Exts. 6, 6/a of the year 1926 and Ext. 3 of the year 1951. So there is a long variety of transactions upon the footing that the adoption of Gopinath to Dasarathi was a valid act. In such circumstances, the burden rests very heavily upon defendant 5 who challenges its validity.''
(Underlining is ours)
It may be noted that in the aforesaid decision, the Court took into consideration that there was no oral evidence of giving and taking and further it was not possible to procure such evidence after the long lapse of years. But where the evidence discloses that witnesses are available to prove giving and taking, the ratio of the aforesaid case, in our opinion, will not be applicable.
In the case of Smt Pentapati Venkatratnam v. Karri Venkatanarasayamrna, AIR 1964 Andh Pra 109, a Bench of Andhra Pradesh High Court was considering the case of an old adoption. In that case, the adoption was being challenged after lapse of more than forty years. There was also direct evidence of D. W. 12 who was about 80 year old on the date when she gave evidence and she stated on oath that the adoption took place in accordance with the ceremony of giving and taking and she had witnessed the same being invited to the ceremony. The trial court as well as the High Court had accepted the said evidence and came to hold in favour of adoption. Accordingly, this is not a direct authority on the point at hand.
In the case of Gouranga Sahu v. Bhaga Sahu AIR 1976 Orissa 43, S. K. Ray, J (as he then was) was considering the case of an old adoption and also the burden of proof and the mode of appreciation of evidence thereto. In that case, the adoption was 36 year old. In paragraph 6 of the judgment, his lordship held :--
'.... So even though the normal rule is that one who seeks to deflect the natural line of succession to property by alleging adoption must discharge that heavy burden, in cases of ancient adoption every allowance for the absence of evidence to prove such fact must be favourably entertained. Where there is a long lapse of years between the adoption and the time when it is being questioned and during that period of interregnum a variety of transactions of open life and conduct upon the footing that the adoption was a valid act have taken place, the initial burden necessarily shifts to the person who challenges its validity.....'
After applying the law to the facts of that case, his lordship held : --
',.... Considering the entire evidence on record, both documentary and oral, and the variety of transactions of open life and conductupon the fooling of adoption coupled with the weakness of the defence evidence, and absence of any casteman or relative coming forward in support of the defence case, it is impossible to say that the plaintiff is the adopted son of Mohana is erroneous.....'
From the said judgment, it is not quite clear as to what was the evidence which his lordship has considered in coming to the aforesaid conclusion.
A conspectus of the aforesaid authorities unequivocally lays down the rule that a person who claims title on the basis of adoption must prove the adoption and it has to be established that the essential ceremony of giving and taking did take place. That burden, however, shifts to the person who challenges the adoption to disprove the adoption when on account of long lapse of years, direct evidence of giving and taking has disappeared. But if direct evidence is available, then the burden would not shift and the person who claims title on the basis of adoption must discharge that burden.
10. The method of appreciation of evidence regarding an old adoption, however, is not that strict as in the case of a recent origin. The Privy Council in the case of Tammanna Shivappa Kori v. Parappa Girimallappa Kori, AIR 1945 PC 111, affirmed the judgment of the High Court. In that case, the trial court had disbelieved the evidence of adoption on the ground that it was discrepant in many materials. The High Court had reversed that judgment. The Privy Council while affirming the judgment of the High Court observed as follows : --
'....They (discrepancies) were mainly discrepancies to the respective positions occupied by the parties and witnesses 'during the ceremony in the house where it took place; but all the witnesses agreed as to the vital facts necessary to establish an adoption.
...Their Lordships agree with the learned Judges of the High Court in thinking that in the circumstances there was not sufficient ground for rejecting the evidence in support of the adoption ceremony, and that the discrepancies in such evidence can be explained by the length of time which had elapsed between the ceremony and the date when the witnesses were called upon to give evidence........'
Thus, it is apparent that direct evidence of giving and taking was there and in appreciating the same, the Privy Council rightly took into consideration that the so-called discrepancies with regard to the respective positions occupied by the parties will not be treated as discrepancies, sufficient to reject the oral testimony of the witnesses and must be allowed taking into account the long lapse of time between the ceremony and the date when the witnesses were called upon to give evidence.
11. As this stage it would be appropriate to dispose of the petition filed by respondent No. 1 for additional evidence. The hearing of this case began on 9-8-1984 and was continued on 10-8-1984. Thereafter, the hearing was adjourned to 13-8-1984. On that date, the respondent No. 1 filed an application for additional evidence stating therein that the maternal uncle and mother-in-law of defendant No. 2 who had direct knowledge of the adoption of defendant No. 2 are living and the court should permit evidence of those two to be taken in support of the adoption of defendant No. 2. We have heard Mr. Mohanty in support of the application and Mr. Sinha in opposition of the same. We do not think it appropriate to allow the said petition, as in our opinion the condition precedent for allowing production of additional evidence has not been established by the respondent. Neither the trial court refused the defendant-respondent to admit such evidence nor the defendant has been able to establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge. Therefore, we would reject the said application. But at the same time we cannot lose sight of the fact which has been stated on oath in the affidavit filed on 13-8-1984 that the mother-in-law and the maternal uncle of defendant No. 2 who had direct knowledge of the adoption of defendant No. 2 are still alive and, therefore, defendant No. 2 could have discharged the burden of proving his adoption by giving their evidence. In view of the aforesaid state of affairs, it is not permissible for a court to apply the theory of ancient adoption and then shift the burden to the other side to prove that the adoption in fact never took place.
12. That apart, we have examined the evidence adduced on behalf of the defendants carefully and in our opinion, even thedefendants have not been able to establish that there has been a variety of transactions of open life and conduct upon the footing of the adoption of defendant No. 2. So far as the oral evidence is concerned, we will examine how far the evidence adduced satisfies the tests laid down in Section 50 of the Evidence Act.
Under Section 50, the essential requirements are : (i) there must be a case where the court has to form an opinion as to the relationship of one person to another : (ii) in such a case, the opinion expressed by conduct as to the existence of such relationship in a relevant fact : (iii) but the person whose opinion expressed by conduct is relevant must be a person who, as a member of the family or otherwise, has special means of knowledge on the particular subject of relationship. (See AIR 1959 SC 914 (Dolgobinda Paricha v. Nimai Charan Misra). As has been laid down in the aforesaid case, what is relevant is the opinion expressed by conduct and opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or conviction resulting from what one thinks on a particular question. Section 50 does not make evidence of mere general reputation admissible as proof of relationship. It is the conduct or outward behaviour which must be proved in the manner laid down in Section 60 of the Evidence Act.
So far as D. W. 1 is concerned, his alleged special means of knowledge appears to be that Baluram was his family barber. His statement that'..... We know Parsuram to be the son of Baluram .....' does not satisfy the test of Section 50 of the Evidence Act. The only other statement in his evidence '....He (Baluram) used to call Parsuram as his son....' may come within the ambit of Section 50. In the cross-examination, he admitted that he had no fixed barber and even if we accept his statement in chief that Baluram was his family barber, but from that it is difficult to find that the witness (D.W. 1) would be a person, who, as a member of the family or otherwise, has special means of knowledge. In our opinion, therefore, the evidence of D. W. 1 does not come within the ambit of Section 50 of the Evidence Act.
D. W. 2 claims to have special means of knowledge about the relationship of Parsuram with Baluram by enquiring from the saloon of Baluram while he was taking a hair-cut 25years before the date of his evidence. There is no manner of doubt that this will not satisfy the third requirement of Section 50 of the Evidence Act. Accordingly, his evidence also does not help the defendants in any manner.
Next comes the evidence of D. W. 3 who had filed a suit for foreclosure against Baluram and had obtained a decree and since Baluram died during the pendency of the execution case, he had substituted Parsuram in his place. His evidence does not disclose that he had any special means of knowledge and he only stated that while incurring loan Baluram had told him that he had a son. This evidence does not satisfy all the three requirements of Section 50 and is, therefore, not worthy of consideration at all.
D. W. 4 is defendant No. 2 himself. He of course has tried to prove his case, but apart from his oral testimony he has not adduced any other evidence corroborating his own evidence. It has been brought out in cross-examination of this witness that fifteen years ago 4 to 5 persons were living who were present at the time of adoption, but he could not say whether they were living or dead on the date of his examination in court. From his evidence it is also crystal clear that no attempt has been made on his part to procure the evidence of witnesses who would be available to depose about the factum of giving and taking.
At this stage we would dispose of Mr. Sinha's contention that since the adoptive father never asked the natural father for taking in adoption, the adoption must be held to be invalid. In support of this Mr. Sinha relied upon a decision of the Supreme Court in the case of L. Debi Prasad v. Smt. Tribeni Devi AIR 1970 SC 1286. We are afraid, nowhere the Supreme Court has laid down the aforesaid rule. In the aforesaid decision, the Supreme Court quoted the view expressed in Mayne's Hindu Law as follows : --
'.....the giving and receiving are absolutely necessary to the validity of an adoption; they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another; but the Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned;......'
In our opinion, merely because the adoptive father does not ask the natural father for the child, an adoption cannot be held to be invalid,even if it is proved that the natural father delivered the boy to the adoptive father and the adoptive father received the boy as his son. Accordingly, we do not find any force in the said submission of Mr. Sinha.
Reverting back to the only other evidence adduced by the defendant on the relationship, we find that D, W. 5 stated in his evidence 'I had seen defendant No. 2 addressing to Baluram as father. The defendant No. 2 did the sradha ceremony of his adoptive father.' But no materials have been placed to prove his special means of knowledge on the particular subject. Therefore, the third requirement of Section 50 of the Evidence Act is absent in this case and accordingly his evidence is also of no use. The evidence of D. W. 5 who is no other than defendant No. 1 him self does not express any opinion by conduct as to the existence of relationship of father and son between Baluram and Parsuram and, therefore, no reliance can be placed on that evidence in coming to a conclusion about the alleged adoption.
13. So far as the documentary evidence is concerned, we find that the defendant relied upon a deed of partnership between defendant No. 2 and some others which is Ext. L. In Ext. L, defendant No. 2 has been described as son of Baluram. This is a document to which plaintiff was not a party. It is in the nature of a self-serving statement made by defendant No. 2 and would not be admissible in evidence since it does not come within any of the exceptions contained in Section 21 of the Evidence Act. We, therefore discard that document from consideration.
The other set of documents on which reliance has been placed on behalf of defendants-respondents are Ext. F series which are summonses issued by courts to defendant No. 2 either as a witness or as an accused and in those summonses defendant No. 2 has been described as the son of Baluram. Mr. Mohanty for the respondents has submitted that these are public documents and, therefore, presumption under Section 80 of the Evidence Act can be drawn to the same. Without expressing any opinion on the same, even if we take those summonses into consideration, yet merely from those documents it cannot be held that defendant No. 2 has discharged the burden which lay on him to prove his adoption by Baluram.
14. Having thus giving our anxious consideration to the evidence adduced in the case, we are of the opinion that defendant No. 2 has not been able to discharge the burden which lay on him to prove his adoption and, therefore, the finding of the Subordinate Judge on that score is set aside. Once we hold that defendant No. 2 was not the adopted son of Baluram, the necessary corollary then is that the sale deed executed by him in favour of defendant No. 1 does not convey any title and is null and void. Consequently, the plaintiffs suit must be decreed in full and this first appeal must be allowed. Once the adoption of defendant No. 2 fails and the sale deed executed by him in favour of defendant No. 1 does not convey any title, the cross-appeal filed by defendant No. 1 respondent No. 1 also must fail.
15. In the result, the first appeal is allowed, that part of the judgment and decree of the trial court dismissing the plaintiff's suit is set aside and the part of the trial court's judgment and decree decreeing the plaintiffs suit is confirmed. The cross-appeal is dismissed. In the facts and circumstances of the case, there would, however, be no order for costs in this Court.
P.C. Misra, J.
16. I agree.