S.K. Ray, Ag. C.J.
1. This appeal is by the plaintiffs. It arises out of a suit for partition in which the plaintiffs claimed -/8/- interest in 'Kha' schedule properties, and -/5/4 pies in 'Ga' and 'Gha' schedule properties. The trial Court dismissed the suit for partition except with regard to lot No. 8 of 'Ga' schedule properties in which plaintiffs were allotted -/8/- share.
2. The plaintiffs set out a genealogy in their plaint to indicate the relationship between the defendants and themselves. That genealogy is as follows:
Bhagabat Das (d)
Kanhat (d) Bidyadhar
Jogi Das (D.1) -------------------
Banambar (d) Subasi (d)
| =Banchha Sahu
Akruna (d) |
=Damel (P 1) Dharmu (D.2).
| =Saraswati (D.6)
| | | | |
Sankar (P.2) Chakar (P.3) kartick (P.4) Mana (p.5) |
| | |
Jagannath (D.3) laxidhar (D.4) Bansidhar(D.5)
(adopted by D.2)
According to their case, as will be seen from the genealogy, defendant 2 is theson of Subasi, who is sister of Banambar. Defendants 4 and 5 are natural born sons and defendant 6 is the wife of defendant No. 2. Defendant 3 who is the natural born son of Akrura is shown as adopted son of defendant No. 2, According to them 'Kha' schedule property is the ancestral property of the family. Banambar. father of Akrura and Nityananda, father of defendant 1 died one after another in a state of jointness. Upon their death, defendant 1 and Akrura being young and thus unable to look after the properties, defendant 2, sister's son of Banambar managed the property of the joint family and its affairs. Subsequently defendant 1 and Akrura with the active help and assistance of defendant 2 acquired the properties in 'Ga' schedule. 'Gha' schedule properties are the joint family movable properties. On account of the Past help rendered by defendant 2 to the family of the plaintiffs and defendant 1, the plaintiffs have conceded l/3rd share in 'Ga' and 'Gha' schedule properties to defendant 2 and his descendants. Thus the plaintiffs claimed -/8/- interest in 'Kha' schedule properties as against defendant 1 and l/3rd interest in 'Ga' and 'Gha' schedule properties. This in short, is the plaintiff's case.
3. Defendants 1, 2, 4 to 6 filed a joint written statement. Defendant 3, minor who has been represented by guardian-ad-litem has filed a separate written statement. The defence case is that the genealogy set out in schedule 'Ka' of the plaint is not correct. Their case is that Akrura though natural born son of Banambar was given away in ad-option to one Baji Maharana. In consequence, he ceased to be a member of the family of Bhagabat. The plaintiffs cannot therefore claim any interest in the suit properties. They further assert that defendant 2 is natural born son of Banambar and not the sister's son of Banambar as alleged by the plaintiffs. Defendant No. 3 is the natural born son of Akrura and was not adopted by defendant No. 2. They deny the further allegations of the plaintiffs that Subasi is the sister of Banambar. They admit that 'kha' schedule property is the ancestral property of the family. But it is claimed that lots 2 and 4 of 'Ga' schedule property are the stridhan properties of defendant 6. Lot No. 3 of 'Ga' schedule property is the self acquired property of defendant No. 2. Thus lots 2 3 and 4 of the 'Ga' schedule are not liable for partition. As to 'Gha' schedule, their case is that it is the movable property of the joint family. Defendant 3 in his written statement has put the plaintiffs to strict proof of their case. He has not claimed expressly any declaration that he is the adopted son of defendant 2.
4. The trial Court found: (a) Akrura was adopted by Ban Maharana (b) Defendant 2 is the natural born son of Banambar and not his sister's son (c) Subasi was not the sister of Banambar: (d) Defendant 3, the natural born eon of Akrura was taken in adoption by defendant 2; (e) Lot 8 of 'Ga' schedule was jointly acquired by Akrura and defendant No. 2 out of their separate earnings; and ff) Lot 3 of 'Ga' schedule is the separate property of defendant No. 2.
Accordingly, he dismissed the plain-tiff's suit for partition except in regardto lot No. B of 'Ga' schedule in whichhe gave a moiety share to the plaintiffstreating that piece of property as jointproperty of Akrura and defendant 2.
5. The plaintiffs have appealedfrom the decision of the trial Court negativing their claim to a share in the joint family properties. There is a cross appeal filed by the defendants against that part of the decision wherein it has been held that defendant 3 has been taken in adoption by defendant 2.
6. The learned counsel for the appellant concedes that if his first contention regarding the erroneousness of trial Court's finding as to Akrura's adoption by Baji Maharana does not succeed, his other contentions impeaching other findings will lose their relevancy in this appeal. We, therefore, proceed to deal with the first contention that the finding of adoption of Akrura to Ban Maharana is wrong both in law and infact.
The trial Court has elaborately discussed this issue of adoption. The onus of proof of adoption has been correctly thrown on the shoulders of the defendants and thus review of the evidence on the point has been made in the correct perspective. The actual factum of adoption has been proved by D. Ws. 1 and 2. The adoption took place in the presence of these witnesses. They have proved the physical act of giving andtaking. There are, however, minor discrepancies in their evidence regarding the number of persons present, feasting of the caste-men and preparation of the horoscope etc. But since the adoption took place a very long time back about 40 years ago every allowance for lapses of memory of witnesses should be made and in that view these two witnesses were read out in extenso and we do not find that the plaintiffs have succeeded in establishing any interestedness of these witnesses with the defendants or that they are inimically disposed towards the plaintiffs. Their testimony has. in our opinion, been rightly accept-ed by the trial Court.
There are, however, other pieces of documentary evidence amply corroborating the oral testimony. These documentary evidence are Exs. J-2 and K-2 and they are respectively plaint and written statement filed in an earlier suit (O.S. No. 155 of 1961 I) in the Court of Subordinate Judge, Bhubaneswar. That suit was filed by one Jhula Das against Akrura and others. The plaintiff described Akrura as Akrura Maharana and has given his father's name as Baji Maharana, This Akrura filed his written statement which he signed as Akrura Maharana. The trend of cross-examination of D.W. 1 clearly indicates that the plaintiffs accepted the fact that Akrura Maharana described in the plaint Ex. J-2 is really the same Akrura who is the father of the plaintiffs 2 to 5. The inevitable conclusion, therefore, is that these two documents prove that Akrura was sued as Akrura Maharana in O.S. (155/61 and he filed a written statement therein in which he signed as Akrura Maharana. D.W. 4, the Moharir of Akrura in that earlier suit has deposed that the contents were read over and explained to Akrura and his co-defendants by their lawyers as well as by him and thereupon Akrura verified the written statement. The plaintiff in the earlier suit Jhula Das is a co-villager and neighbour of Akrura and it is suggested that he described Akrura as Akrura Maharana in his plaint at the instance of the defendants. There is absolutely no basis for such suggestion which appears to be a cock and bull story. If this suggestion were plausible, it does not explain as to why Akrura who is also a co-villager and neighbour of the plaintiffs should have verified the written statement as Akrura Maharana. D. W. 4 further proved that Ex. M-2 (Vakalatnama) filed in that suit was also signed by Akrura as Akrura Maharana in his presence.
The next series of documentary evidence in support of theory of adoption are Exts. R-2 to R-14. These are a number of letters written by Akrura from Calcutta to defendant 2. There is no dispute that Akrura wrote all these letters from Calcutta where he was looking after utensil business on behalf of defendant 2 on a monthly salary of Rs. 60/-. The hand-writing and signature of Akrura on these letters have been identified by D. W. 6 (defendant No. 2). This D. W. 6 was doing utensil business and living with Akrura for a considerable period in that connection. In the circumstances, he has proved his competency to indentify the handwriting and signature of Akrura. Negative evidence has been given through the mouth of P. W. 3, who says that these documents are not in the handwriting of Akrura. This P. W. 3, however, in cross examination admits that he had no particular friendship with Akrura that he had no business dealing with Akrura and that he had never any correspondence with him. He has thus proved himself incompetent to identify the handwriting and signature of Akrura. The trial Court has rightly accepted the testimony of D. W. 6 in this matter. This piece of documentary evidence lends considerable support to the case of adoption set up by defendants.
The other circumstances which buttress the theory of adoption are that Baji Maharana had no natural born son and that Akrura was all along residing in the house of Baji Maharana. These are established by P.Ws. 1 to 3. It further appears that the house tax was separately assessed in the name of Akrura and defendants 1 and 2. If Akrura continued to be a member of the family there was no need for separate assessment of house tax in the name of Akrura and defendants 1 and 2. P. W. 2 has stated in cross-examination that Akrura lived in the house of Baji Maharana for 10 years and died there. P. W. 8, the plaintiff No. 1, has deposed that Akrura was driven out from the joint family house by defendant 2 and that Akrura was not associated with the management of the joint family property at allin fact, he was not getting a single grain of paddy from the disputed property after he was driven out. He was earning his livelihood by means of manual labour. Akrura suffered all these for long without asserting his rights. Akrura does not appear to be a spineless man who would meekly suffer denudation of his rights. He was carrying on business at Calcutta and was capable of fighting litigation as he did in O.S. 155 of 1961. His submissive conduct related by P.W. 8 is consistent with his knowledge that he having been adopted away, had no rights to fight for in his natural family. This conduct, therefore, greatly probabilises the story of adoption.
It is next contended that even if factual adoption is accepted as having taken place, it is invalid in law. This ground of invalidity is based upon two factual assertions, namely, that Baji Maharana is the sister's son of Banamali and the parties i.e., the adopter and the adoptee belong to one of the three regenerate classes. It is well known that in Hindu Law a boy cannot be adopted if the adopting father could not marry the mother of that boy and this prohibition is restricted to inter alia, sister's son. This rule, however, does not apply to Sudras. Invalidity of such adoption made against this prohibition cannot be cured by the theory of factum valet because such injunction is mandatory and not merely directory. To uphold the contention of invalidity of adoption, the plaintiffs must establish two crucial facts, namely, that Baji Maharana was the maternal uncle of Akrura and that the parties belong to one of the 3 regenerate classes. It is fairly admitted by the learned counsel for the appellants that there is no evidence on record proving Baji Maharana to be the maternal uncle of Akrura. He merely relies upon an averment in para. 5 of the plaint that people in the locality were calling Akrura Das as Akrura Maharana and taking advantage of it the defendants were falsely propagating in the village that Baji had adopted Akrura. This is not an assertion of a fact that Baji Maharana was the maternal uncle of Akrura so as to require any express denial. Apart from this bare vague averment there is not an iota of evidence on the point. Thus, even if the parties are assumed to belong to one of the three regenerate classes, in absence of proof of Baji Maharana being the maternal uncle of Akrura, the legal prohibition will not operate and the adoption cannot be impeached as invalid in law. It is argued by the respondents that the plaintiffs have also failed to prove that the parties belong to one of the three regenerate classes. It is true evidence adduced in this regard by the plaintiffs is extremely weak but, however, it is unnecessary to waste time over this aspect of the case because in absence of evidence that Baji is the maternal uncle of Akrura, this contention can-not be sustained.
We are, therefore, satisfied that the finding of the trial Court that Akrura had been given in adoption to Baji Maharana is correct and we uphold the same.
7. In view of the aforesaid conclusion we need not go into other issue, namely, whether defendant 2 is the son of Banambar or is the son of Banamabar's sister in this appeal because, whichever way that issue is decided the plaintiff's suit must fail. We, therefore, do not propose to deal with the other findings rendered by the trial Court and maintain the same.
8. A cross appeal is directed against the finding of the trial Court that defendant 3 is natural born son of Akrura and was taken in adoption by defendant 2. This issue, it appears to us was not relevant in the suit for partition. The defendant 3 in his written statement did not want a declaration that he is the adopted son of defendant 2. The trial Court need not have gone into that issue. We think that it would be proper and would serve the interest of justice, if the finding of the trial Court regarding defendant No. 3's adoption is set aside and the question left open. The plaintiffs can have no objection to this course because they have lost all interest in the family of Banambar. We, therefore, set aside the finding of the trial Court that defendant 3 was taken in adoption by defendant 2 and leave that issue open to be agitated, if necessary, in proper proceeding in future.
9. In the result, therefore, the appeal fails and is dismissed and the cross appeal is allowed. The parties are to bear their own costs of this Court.
10. I agree.