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Balaji Mohaprabhu and anr. Vs. Narasingha Kar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 247 of 1974
Judge
Reported inAIR1978Ori199; 45(1978)CLT492
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 41, Rule 31
AppellantBalaji Mohaprabhu and anr.
RespondentNarasingha Kar and ors.
Appellant AdvocateH.G. Panda and ;B.R. Rao, Advs.
Respondent AdvocateB.K. Pal, ;B. Pal, ;N. Prusty and ;A. Mohanty, Advs.
DispositionAppeal dismissed
Excerpt:
.....1. the courts below have noted the various unsatisfactory and unconvincing features in the evidence on record on this aspect, and their reference to the same could not be branded as errors of record. ' (see air 1963 sc 185). on the above and other features noted by the courts below i am satisfied that the finding of the courts below that the alleged adoption has not been established in this case is perfectly correct and justified. on a consideration of the above-mentioned documents i am satisfied that the said documents do not in any way affect the concurrent finding of the courts below on the question of adoption......contested the suit and the other two defendants were set ex parte. defendant no. 1 admits that the suit properties, excepting items 28 and 29 of the plaint b schedule lands, belong to the deity, plaintiff no. 1. the case put forward by defendant no. 1, inter alia, is that plaintiff no. 2 was never adopted by jamuna; during the minority of jamuna the defendants were managing the affairs of the deity and its properties and they were not acting under the guidance of bada ghana patra; jamuna brought o. s. no. 216/24 against the defendants at the instance of the enemies of the defendants; that suit was compromised, but subsequently, on 11-7-31, jamuna surrendered her trusteeship right over the deity and its properties in favour of defendant no. 1 on taking a consideration of rs. 500 for the.....
Judgment:

S. Acharya, J.

1. The plaintiffs have preferred this appeal against the decision of the court below confirming the decision of the trial court dismissing the plaintiffs' suit for a declaration that plaintiff No. 2 is the hereditary trustee of the deity, plaintiff No. 1, and for other ancillary reliefs.

2. The plaintiffs' case, in short, is that plaintiff No. 2 is the sole hereditary trustee of the deity, plaintiff No. 1. Late Rama Mahanty was the last male hereditary trustee of the deity. After his death in 1920, his widow Jamuna succeeded as a trustes of the deity, but as she was then a minor, her father Bada Ghana Patra was managing the deity's affairs on behalf of Jamuna. The first defendant and his relations at times used to help Jamuna and Bada Ghana Patra in the management of the deity's affairs. In 1921 the first defendant falsely claimed to be the hereditary trustee of the deity and forcibly occupied the temple of the deity and its properties. At this Jamuna filed O. S. No. 216/24 in the court of the Munsif at Berhampur against defendant No. 1 for recovery of possession of the temple of the deity and its properties. In Feb. 1926 the suit was decreed as per the agreed terms of a compromise between the parties by which defendant No. 1 agreed to deliver possession of the deity's temple and properties to Jamuna within a month thereof. Thereafter defendant No. 1 put pressure on Jamuna and persuaded her to adopt plaintiff No. 2, the younger brother of defendant No. 1. Plaintiff No. 2 was adopted in accordance with the custom and the legal formalities by Jamuna as the son of her late husband Rama Mahanty in Falguna, 1930 on obtaining' the consent of her agnates to that effect. Thereafter she obtained possession of the temple and the deity's properties from defendant No. 1. Plaintiff No. 2 on being adopted by Jamunalived with her. After some time Jamuna temporarily appointed defendants 1 to 3 as Pujharis of the deity as she was a female and plaintiff No. 2 was then a minor. Defendants 1 to 3 were also allowed to cultivate and manage the plaint B schedule lands on payment of the net income of the same. The plaint C schedule lands were kept under khas possession of Jamuna. Jamuna died in 1959, and plaintiff No. 2, being the adopted son of Jamuna, performed her obsequies and is still performing her yearly Sradha ceremony regularly. The defendants continued to manage the affairs of the deity and cultivated the plaint B schedule lands on behalf of plaintiff No. 2 and submitted accounts of their management of the said properties to plaintiff No. 2. But since 1964 they stopped rendering accounts and since 1969 they have been denying the plaintiff No. 2's right, and title to the suit lands, and are asserting their own title as trustees of the deity and alienated some of the properties belonging to the deity. Hence this suit for declaration that plaintiff No. 2 is the hereditary trustee of the deity and he, as such, has got unfettered rights to manage the temple and the deity's properties and is entitled to possession of the said properties, and for other ancillary reliefs.

3. Defendant No. 1 alone contested the suit and the other two defendants were set ex parte. Defendant No. 1 admits that the suit properties, excepting items 28 and 29 of the plaint B schedule lands, belong to the deity, plaintiff No. 1. The case put forward by defendant No. 1, inter alia, is that plaintiff No. 2 was never adopted by Jamuna; during the minority of Jamuna the defendants were managing the affairs of the deity and its properties and they were not acting under the guidance of Bada Ghana Patra; Jamuna brought O. S. No. 216/24 against the defendants at the instance of the enemies of the defendants; that suit was compromised, but subsequently, on 11-7-31, Jamuna surrendered her trusteeship right over the deity and its properties in favour of defendant No. 1 on taking a consideration of Rs. 500 for the same; ever since that time defendant No. 1 has been acting as the hereditary trustee of the deity and is managing all its properties and is in possession of the same. It is also alleged that plaintiff No. 2 along with defendants 2 and 3 is cultivating some of the lands of the deity as Bhag tenantand plaintiff No. 2 in that capacity is in possession of the plaint C schedule properties. He further asserts that the lands in villages Bhallagada and Manikyapur, included in the plaint B schedule, were never the properties of the deity but were the self-acquired properties of defendant No. 1 alone, and accordingly the sale and mortgage of the said properties by defendant No. 1 are perfectly valid. On the above averments this defendant prays for the dismissal of the plaintiffs' suit.

4. The trial court dismissed the suit on the finding that the surrender or relinquishment deed of 1931 (Ext. R) allegedly executed by Jamuna was void and it did not confer any right on defendant No. 1; plaintiff No. 2 failed to prove that he was adopted by Jamuna as her husband's son; he could not also show his right to sue on behalf of the deity, plaintiff No. 1; and that the last two items (items 23 and 29) of the plaint B schedule lands do not belong to the deity, but the same belong to defendant No. 1.

5. In appeal the finding of the trial court on the question of adoption of plaintiff No. 2 was mainly challenged, and the appellate court confirmed that finding.

6. In this appeal Mr. Rao, the learned counsel for the appellants, made strenuous effort to assail the concurrent finding of fact of both the courts below on the question of adoption. The trial court on an elaborate discussion of the relevant evidence on record arrived at the finding that plaintiff No. 2 failed to establish that he was adopted by Jamuna to be the son of her late husband Rama Mahanty. The appellate court on an independent assessment of the evidence on record has confirmed that finding of fact. The discussion of this aspect of the matter in the appellate court judgment may not be abounding, but from the impugned judgment it is quite clear that the appellate court has considered all the important aspects of this matter.

Their Lordships of the Supreme Courtin paragraph 12 of the decision reportedin AIR 1967 SC 1124, Girijanandini v.Bijendra Narain have held:--

'It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given, by the trialCourt. Expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice.'

In this case the confirmation of the finding of the trial court on the question of adoption is not by, merely indicating general agreement to the said finding, but has been done on independent assessment of the relevant evidence on all important aspects of that matter, and the finding of the lower appellate court is, by itself, well founded and quite convincing.

7. The alleged adoption is not an ancient one and according to the plaintiffs it took place in Falguna, 1930. Plaintiff No. 2 himself named the 19 persons who allegedly were present in the said adoption ceremony, and he admitted that many of them were living at the time of the hearing of the suit. Out of those persons plaintiff No. 2 examined only one witness (P.W. 1). Both the courts below for good reasons have disbelieved the testimony of P.W, 1. The evidence of plaintiff No. 2 (P.W. 3) on this question is self-serving. Apart from that it does not get corroboration from the evidence of P.W. 1. The courts below have noted the various unsatisfactory and unconvincing features in the evidence on record on this aspect, and their reference to the same could not be branded as errors of record. D. W. 2, who according to plaintiff No. 2 was present in the alleged adoption, completely denied to have any knowledge about the said function, and has also stated that to his knowledge or information plaintiff No. 2 had not been taken in adoption by Jamuna. There is no convincing evidence of the giving and taking ceremony. Admittedly, the natural mother of plaintiff No. 2 did not give the son in adoption, though she was present in the alleged adoption and was not incapable of performing the act of giving her son in adoption. There is no evidence on record to show that Jamuna had the authority of her husband to take anybody in adoption, or that Jamuna obtained the consent of her Sapindas, which in this case would mean the agnatic relations, to make the said adoption. A proof of assent of kinsmen 'suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.' (See AIR 1963 SC 185).

On the above and other features noted by the courts below I am satisfied that the finding of the courts below that the alleged adoption has not been established in this case is perfectly correct and justified.

8. Mr. Rao submitted that non-consideration of Exts. 6, 6-a, 8, 15 and 16 led the courts to record an incorrect finding on the question of adoption.

Ext. 6 dated 29-9-66 and Ext. 6-a dated 15-4-67 are registered sale deeds executed by Narayan Mahanty, plaintiff No. 2, in favour of third parties. The dispute between the parties in respect of the deity's properties started by 1964 as admitted by plaintiff No. 2. Accordingly, the comment that the said documents were created to bolster up plaintiff No. 2's false claim to the suit properties cannot be brushed aside, more so on the convincing concurrent finding of the two courts of fact that plaintiff No. 2 was not the adopted son of Rama Mahanty. Ext. 8 is the rent schedule dated 7-10-69, i. e. of the year in which the suit was instituted. So no importance can be attached to this document. Ext. 15 is a panchayat tax receipt dated 30-6-66 in which Narayan Mahanty is shown as the son of Ramachandra Mahanty. This document is of the post dispute period and it is not prudent to draw any definite conclusion therefrom. Ext. 16 dated 22-9-66 is a registered deed of gift in favour of plaintiff No. 2. Apart from the facts that this document is also of the post dispute period and there is no proof of the fact that the old widow of 75 executed the same after understanding the contents thereof, the old executant is described as the aunt of plaintiff No. 2 and there is admission of her dependance and obligation towards plaintiff No. 2.

Moreover, it is incorrect to say that the courts below have not considered the above-mentioned documents. Though the said documents have not been separately considered one by one, in para. 8 of the trial court judgment it is stated that though in some of the documents Narayan Mahanty has described himself as the son of Rama Mahanty and in some other documents he has been described as such by the vendors or donors thereof, they are all self-serving documents and are of no consequence to prove adoption. It also appears from paragraph 11 of the impugned judg-ment that the lower appellate court hasalso considered most of those documents, but rightly did not attach any importance to them.

On a consideration of the above-mentioned documents I am satisfied that the said documents do not in any way affect the concurrent finding of the courts below on the question of adoption.

9. Mr. Rao at last submitted that the finding of the courts below that plaintiff No. 2 had no cause of action and the suit filed by him was not maintainable was incorrect as the courts below overlooked, the fact that plaintiff No. 2, being the natural born son of Binayak, the admitted uncle of Rama Mahanty, was one of the worshippers of plaintiff No. 1, the family deity, and in that capacity he had the right to institute this suit to protect the interest of the family deity.

10. At the outset it must be stated that plaintiff No. 2 has not sued in the capacity of a worshipper of the deity, plaintiff No. 1. In this suit he has prayed for a declaration that he is the hereditary trustee of the said deity and has got unfettered rights to manage the temple and the properties of the deity and is entitled to possession of the same. In stating his case to the above effect he has admitted that defendant No. 1, being a relation of Rama Mahanty, was helping Jamuna in the worship of the deity and management of its properties and affairs for some time. He also states that after his adoption by Jamuna defendants 1 to 3 were appointed Pujharis of the deity by Jamuna and they were permitted to cultivate and manage the plaint B schedule properties. Except describing himself as the hereditary trustee of plaintiff No. 1, nowhere in the plaint it is stated that plaintiff No. 2 was worshipping the deity and/or was looking after its affairs in any manner. It has been found by both the courts below that defendant No. 1 and the other defendants have been in possession of the suit properties for the last 40 years. In the plaint and in his deposition plaintiff No. 2 has admitted that defendant No. 1 is in possession of the properties of the deity and that he looks after its Sebapuja. It is neither pleaded nor alleged that defendant No. 1 and/or the other defendants ever acted or are acting adversely to the interest of the deity. The defendants admittedly are the close agnates of plaintiff No. 2, and they too are the descendants of the common ancestor Krushna Mahanty who admittedly was the hereditary trustee of the suit properties. There is nothing on record to show that these defendants are in any way acting adversely to the interest of the deity. Admittedly, defendant No. 1 was performing the Sebapuja of the deity and was cultivating the lands belonging to the deity even during the lifetime of Jamuna, and is doing so even now. Plaintiff No. 2's case that defendant No.1 was doing all that with the permission of plaintiff No. 2 is not established, nor is that believable in the context of the finding that plaintiff No. 2 is not the adopted son of Rama Mahanty, on which basis only the status to grant permission was claimed. The defendants do not claim any proprietary right to the suit properties, except the two items of property in schedule B which have been found not to belong to the deity. On the above facts, only because plaintiff No. 2 is a worshipper and he has instituted this suit, the persons who are actually performing the Sebapuja of the deity and managing its properties and other affairs for the last 40 years cannot be ousted from acting in the said manner without any proof of mismanagement of the deity's affairs or proof of their acting adversely to the interest of the deity. So in his right as a worshipper of the deity, plaintiff No. 2 also has no cause of action so far to institute a suit to remove the persons in actual management of the deity's affairs and its properties.

11. After the hearing of this appeal, a petition for amendment of the plaint was filed on behalf of the appellant on 19-12-77. A counter to the said petition was filed on behalf of defendant No. 1. In the said petition for amendment it is prayed that after para. 12 of the plaint the following paragraph may be inserted:--

'Even if plaintiff No. 2 fails to prove that he is the adopted son of late Ramachandra Mahanty, he is in actual management of the deity and its properties and is its de facto hereditary trustee and its worshipper, and as such can represent the deity in this suit to safeguard its interests and recover possession of the suit properties from the defendants on behalf of the deity.'

The statement in the said paragraph that plaintiff No. 2 is in actual management of the deity and its properties and is its de facto hereditary trustee is contrary to the concurrent findings of fact of both the courts below. So these facts cannot be allowed to be reagitated in the suit. In the aforesaid paragraph it is not asserted that the defendants in any way are mismanaging the properties of the deity or that they in any way are acting adversely to the deity's interest. Admittedly, the defendants are worshipping the deity as its Sebaits and are looking after its properties for the last 40 years. In the written statement the defendants do not claim any proprietary right over the suit properties, excepting items Nos. 28 and 29 in the plaint B schedule properties which have been found by the courts below not to belong to the deity. It is the concurrent finding of both the courts below that plaintiff No. 2 has not been able to establish his case of adoption to Jamuna, on which basis only he filed this suit. The nature and the scope of the suit will completely change if the amendment prayed for is allowed. Apart from all that, even if the amendment is allowed, that will not enable plaintiff No. 2 to obtain any decree in this suit as there is even no averment in that paragraph that the persons who are admittedly performing the Sebapuja of the deity for the last 40 years are in any way mismanaging the properties of the deity and/or are acting adversely to its interest. Law enables worshippers to institute suits on behalf of the deity only to safeguard the interest of the deity. Therefore, so long it is not shown that the persons who actually are performing the Sebapuja of the deity and are in management of its affairs and properties are mismanaging its affairs and acting adversely to its interest, no worshipper can institute a suit to unsettle the existing arrangement, much less to take over possession of the deity's properties as prayed for in the suit and in the amendment prayed for.

In the counter filed by Khali Kar, the son of defendant No. 1 (now dead) it is stated that the Endowment Commissioner by his order dated 8-7-77 has appointed this Khali Kar as an interim trustee of plaintiff No. 1 after the death of his father on 26-4-77. A copy of the said order authenticated to be a true copy by the Advocate for the respondents, has been filed as Annexure 1 tothe said counter. The above fact has not been controverted by the plaintiff No. 2.

On the above considerations the petition for amendment filed at this late stage is rejected.

12. I do not find any merit in this appeal and it is accordingly dismissed with costs.


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