1. This is an appeal by defendants 1 and 8 and arises out of a suit for partition. In order to appreciate the controversy in the present case, it is necessary to set down the family pedigree which is shown below:
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Madhu Gopinath Gangadhar Ekadashi
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-------------------- --------------- Janaki --------------
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Gopal Jayaram Nanda Ganeswar Rajkishore Abhiram Lambodar Sadhu
| Dead (1930) | =Sati (D.5). | (D.7)
Golak | Mohani (D.4). lehha
(D.2) | (D.3). Brundaban
Jagannath Krushna (Dead 1947)
(D.1) =Chanchala (Plff.)
=Swarnalata Adopted by
(D.8). Lokanath Swain (D.W.1.)
One Bidyadhar had four sons, namely, Madhu Gopinath. Gangadhar and Ekadasi. Madhu had three sons, namely, Gopal, Jayram and Nanda. Of them, Nanda died long ago and we are not concerned with that branch. Jayram died in the year 1930. Jagannath defendant No. 1 is the eldest son of Jay-ram and Swarnalata defendant No. 8 is Jagannath's wife , Jayram had another son by name Krushna who died in the year 1947 and the plaintiff Chanchala is admittedly Krushna's widow. Defendant No. 2 is the son of Gopal and defendants 3 and 4 are grandsons of Gopinath. Defendant No. 5 is the grandson of Gangadhar. Defendants 6 and 7 represent Ekadasi's branch being his great grandson and son respectively.
2. In the year 1964. Chanchala instituted the suit for partition giving rise to this appeal claiming an eight annas share in the properties covered by Schedules A and D, a four annas share in the property covered by Schedule B and one anna share in the C schedule property. According to her, after Bidyadhar's death, his properties were divided amongst his sons. The B schedule property fell to Madhu's share and the C schedule property remained undivided. Jayram therefore had an eight annas share in the Schedule B property and consequently the plaintiff claimed a four annas share therein. Inthe C schedule property Madhu had a four annas share and consequently Jayram had two annas share therein. The plaintiff therefore claimed a one anna share in the C schedule property. So far as properties covered by Schedules A and D are concerned, it is the plaintiff's case that these properties belonged exclusively to Jayram and consequently the plaintiff claimed an eight annas share therein. Defendants 9 to 21 were impleaded in the suit as alienees of some of the properties forming the subject-matter of the suit.
3. The substantial defence raised by defendants 1 and 8 was that a few days after the birth of the plaintiff's husband Krushna, he had been taken in adoption by his maternal uncle Lokanath Swain (D. W. 1) and that consequently Krushna lost all rights he had in the original family with the result that the plaintiff is not entitled to any share. It was stated that lot Nos. 2. 5. 7 and 13 of schedule A did not belong to the family lots 2, 7 and 13 having been purchased by defendant No. 1 out of his own funds and lot No. 5 having been purchased by defendant No. 8 from out of her Stridhan. It was further contended that as some of the properties which belonged to the family have not been included in the plaint schedules, the suit for partial partition is not maintainable in law. Certain other evermerits were made in the written statement which after consideration by the learned Subordinate Judge have been rejected by him and the correctness of the same is not challenged before us. It is, therefore, unnecessary to make any detailed reference to the same. Defendants 15 and 21 filed written statements supporting the case of defendants 1 and 8. Defendants 9 to 13 without admitting any of the plaint allegations stated that they would have no objection if a decree for partition was passed in the suit.
4. The learned Subordinate Judge disbelieved the plea of the contesting defendants that Krushna had been adopted by his maternal uncle Lokanath. He also held that even assuming that the adoption in fact took place an adoption by a maternal uncle of his nephew is not valid in the absence of a custom to that effect and no such custom has been established. He accepted the plea of defendants 1 and 8 regarding their claim to lot Nos. 2, 5 and 7 of the A schedule property but rejected their claim regarding lot No. 13 of that schedule. Regarding the maintainability of the suit he held that a suit for partial partition is maintainable under certain circumstances and that such circumstances exist in this case. In the result, he passed a preliminary, decree declaring the plaintiff's title to an eight annas share in the plaint A schedule property excluding therefrom the three items in respect of which he held that defendants 1 and 8 had exclusive title, a four annas share in the plaint B schedule property and a one anna share in the plaint C schedule property. So far as plaint D schedule movables are concerned he directed that the list should he substituted by the list of inventory prepared by the Commissioner and certain other directions which the learned Subordinate Judge had given and directed that an eight annas share therein be allotted to the plaintiff. Defendants 1 and 8 being aggrieved by the decision have filed this appeal.
5. The substantial question that was argued before us is the one relating to the alleged adoption of Krushna by his maternal uncle Loknath (D.W. 1). Undoubtedly a very serious onus lay upon defendant No. 1 to establish it and the sole question for consideration is whether the evidence on record is sufficient to establish that the adoption did take place. Although the exact date of birth of Krushna is not on record there is no dispute that he was born sometime about the year 1925 at village Bondala. According to the contesting defendants it is on the twenty-first day of the birth of Krushna that he was given in adoption to his maternal uncle (D. W. 1).
6. The four witnesses who speak about the giving and taking ceremony at the alleged adoption are D.Ws. 1, 2, 6 and 8. D. W. 1 being the maternal uncle and D. W. 2 being the person who is said to have officiated as barber at the ceremony. D. W. 8 is defendant No. 1 and D. W. 6 is a resident of Bondala. D. W. 1 described the ceremony thus:--
'There was Satyanarayan Puja on the occasion of 21st day ceremony of Krushna in village Bondala where and when I took him as my adopted son Puja and Pala were performed on the ceremony. After it was over Jairam made over Krushna to me saying that as you asked for the son I hereby give you. 1 accepted Krushna as my son, Rasananda Bank acted as my barber.' D. W. 1 says that immediately after the adoption ceremony, he did not bring the boy to his village Bada Bhimraipur but it war, a year after the adoption that he brought Krushna and his mother to Bada Bhimrajpur where they stayed for about a month. As the boy was suckling the mother's breast, he was not kept by D. W. 1 at his house on that occasion but mother and the child returned to Bondala. It was only when the boy was five years old that D. W. 1 brought him to his house where he lived thereafter till his death in 1947. In the year 1960, the present defendant No. 1 Jagannath Mohanty had filed Title suit No. 138 of 1960 in the Court of the Munsif Jaipur against Sadananda Mohanty and two others of village Bondala for a declaration of his title to certain lands and for confirmation of his Possession therein. The defendants in that suit had contend-ed inter alia that the suit was bad for non-joinder of parties as Chanchala (the present plaintiff) the widow of the brother of the plaintiff in that suit was a necessary party thereto. The plaintiff in that suit countered this contention on the ground that Chanchala's husband Krushna had been adopted by his maternal uncle. This maternal uncle who is D. W. 1 in the present litigation was examined as P. W. 4 in that suit. Those he had deposed that the person who officiated as barber at the adoption ceremony was dead. During the cross-examination of D. W. 1 his attention was drawn to his previous statement which has been marked as Ext. 11 (b) D.W. 2 is Rasananda Barik who claims that in the capacity of a barber of D. W. 1 he accompanied Lokanath to Bondala and attended the adoption ceremony. It seems by then he was only 10 to 11 years old. He admits that by the time the ceremony took place, his own father was alive. D. W. 2 was also examined as P. W. 5 in the previous suit (T. S. 138/60).
But he did not depose in that suit that he had attended the adoption ceremony. In fact, as earlier pointed out, the statement of Lokanath (D. W. 1) in that suit was that the barber who attended the adoption ceremony alone with him was dead. Obviously in an attempt to reconcile these two statements, D.W. 2 stated that his father also had been to Bondala on the day the adoption ceremony took place. But he left the village at 4 p. m. because he had to attend a Sudhi ceremony. This is altogether a new story and if there was any truth in the statement now made by D.W. 2 that he had attended the adoption ceremony nothing prevented him from saying so in the previous suit. We are, therefore, not prepared to place any reliance on the evidence of D.W. 2 that he had witnessed the alleged adoption ceremony. D.W. 6 claims to be another, witness who was present at the adoption ceremony. His version is as follows: 'I attended the 21st day ceremony of Krushna on which date the adoption took place. Pothi Puia was performed by a Brahmin Boli Panda in the Thakuraghar on the front verandah. Jayaram brought the child to the place of puja. After the child was placed at the place of worship Lokanath requested Jayaram to give the baby to him and thereafter Jairam said I have not made up my mind. How can I give But Lokanath said he would adopt. Jayaram made over the child to Lokanath.'
If adoption had really taken place on the day as alleged such a decision to give the boy in adoption must have been taken much earlier than the day on which the adoption is said to have taken place. If that be so, there would be no occasion for Jayaram to say that 'I have not made up my mind. How can I give ?' This dramatic touch which D.W. 6 wanted to lend to his evidence only exposes its hollowness and shows that the evidence given by this witness cannot be relied upon. In view of the categorical statement of D.W. 1 that the witnesses to the adoption of Krushna are all dead, it appears to us that such of the witnesses as are now coming forward to depose about the adoption cannot be believed. The last witness who speaks about the adoption ceremony is defendant No. 1 examined as D.W. 8. He states that his brother Krushna was adopted on his 21st day by his uncle and that after the Puja his father brought the child to the place of worship and handed over the child to his maternal uncle Lokanath who accepted the child in adoption. In the previous suit (T.S. 138/60) however where he was examinedas P.W. 3 he stated that Krushna was aged 4 or 5 years when his adoption took place and that after Satyanarayan Pala was over, his mother gave the child to his maternal uncle (Exts. 12 and 12/c).
7. Having carefully considered the evidence regarding the alleged adoption ceremony we are satisfied that the evidence is so discrepant and untrustworthy that no reliance can be placed on the same. Mr. H.G. Panda, learned Advocate for appellants contends that this adoption had taken place round about the year 1925 and as it was sought to be proved about 40 years thereafter in 1967, every allowance for the absence of any evidence to prove such a fact has to be favourably entertained. Doubtless under the Hindu Law, giving and receiving of the boy are rather absolutely necessary for the validity of an adoption and it is therefore to be satisfactorily proved that the boy was given by his natural father and received by the adoptive father. Cases may arise where after a very long lapse of time a dispute may arise as to whether such an adoption had taken place and it is conceivable that at that distance of time persons who had witnessed the adoption ceremony are dead. It is therefore impossible in such cases to prove by direct testimony that giving and taking ceremony had actually taken place and on that ground the adoption cannot be disbelieved. One has in such circumstances to rely on circumstantial evidence. Long recognition as an adopted son raises a strong presumption regarding the validity of the adoption Evidence showing that the boy was treated by relations including the person who later on challenges the same, for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. But it is not the defendant's case that persons who were present at the adoption ceremony are all dead. At least four witnesses have come forward to sav that they were present at the alleged adoption ceremony. When such is the case, the evidence has to be scrutinised like any other evidence and so scrutinised we find that it is absolutely unworthy of credence.
8. A number of witnesses have been examined some on the defendant's side to say that Krushna was living in the house of Lokanath Swain as his son and some on the plaintiff's side to say that Krushna was never adopted by Lokanath, that he was never living in his house and that he was all along staying in his father's house at Bondala. It is in evidence that Lokanath Swain has two daughters who are older in age thanKrushna. If Lokanath had ever adopted Krushna these two daughters should have surely known about it. It is significantthat they were not examined in the suit. The contesting defendants sought to make capital of the fact that Krushna died in the house of Lokanath a fact not denied by the plaintiff. While the defendants would say that Krushna was living in the house of Lokanath Swain all along and died there, it is the plaintiff's case that Krushna had been on a casual visit to his uncle's house where he fell ill and died. There is nothing unusual about such an explanation. At any rate, this single circumstance would not in any wav help the defendants to establish that Krushna was the adopted son of Lokanath Swain.
9. Lokanath Swain the alleged adoptive father of Krushna had married twice. Through his first wife he had two daughters and three sons. These three sons died but the daughters are alive. Shortly thereafter his first wife died Lokanath was then about 36 years old. He married a second wife who was then 17 to 18 years old. According to D. W. 1 a year after he married the second wife he had taken Krushna in adoption. It is very strongly contended by Mr. Swain appearing for the respondents that it is highly unlikely that when Lokanath was only 36 years old and married a second wife, he would have thought of taking a boy in adoption. This is not a case where Lokanath had found himself to be impotent. He bad as many as five children born through his first wife although unfortunately the three sons died one after the other. He had taken a second wife who at the time of marriage was only 17 to 18 years old and he must have naturally expected at that time that some issues would be born through her. In fact, three issues were born through his second wife, the eldest one a male child having been born two years after the second marriage. That male child died immediately after birth, the second issue was also a male child and he lived upto his 14th year. His name was Sarat. It is true that if there is other wise very satisfactory and un-impeachable evidence about the adoption the circumstances discussed above would not be sufficient to falsify such evidence. But, as indicated above the evidence adduced on the defendant's side regarding the actual adoption being highly unsatisfactory, the circumstances discussed above only go to strengthen the plaintiffs contention that not only was there no satisfactory evidence about the adoption, but that the circumstantial evidence also shows that there could not have been any adoption.
10. Lokanath was a teacher of his village school. Ext. 6 is the entry in the School Admission Register showing that his son Sarat was admitted in the School on 4-1-1934. This entry said to be in the hand-writing of Adikanda Misra the Head Pandit of the School was proved by P. W 4. If Lokanath had adopted Krushna one would naturally expect Lokanath to set him admitted in the School and if in the Admission Register Krushna would have been described as the son of Lokanath that would have been a very strong piece of evidence in favour of the defendants. But there is no evidence to show that Krushna ever read in the Primary School at Bhimraipur. It is obviously to get over this difficulty that Lokanath stated that he never got any of his sons admitted in the School but only taught them at home. This statement cannot be believed. Although by the time Lokanath was examined in Court Ext. 6 was already there he did not deny that this entry did not relate to his son Sarat. On the other hand the plaintiff relies on Ext. 1 which is an entry in the Admission Register of 'the Bondala School showing that one Batakrushna Mohanty son of Jayaram Mohanty had been admitted in that school. Evidence is let in on the plaintiff's side to show that Krushna the husband of the plaintiff was also known as Batakrushna. If this evidence is believed and it is held that Ext. 1 relates to the plaintiff's husband, it would completely belie the defendant's case that Krushna had been adopted by Lokanath and had been living in his house at Bhimraipur. There is no evidence to show that besides Jayaram Mohanty the father of defendant No. 1 there was any other Jayaram Mohanty in village Bondala whose son could be Batakrushna referred to in Ext. 1. It, therefore, appears to us that there is some truth in the plaintiff's case that Krushna was also known as Batakrushna and that Ext. 1 reates to the plaintiff's husband.
11. The appellants rely on Ext. A/1 an entry in the Voter's list of 1958. It is said that this list relates to Bhimraj-pur village. Ext. A/1 shows that one Chanchala Bewa wife of Krushna Chandra Swain was registered as a voter of that village, D.W. 3 Proves this entry. We get it from D.W. 3 that Bhimraipur is included in Rameswar Grama Pan-chavat. But Ext. A the certified copy of the voter's list shows that it is in respect of mouza Rahapada comprised in Gopi-nathpur Grama Panchayat. It is therefore difficult to accept Ext. A as relating to Bhimraipur village. Assuming that Ext. A relates to Bhimraipur, it is significant that the name of Lokanath SwainD.W. 1 does not find mention in the Voter's List. If as is now contended bythe appellants, the plaintiff, after the death of her husband was living in the house of Lokanath, one would naturallv expect that Lokanath Swain's name also should find place in the voter's list in respect of house No. 22 against which Chanchala's name is mentioned Ext. A/1 therefore does not in any wav help the appellants.
12. On the plaintiff-respondent's side reliance is placed on Ext. 7/a and Ext. 8. Ext. 7 is a mortgage bond of the year 1926 executed by one Ananda Pra-dhan in favour of Jayaram Mohanty the father of defendant No. 1. P.W. 5 has deposed that when the mortgage was discharged defendant No. 1 Jagannath Mohanty on behalf of himself and his brother Krushna made the endorsement Ext. 7/a on the bond and returned it to Ananda Pradhan, Apart from making this endorsement on the bond Jagannath on behalf of himself and his minor brother Krushna is also alleged to have passed the receipt Ext. 8 to Ananda Pradhan. Exts. 7 and 8 are said to have been obtained from Ananda Pradhan's son. Defendant No. 1 was confronted with these two documents and he denied the signatures purporting to be his on these two documents. We find on examination of these documents that the dates out on Exts. 7 (a) and 8 had been corrected. We therefore do not consider it safe to place any reliance on these two documents especially when defendant No. 1 had denied the signatures to be his. Moreover, P. W. 5 does not say that he was present when Ext. 7/a and Ext. 8 were executed. No explanation has been offered as to why the son of Ananda Pradhan from whose custody Exts. 7 and 8 are said to have been obtained was not examined to prove the entries.
13. Another document on which reliance is placed on the plaintiff-respondent's side is Ext. 4 which is a plaint in a certificate case started against defendant No. 1 and his brother Krushna and some others in the year 1926 by the Darpan Darna Estate. In that plaint, Krushna Mohanty is described as the son of Jayaram Mohanty and being minor was represented by his mother Sadhabi Bewa. P. W. 2 has proved this plaint as being in the handwriting of one Narayan Mohanty a clerk in Naib Tahasildar's office and it bears the seal of the Certificate Officer. Its genuineness cannot therefore be doubted. If as is alleged, Krushna had been adopted by Lokanath and he therefore ceased to be a member of his natural family as lone ago as in the year 1925, it is not explained how inthe year 1936 he could have been sued along with other members of his natural family for recovery of rent and how in the plaint Ext. 4 he could have been described as the son of Jayaram Mohanty. This is a circumstance which belies the story of the alleged adoption.
14. The plaintiff's husband was admittedly the son of Jayaram Mohanty and the younger brother of defendant No. 1. It is on that footing that she has filed the suit for partition claiming a share in Jayaram's properties. Defendant No. 1 seeks to defeat her claim on the allegation that her husband had been adopted by his maternal uncle Lokanath Swain and the onus lay upon him to establish by satisfactory evidence that such adoption had taken place. After a careful examination of the evidence on record both oral and documentary, we are satisfied that not only defendant No. 1 has failed to establish adoption by cogent and satisfactory evidence but that the circumstances indicate that no such adoption could have taken place. The learned subordinate Judge was therefore, correct in rejecting the plea of adoption. In view of this finding, it is unnecessary for us to answer the further question whether the adoption if true is valid in law.
15. The only other substantial contention urged on behalf of the appellants is that all the terms of family Properties having not been included in the suit a suit for partial partition is not maintainable. Although as a general rule, a suit for partition must comprise the entire family property still there are exceptions to this rule which have been recognised. A suit for partial partition has been allowed when the portion excluded is not in the possession of coparceners and may consequently be deemed not to be available for partition. A suit for partial partition has also been accepted when the portion excepted is impartible property. The rule has also been relaxed when the portion is held jointly with strangers who have no interest in the family partition. The relief claimed by the plaintiff in the Present suit is to carve out certain specific shares from out of the interest which her father-in-law Jayaram had in certain properties and to allot the same to her. If she has left out any property in which Jayaram had an interest it may be possible to construe that she has relinquished her right to a share in that property and if in future she claims any share therein, it may be possible to resist her claim on the ground that she had previously relinquished her right therein. The plaintiff is an illiterate widow who is not in possession of the documents relating to the family properties and consequently notin a position to know all the properties which her family possessed. She has therefore, sought for partition in respect of only such of the properties which to her knowledge belonged to the family. In the circumstances, therefore, we see no reason why the entire suit should be dismissed on the ground that some other Items of property in which the family has an interest have not been included in the suit. We, therefore, overrule this contention and hold that the suit as framed, was maintainable.
16. In the result, we would uphold the judgment and decree passed by the learned Sub-ordinate Judge and dismiss this appeal with costs.
S.K. Ray, Ag. C.J.
17. I agree.