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Golak Chandra Rath Vs. Krutibas Rath and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 50 of 1970
Judge
Reported inAIR1979Ori205; 48(1979)CLT459
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 6, 11 and 16; Evidence Act, 1872 - Sections 101 to 104
AppellantGolak Chandra Rath
RespondentKrutibas Rath and anr.
Appellant AdvocateS. Mohanty and ;A.S. Naidu, Advs.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionAppeal dismissed
Cases ReferredBrij Mohan Singh v. Priya Brat Narain Sinha
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - the learned trial judge took into consideration the provisions of section 16 of the hindu adoptions and maintenance act but failed to appreciate its bearing on the litigation. the conclusion of the learned trial judge that the legal requirement in section 11(iv) of the adoption act had not been satisfied, in our opinion, has been clearly proved and, therefore, the alleged adoption is invalid in law......upon golap's death.4. the main question that fell for consideration of the learned subordinate judge was adoption of the plaintiff. in support of the claim of adoption, plaintiff placed reliance on ext. 15, the deed executed by golap on 18/19-12-1959. a photograph was produced in support of the plea of giving and taking and other requisite ceremonies. apart from these oral evidence was given in support of the factum of adoption. the learned trial judge took into consideration the provisions of section 16 of the hindu adoptions and maintenance act but failed to appreciate its bearing on the litigation. he examined the evidence on the footing that the burden to prove an adoption lay on the propounder as indicated by the supreme court in the case of kishori lal v. mt. chaltibai, air.....
Judgment:

R.N. Misra, J.

1. Plaintiff is in appeal challenging the dismissal of his suit for declaration of title and recovery of possession of 4.45 acres of land shown in 'B' schedule of the plaint or in the alternative for partition of the total area of 9.951 acres of land described in the 'A' schedule and allotment of half share therein to him,

2. One Sukadeva had two sons -- Krutibas and Bhaskar. Suka's widow is the second defendant. Krutibas is defendant No. 1. Bhaskar died in 1951 leaving behind a widow Golap. Plaintiff laid claim in the suit on the basis of having been adopted by Golap on 18-12-1959. According to the plaintiff, defendant No. 1 was a political worker and taking advantage of his position wanted to deprive Golap of her title to the property. There was a proceeding under Section 145 of the Code of Criminal Procedure which terminated in favour of the defendant No. 1. Golap having died during that proceeding, plaintiff filed the suit on 27-2-1965 for the reliefs indicated above on the basis of adoption,

3. Separate written statements were filed by defendants 1 and 2. Adoption of plaintiff was denied by both and it was pleaded that Bhaskar having died in a state of jointness, defendant No. 1 became owner of the entire property upon Golap's death.

4. The main question that fell for consideration of the learned Subordinate Judge was adoption of the plaintiff. In support of the claim of adoption, plaintiff placed reliance on Ext. 15, the deed executed by Golap on 18/19-12-1959. A photograph was produced in support of the plea of giving and taking and other requisite ceremonies. Apart from these oral evidence was given in support of the factum of adoption. The learned Trial Judge took into consideration the provisions of Section 16 of the Hindu Adoptions and Maintenance Act but failed to appreciate its bearing on the litigation. He examined the evidence on the footing that the burden to prove an adoption lay on the propounder as indicated by the Supreme Court in the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504 and held that adoption had not been established. Simultaneously he examined the contention advanced by the defendants that the adoption was invalid as there was not a gap of 21 clear years between the adoptive mother and the plaintiff and, therefore, he found against the plaintiff on the question of adoption and dismissed the suit.

5. Section 16 of the Adoption Act provides:--

'Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved'.

The statutory provision lays down a rule of presumption which requires that where there is a duly registered document of the nature indicated, the Court shall presume that the adoption was in compliance with the provisions of the Act unless and until it is disproved. It is unnecessary to deal with this aspect of the matter at length as Counsel for both sides agree that by a series of decisions of this Court, the effect of Section 16 of the Adoption Act has been set at rest. See, Shyama Sundar Padhi v. Dharanidhar Padhi (1971) 1 Cut WR 784; Manishi Krishna Murty v. Manishi Chinna Yerrayya (1971) 2 Cut WR 36 and Konchada Laxminarayan Subudhi v. Konchada Pad-manav Subudhi, AIR 1973 Orissa 3. In view of the clear position indicated in these cases, Mr. Mohapatra for the respondents concedes that the learned Trial Judge fell into an error in saying that the burden lay on the plaintiff who was propounding adoption to prove the same as in an ordinary case where there is no document satisfying the requirements of Section 16 of the Adoption Act. It is conceded by the respondents that the burden lay on the defendants who were challenging the adoption to disprove it. But for such disproof, it was not necessary for the defendants to lead independent evidence on their side. It was open to them to demonstrate from the materials on the record that the adoption as claimed did not take place as a fact or that the adoption was otherwise invalid in law and, therefore, could not be accepted. The stand taken by Mr. Mohapatra is unexceptionable.

6. In the instant case, defendants have taken the stand that the age-gap between the plaintiff and his adoptive mother on the date of adoption was less than 21 years. Section 11 of the Adoption Act provides conditions to be complied with for valid adoptions. Clause (iv) thereof runs thus:--

'if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenyone years older than the person to be adopted.'

Section 6 of the Adoption Act makes provision that no adoption shall be valid unless it be made in accordance with the other conditions mentioned in the chapter and the conditions prescribed in Section 11 are included. Therefore, violation of condition No. (iv) of Section 11 would render the adoption invalid.

7. In Ext. 15 the deed of adoption - the adoptive mother's age has been given as 27 and of the plaintiff -- the alleged adopted son -- as 3. The difference in the stated ages is 24 years. According to the defendants, plaintiff was born in April, 1954 and thus by the date of adoption, he was more than five years old. Plaintiff's date of birth has been proved from the entry in the School Admission Register. D. W. 2, the Head-Pandit of the Government U. P. School, where the plaintiff was admitted by his natural father on 15-4-1959 has been duly proved as Ext. G (sic). The natural father Jadu-nath signed in the register and his signature has also been proved. The attempt made by the plaintiff to prove that though he was 3 years old by then, his age had been enhanced to 5 has been rightly disbelieved by the learned Trial Judge. There was no rule, as pleaded by the plaintiff, that no one below the age of 16 would be allowed to take the matriculation examination and, therefore, there could be no motive in enhancing the age. In India, as judicial notice was taken by the Supreme Court in the case of Brij Mohan Singh v. Priya Brat Narain Sinha,' AIR 1965 SC 282, often a false age is disclosed at the time of admission into the School by lowering it with a view to seeking public service in later life. The learned Trial Judge, in our opinion, rightly negatived the explanation offered from the plaintiff's side that his age had been enhanced by two years at the time of his taking admission into the school. Accepting the plaintiffs date of birth to be 15th April, 1954, he was 5 years and 8 months old by the time of adoption.

In order to find out the age of the adoptive mother by the time of the deed of adoption, the learned Subordinate Judge referred to horoscopes, one produced by plaintiff's side being Ext. 14 where the date of birth was disclosed as 13-7-1932 and the other produced by the defendants vide Ext. R where her date of birth was shown as 3-7-1938. On the basis of the evidence placed before the court, the trial court came to hold that Ext. R and not Ext. 14 was the genuine horoscope. P. W. to is the natural brother of Golap. He stated that the sister was three years younger to him. P. W. 10's age in 1963 has been disclosed as 34, but in the verification, it has been described as 30. P. W. 10 has stated his age to be 30 in the verification of the pauper application. Considering P. W. 10's age to be 30 in 1963, it must be held that he was born in 1933 and since Golap was 3 years younger to him, she could not have been born prior to 1936. An attempt has been made by the plaintiff and his witnesses to shift the age of Golap. In different documents age has been described differently and witnesses have also deposed differently in the court. P. W. 6, the lawyer, who drafted the deed of adoption (Ext. 15) has stated that he had in mind the provisions of the Adoption Act while drafting the document and as P. W. 7, the natural father of the plaintiff has admitted, there was discussion with P. W. 6 prior to adoption as to what should be the age of the adopted boy and of the adoptive mother. P. W. 8 has also stated that it had been discussed with the lawyer and ascertained that unless the age-gap was 21 years between the adopter and the adoptee there would be no valid adoption. There is force in the defence contention that the age disclosed in Ext. 15 was not with reference to actual age of the two but it had been so stated keeping in view the legal requirements in Section 11 of the Adoption Act, P. W. 8 is a co-villager and a distant relation of the parties. In his evidence-in-chief, he had stated that Golap was aged about 20 or 21 at the time of adoption. It is true that the witness has been declared hostile, but nothing has been brought out in cross-examination as to why he would depose falsely to support the defendant No. 1.

The conduct of the persons interested in the upholding of adoption in the matter of enhancing the age of the adoptive child (plaintiff) which has been proved from the materials already dealt with lends support to the position that an attempt had been made to widen the gap of age between the adoptive mother and the adopted son with a view to satisfying the legal requirement and that again is a feature which probabilises the defence stand that Golap's age was also wrongly described. The conclusion of the learned Trial Judge that the legal requirement in Section 11(iv) of the Adoption Act had not been satisfied, in our opinion, has been clearly proved and, therefore, the alleged adoption is invalid in law.

8. Plaintiff came with a positive case that adoption took place on 18-12-1959. As we have already found, plaintiff was admitted into the School on 15-4-1959, Thus, adoption was an event about 8 months after the admission of the plaintiff into the School. P. W. 7, the natural father, has categorically stated in his evidence in court that:--

'By the time of adoption, Golak (plaintiff) was not admitted into school. He was admitted into school 3 months thereafter. Somanath Ratha (D. WO was the school teacher when the plaintiff was admitted. ...........'

P. W. 10 also stated:--

'...... The plaintiff is now reading in Janguli. The plaintiff went to the school about 20 days after his adoption ceremony. ......... '

From the depositions of these two witnesses, it is thus clear that there was actually no adoption on 18-12-1959 and an attempt was made to create the document and give oral evidence of a contemporaneous adoption. As a fact, it has, therefore, rightly been held by the learned Trial Judge that no adoption took place as alleged. The presumption arising under Section 16 of the Adoption Act has thus been disproved on the basis of the evidence. The claim of adoption stands negatived being not correct as a fact and also being invalid in law. Plaintiff's suit had been rightly dismissed by the trial court.

9. There is no merit in the appeal and the same is accordingly dismissed. There would be no order for costs in this Court.

P.K. Mohanti, J.

10. I agree.


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