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Arakhita SwaIn Vs. Kandhuni Swain - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 44 of 1978
Judge
Reported inAIR1983Ori199; 56(1983)CLT223
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 16; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7
AppellantArakhita Swain
RespondentKandhuni Swain
Appellant AdvocateJ. Patnaik, Adv.
Respondent AdvocateR.K. Mohapatra and ;A.N. Misra, Advs.
DispositionAppeal dismissed
Cases ReferredKishore Jena v. Rupa Jena
Excerpt:
.....of adoption, the finding of the learned munsif that the defendant is not the adopted son of the late choudhury and the late chitra does not call for interference. ) 6. the facts of the present case may now be examined to see if the requirements of section 16 of the act have been satisfied. the defendant also failed to name the relations who were present at the time of adoption. , 23-4-60. in view of such inconsistent and unreliable evidence on the side of the defendant as to the giving and taking of the defendant in adoption, both the courts below have rightly come to the conclusion that the defendant has failed to establish that he had been adopted by the late choudhury and the late chitra. in the present case the factum of adoption was firmly denied by the plaintiff in the plaint..........the learned subordinate judge, aska. plaintiff is the wife of dandapani swain and daughter of the late choudhury swain and chitra swain, who died in 1960 and 1962 respectively. defendant is the son of the plaintiff and dandapani. 2. the plaintiff's case may be briefly stated. she is the only daughter of her parents and after her marriage along with her husband she lived with her parents. by their joint efforts the late choudhury and dandapani acquired some landed properties. in 1953 there was misunderstanding between the late choudhury and dandapani and hence the properties were divided by a registered deed of partition between them on 26-4-1953. at this partition about ac, 3.60 cents of land and a dwelling house fell to the share of the late choudhury and his wife who possessed the.....
Judgment:

B.N. Mishra, J.

1. This appeal has been filed by the defendant against the confirming judgment of the learned Subordinate Judge, Aska. Plaintiff is the wife of Dandapani Swain and daughter of the late Choudhury Swain and Chitra Swain, who died in 1960 and 1962 respectively. Defendant is the son of the plaintiff and Dandapani.

2. The plaintiff's case may be briefly stated. She is the only daughter of her parents and after her marriage along with her husband she lived with her parents. By their joint efforts the late Choudhury and Dandapani acquired some landed properties. In 1953 there was misunderstanding between the late Choudhury and Dandapani and hence the properties were divided by a registered deed of partition between them on 26-4-1953. At this partition about Ac, 3.60 cents of land and a dwelling house fell to the share of the late Choudhury and his wife who possessed the said properties till their deaths in 1960 and 1962 respectively. Thereafter the plaintiff possessed the said properties being the only heir. However, in March 1976 the defendant who was staying jointly with his parents, the plaintiff and Dandapani, claimed the properties of the late Choudhury and the late Chitra exclusively as his own claiming himself to be the adopted son of the late Choudhury and the late Chitra. On enquiring into the matter in May, 1976 the plaintiff came to learn that the defendant had acquired a registered document eft; 23-4-1960, styled as Dutta Grahita Dastabija from the late Choudhury and the late Chitra. On 23-4-1960 the defendant was 16 years of age and not 12 years as stated in the deed. Neither the plaintiff nor her husband had given the defendant for adoption by the late Choudhury and the late Chitra and no giving and taking ceremony had taken place. There was no adoption and if there was any adoption as claimed by the defendant, it was not to the knowledge of the plaintiff and her husband and as such was void. On further enquiry the plaintiff learnt that the deed had been scribed under instructions of the defendant and the contents thereof were never explained to the executants who had signed the document without knowing the contents thereof. The defendant unduly influenced and prevailed upon the late Choudhury and the late Chitra to execute the document which was void and inoperative in law and as such the defendant acquired no status under the same. The defendant was never treated as the adopted son of the late Choudhury and the late Chitra. After the death of her mother, the plaintiff possessed the entire properties left by her as her only heir. The plaintiff has accordingly prayed for a declaration that the deed dt. 23-4-1960 is void and inoperative and as such the defendant has acquired no status under the same.

3. In his written statement the defendant has admitted that the late Choudhury and the late Chitra, his maternal grant-parents, had died in 1960 and 1962 respectively. The defendant was residing in the house of the late Choudhury and the late Chitra from his childhood where he was brought up by the latter. While he was 12 years of age, the late Choudhury and the late Chitra adopted him, and his parents, the plaintiff and Dandapani, gave him in adoption to the late Choudhury and the late Chitra who accepted the defendant as their adopted son. In token of this adoption the lat Choudhury and the late Chitra had executed the registered adoption deed dt. 23-4-1960. The deed was executed to the knowledge of the plaintiff and her husband. After the death of the defendant's adoptive parents, all the documents including the adoption deed remained in the custody of the plaintiff. The executants of the adoption deed had fully understood the contents of the deed before execution of the same in the presence of witnesses. The defendant had not exercised any influence on his adoptive parents. The adoption is not the outcome of fraud and misrepresentation. The deed is valid and has been acted upon. The defendant has accordingly prayed that the suit should be dismissed.

4. The findings of the learned Munsif are that the defendant is not the adopted son of 'the late Choudhury, that the adoption deed dt, 23-4-1960 is neither valid nor operative under law and that the suit is not barred by limitation. The learned Munsif decreed the plaintiffs suit. In appeal the learned Subordinate Judge has held that although the deed of adoption dt. 23-4-1960 is a genuine document, the defendant having failed to substantiate his plea of adoption, the finding of the learned Munsif that the defendant is not the adopted son of the late Choudhury and the late Chitra does not call for interference. The learned Subordinate Judge has further held that the suit is not barred by limitation. The defendant's appeal having been dismissed, he has filed the present appeal before this Court.

5. Learned counsel for the defendant (appellant) has submitted that the learned lower appellate court having held that the deed of adoption dt. 23-4-1960 was valid and genuine should have upheld the defendant's plea of adoption in view of the statutory presumption available under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (hereafter referred to as 'the Act'). This argument is repelled by the learned counsel for the respondent on the ground that the deed dt. 23-4-1960 does not satisfy the requirements of Section 16 of the Act and hence the statutory presumption under the said section cannot be invoked in this case. At this stage it would be useful to refer to Section 16 of the Act which provides:

'16. Whenever any document register ed under any law for the time being inforce 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 adoptionhas been made in compliance with the provisions of this Act unless and untilit is disproved.'

Thus, Section 16 lays down a rule of presumption that where a duly registered document is produced before the Court purporting to record an adoption already made and the document is signed both by the person taking in adoption and the person giving in adoption, the Court shall presume that the adoption was made in compliance with the provisions of the Act unless and until it is disproved. The burden of proving invalidity of the adoption in any such case is on the person who challenges the adoption. In AIR 1977 Orissa 69, Md. Aftabuddin Khan v. Smt. Chandan Bilasini, this Court held:--

'.........In order that the presumption as provided in the section may be raised, the following conditions are to be complied with.-

(i) there must be a document;

(ii) it must be registered under the law in force;

(iii) it must purport to record an adoption which has taken place;

(iv) the document must be signed by both the giver and the taker of the child in adoption and not by only one of them; and

(v) it must be produced before the Court.

If any of these ingredients is wanting, the presumption does not arise.'

(Also see (1971) 2 Cut WR 36, Manishi Krishna Murty v. Manishi Chinna Yer-raya.)

6. The facts of the present case may now be examined to see if the requirements of Section 16 of the Act have been satisfied. Ext. A is the certified copy of the registered deed of adoption dt. 23-4-1960. According to the recitals in the deed the defendant was adopted on 23-4-1960 and the deed was executed in token of acceptance of the defendant as the adopted son by the late Choudhury and the late Chitra. The plaintiff has examined herself as P. W. 2. She has stated that she did not know under what circumstances the deed of adoption came to be executed. She has also stated that when she came to learn about the existence of the adoption deed, she had not ascertained as to who was the scribe and who were the attesting witnesses. In view of these statements of the plaintiff, the allegations contained in the plaint that the plaintiff had ascertained from the scribe and the attesting witnesses that the deed of adoption had been drafted as per the instructions of the defendant and that the executants had signed the same without knowing its contents, cannot be said to have been established. On the other hand, the defendant, who examined himself as D. W. 1, has stated that he was present at the time of execution and registration of Ext. A. D. W. 2 is one of the witnesses to Ext. A. He has stated that the deed was scribed in the house of the late Choudhury in his presence by one Pana Patnaik. In his presence both the late Choudhury and the late Chitra had put their signatures on Ext. A at the office of the Sub-Registrar at Aska. D. W. 2 and one Magata Panigrahi had attested the document. Nothing has been elicited in the cross-examination of D. W. 2 to raise any doubt about due execution of Ext. A by the late Choudhury and the late Chitra. Nothing has been established to show that the defendant had practised any fraud, misrepresentation or undue influence over the executants of Ext. A. I would therefore, agree with the learned lower appellate Court that the deed is a genuine registered document. This finding, however, is not the end of the matter. On examining Ext. A it is seen that it has been executed by the late Choudhury and his wife, the late Chitra, but neither the plaintiff nor her husband Dandapani has signed the document. One essential ingredient of Section 16 of the Act, i. e., the person giving the child in adoption must sign the deed, is wanting in Ext. A. As this essential ingredient is wanting, the statutory presumption under Section 16 of the Act cannot be invoked in respect of Ext, A.

7. It is now necessary to scrutinise the evidence on record to see if the factum of adoption of the defendant by the late Choudhury and the late Chitra has been established apart from Section 16 of the Act. The plaintiff (P. W. 2) and her husband (P.W.I) have both stated in court that they had never given their son, the defendant, for adoption by the plaintiff's parents, the late Choudhury and the late Chitra. Their evidence in this regard remains unshaken in cross-examination. In his deposition the defendant (D. W. 1) has stated that his adoption took place in the month of Baisakh and (D. W. 4) had officiated as the priest at the adoption ceremony. According to the defendant, a barber and a conch-blower were present at the ceremony, but they have not been examined. The defendant also failed to name the relations who were present at the time of adoption. The defendant also asserted that D. W. 3 was present at the time of adoption, but D. W. 3 has stated that he had not seen the actual adoption ceremony. D. W. 2 is a witness to the deed of adoption Ext. A. He has stated that he had no personal knowledge about the actual adoption ceremony. D. W. 4, the priest, has stated that he had performed the adoption ceremony. He does not remember the Tithi or the date On which the adoption ceremony took place, but he is sure that it was in the month of Chaitra. This statement of D. W. 4 contradicts the defendant's statement to the effect that the adoption ceremony had taken place in the month of Baisakh. It is also worthy of note that while the defendant has stated that the adoption deed was executed and registered two days prior to the date of the actual giving and taking ceremony, the recital in the deed Ext. A is to the effect that the adoption took place on the date of execution of Ext. A, i. e., 23-4-60. In view of such inconsistent and unreliable evidence on the side of the defendant as to the giving and taking of the defendant in adoption, both the courts below have rightly come to the conclusion that the defendant has failed to establish that he had been adopted by the late Choudhury and the late Chitra.

8. Learned counsel for the appellant has further urged that as the prayer in the plaint is for a declaration that the deed of adoption dt. 23-4-1960 is invalid, the declaration by the courts below that the defendant is not the adopted son of the late Choudhury and the late Chitra is invalid being in excess of the relief claimed by the plaintiff. Reference may be made first to the prayer in the plaint which is as follows:--

'The plaintiff, therefore, prays that the Hon'ble court may be pleased to pass a decree in her favour-

(i) For a declaration that the deed dt. 23-4-1960 is void and inoperative under the law and as such the defendant acquired no status under the same,

(ii) For the costs of this suit and

(iii) For such other relief or reliefs as the Hon'ble court deems proper under the circumstances.'

In the plaint it has been specially stated by the plaintiff that she and her husband had not given the defendant in adoption, that there was never any adoption or any giving and taking ceremony, that even if there was any adoption, it was not to their knowledge, that the defendant was never treated as the adopted son by his adoptive parents and that the defendant had not acquired any status under the deed of adoption. In AIR 1953 Orissa 285, Kishore Jena v. Rupa Jena, it was held that when and if the Question arose as to whether a particular relief had been asked for, the whole of the plaint should be taken into consideration and the substance and not merely the form of the plaint, should be looked into and that under Order 7, Rule 7 C. P. C., the court could grant a relief which had not been specifically prayed for, if the court thought it just and proper that such a relief should be given. In the present case the factum of adoption was firmly denied by the plaintiff in the plaint while the defendant in his written statement clearly asserted the Plea of adoption. An issue was framed on this question and parties led full evidence in this regard. In such circumstances there can be no question of any prejudice or lack of notice to the defendant In these circumstances I would agree with the learned lower appellate Court that the plaintiff is entitled to a declaration that the defendant is not the adopted son of the late Choudhury and the late Chitra.

9. On the question of limitation I agree with the courts below that Article 57 of the Limitation Act governs this case and that the suit has been filed within time. No other point has been urged in this appeal.

10. In the result, this appeal is dismissed on contest with costs. The judgments and decrees of the courts below are confirmed.


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