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Maheswar Parida and ors. Vs. Maiana Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 78 of 1961
Judge
Reported inAIR1964Ori174
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 32(5)
AppellantMaheswar Parida and ors.
RespondentMaiana Bewa and ors.
Appellant AdvocateB.K. Pal, ;D.P. Mohapatra and ;A. Mohanty, Advs.
Respondent AdvocateM. Mohanti and ;N.C. Mohanti, Advs.
DispositionAppeal dismissed
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the appellant's right to sue depends on his success in establishing that he was the validly adopted son of prabhakar......raghu | __________________|__________ | | | | | | janar- kanhei giridhari dinbandhu | dan (d.4) dead puna (dead) | (defdt) ____________|____________ | | | dharmu madhaba madhu=nayana (defdt.1) wife = rani 'dead = paraba | | | adopted | gadadhar (d.3) - chitra (d,3) | natural mother of | gadadhar. __________|__________________ | | ratna-kar provakar (dead) kar alias = w. domi (dead) bhobani | plff. 1. | maheswar (plaintiff-2) (adopted).2. the original plaintiffs in the suit were ratnakar, plaintiff no. 1 and maheswar (plaintiff no. 2). the disputed properties originally belonged to dharmu who left a son named prabhakar. plaintiff no. 2 maheswar claimed to be the adopted son of prabhakar. the main defendants were navana (defendant no. 1) widow of madhu, brother of dharmu and gadadhar.....
Judgment:

Narashimham, C.J.

1. This is an appeal by the plaintiff No. 2 against the judgment and decree of the Subrodinate Judge of Puri,dismissing the suit of the plaintiffs for declaration of title and recovery of possession. The following genealogical tree is necessary to appreciate the claims of the parties.

PERUSHOTTAM PARIDA

______________________|________________________

| |

Rama Lakhmana

________________________|

| |

Nabina Raghu

| __________________|__________

| | | | |

| Janar- Kanhei Giridhari Dinbandhu

| dan (d.4) dead Puna (dead)

| (Defdt)

____________|____________

| | |

Dharmu Madhaba Madhu=Nayana (Defdt.1)

Wife

= Rani 'dead = Paraba

| |

| adopted

| Gadadhar (d.3) - Chitra (d,3)

| natural mother of

| Gadadhar.

__________|__________________

| |

Ratna-kar Provakar (dead)

kar alias = W. Domi (dead)

Bhobani |

Plff. 1. |

Maheswar

(plaintiff-2)

(Adopted).

2. The original plaintiffs in the suit were Ratnakar, Plaintiff No. 1 and Maheswar (Plaintiff No. 2). The disputed properties originally belonged to Dharmu who left a son named Prabhakar. Plaintiff No. 2 Maheswar claimed to be the adopted son of Prabhakar. The main defendants were Navana (defendant No. 1) widow of Madhu, brother of Dharmu and Gadadhar (defendant No. 2) who is the daughter's son of Madhaba another brother of Dharmu, but who claimed to have been adopted by Madhaba. His natural mother is Chitra (defendant No. 3. The other co-sharers were included as there was a prayer for partition of the joint property. The appellant's right to sue depends on his success in establishing that he was the validly adopted son of Prabhakar.

3. It is admitted that Prabhakar died sometimes in 1933, but it was alleged that the appellant was adopted by him sometime in 1927. The most important piece of documentary evidence which renders the story of appellants adoption highly improbable is the deposition of Pravakar himself in Ext. N-3 dated 9-11-32 where he gave his age as 26 years and further stated that as his father was ill he was looking after his affairs. Hence, if in 1932 Pravakar was fit enough to look after his family affairs, it is difficult to believe that he would have thought of adopting the appellant Maheswar as his son at the early age of 20 years in 1926-27. Moreover, according to P. W. 5 Prabhakar was also a married man then and it is difficult to believe that he would have lost all hopes of begetting a son. Further more, the plaintiffs own witness P. W. 12 stated that Prabhakar was afflicted with epilepsy only for about two years before his death. This means that the illness started sometime in 1931. Hence there was no special reason why he should have thought of adopting Maheswar in 1926-27.

4. Apart from this circumstance, there is no document signed by Prabhakar acknowledging Maheswar as hisadopted son. The earliest document on which the appellant had relied, to prove the adoption, is a mutation entry in a Khatian (Ext. 10). It shows that Maheswar's name was mutated in place of Prabhakar sometime in 1935, but as against that entry the contesting defendants proved another mutation entry Ex. B dated 11-9-1945 in which Maheswar was described as the son of Dharmu. This only shows that too much value need not be attached to the mutation entries. In the same khatian (Ext. 10) the appellant has been described as the son of Divakar Parida.

5. There was a previous litigation between some of the parties in title suit No. 69 of 1947 and title suit No. 15 of 1950. In the former suit the question of appellant's adoption by Prabhakar was agitated but by his judgment dated 10-2-1959 the learned Subordinate Judge, Puri, held that Maheswar was not the adopted son of Prabhakar. In the latter suit also the Court by its judgment (Ext M-1) disbelieved that the story that Maheswar was the adopted son of Prabhakar though in this suit the appellant had given evidence. It is true that these decisions will not operate res judicata as the appellant was not a party but they have great evidentiary value under Section 13 of the Evidence Act, especially the judgment In the latter suit where Maheswar had given evidence.

6. It is true that the plaintiff appellant has proved several documents in which the appellant has been described as the son of Prabhakar, but these documents are all of dates subsequent to 1947, when the dispute as to whether he was the adopted son of Prabhakar had already arisen. Hence they have not much evidentiary value.

7. Coming to the evidence relating to the giving and taking of Maheswar in adoption, there are innumerable contradictions in the evidence of witnesses which have been noticed and discussed in the judgment of the lower court. Some of the witnesses do not appear to have personal knowledge of the family affairs of Prabhakar so as to speak with authority on the factum of adoption.

8. To crown all this there is the damaging admission by the appellant's natural father, Lokenath Jena P. W. 6) to the effect that the appellant Maheswar 'has interest in my properties'. If the appellant had been given away in adoption to Prabhakar he cannot have any interest in the properties of his natural father.

9. In the aforesaid state of the evidence the lower court was justified in holding that the case of adoption has not been satisfactorily proved.

10. The judgment and the decree of the lower court are therefore affirmed and this appeal is dismissed, but there will be no order for costs of this Court.

Barman, J.

11. I agree.


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