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Kangali SwaIn and ors. Vs. Dinabandhu Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 317 and 318 of 1967
Judge
Reported in37(1971)CLT217
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 11
AppellantKangali SwaIn and ors.
RespondentDinabandhu Rout and ors.
Appellant AdvocateS.K. Rahenoma, Adv.
Respondent AdvocateB.G. Das, Adv.
DispositionAppeals dismissed
Cases ReferredKishori Lal v. Mt. Chaltibai
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........appellate court in upholding the alienation under ext. 2 to the extent of a moiety share. that was title appeal no. 304 of 1965. at the instance of the plaintiff an appeal was also carried which mainly challenged the finding of the trial court in favour of adoption. that was title no. 301 of 1965. the learned appellate judge reversed the finding on the question of adoption and negatived it. he found full title of the widow. on these findings he allowed title appeal no. 301 of 1965 and dismissed the other appeal. second appeal no. 317 of 1967 is against the appellate decree in title appeal no. 301 of 1965 while second appeal no. 318 of 1967 is against the appellate decree in title appeal no. 304 of 1965 and both these second appeals are at the instance of the defendants 1 and 2.4......
Judgment:

R.N. Misra, J.

1. Naba Dibya, widow of Jagu Pani transferred to the plaintiff the entire interest in the disputed property under a registered sale deed dated 11-2-1956 (Ext. 2). The defendants 1 and 2 were transferees of the entire disputed properties from Bidyadhar, defendant No. 6 under a registered sale deed dated 3-11-1956 (Ext. A). The defendant No. 6 claimed to be the adopted son of Jagu. While the status of the plaintiff's vendor is not in dispute, the adoption of the defendant No. 6 has been seriously challenged. Issue No. 4 in the suit was on the validity of adoption of the defendant No. 6 and Issues 5 and 6 related to the validity of the alienation under Ext. 2 as also its binding effect.

2. The trial court found that the defendant No. 6 was the adopted son. Accordingly in the properties left by Jagn, the widow was found entitled to half while the adopted son was found entitled to the other half. The alienation under Ext. 2 was upheld to the extent of a moiety share which corresponded to the share of the widow in the properties of Jagu.

3. Two appeals were carried against the original decree -- one by the defendants 1 and 2 who were aggrieved by the decree of the appellate court in upholding the alienation under Ext. 2 to the extent of a moiety share. That was Title Appeal No. 304 of 1965. At the instance of the plaintiff an appeal was also carried which mainly challenged the finding of the trial Court in favour of adoption. That was Title No. 301 of 1965. The learned appellate Judge reversed the finding on the question of adoption and negatived it. He found full title of the widow. On these findings he allowed Title Appeal No. 301 of 1965 and dismissed the other appeal. Second Appeal No. 317 of 1967 is against the appellate decree in Title Appeal No. 301 of 1965 while Second Appeal No. 318 of 1967 is against the appellate decree in Title Appeal No. 304 of 1965 and both these second appeals are at the instance of the defendants 1 and 2.

4. Adoption of the vendor of the defendants by Jagu is the only point that arises for determination. Normally, whether there has been an adoption or not is a pure Question of fact and is not a matter for being canvassed in second appeal.

Mr. Rahenoma, however, contended that the lower appellate court did not consider the material documents and oral evidence in coming to its conclusions and accordingly the facts found do not bind in the second appeal. In view of such a contention I examined the materials on record as also their treatment in the lower appellate court. It is settled law that the burden to establish the adoption is on the party who propounds it and, therefore, in this case the defendants have to establish the adoption of their vendor.

The adoption of the defendant No. 8 Is claimed to be some time in 1932 or 1933, and three witnesses have been called lo support the actual giving and taking of the defendant No. 6. D. W. 1 is the Purohit, D. W. 2 is said to be a co-villager and D. W. 5 is also another villager. D. Ws. 2 and 5 are persons who were about 50 years old in 1965 when they were deposing in court. Therefore, if the adoption took place sometime in 1932 or 1933 as pleaded by the defendants, these two witnesses must have been 17 or 18 years old. Admittedly, they are not relations. It is difficult to conceive that though not related as important members of the village these young boys could then have been called to witness the adoption.

Bidyadhar (defendant No. 6) who is claimed to have been adopted, though alive, has not been examined. The courts below have, therefore, drawn adverse inference not being satisfied for his absence from the dock. No relations have also been examined in support of the claim of adoption. The daughter of Jagu is, admittedly alive and yet she has also not been examined.

D. Ws. 1, 2 and 5 came forward to depose that it was the natural mother of the defendant No. 6 who gave the boy in adoption and stated that the natural father was by then dead. This evidence was thrown out by the courts below mainly on the ground that in the document Ext. G by which Jagu had admitted the defendant No. 6 to be his adopted son, both the natural parents were stated to have given the boy in adoption. Since there was a material inconsistency between the document and the oral evidence on the question of who gave the boy in adoption, the learned appellate Judge held against the oral evidence.

5. Three documents which are mainly relied upon in support of the claim of adoption are Ext. G, the deed of acknowledgment dated 2-5-1946 and Ext. H dated 8-8-1953, the deed of cancellation of adoption 'executed by Jagu. Reliance is also placed on a gift deed executed by Jagu dated 2-5-1946 (Ext. B). On Ext. B appears an endorsement that the defendant No. 6 gave his consent to the deed of gift. It is contended that if the defendant No. 6 was not the adopted son and in that status he has not an interest in the properties of Jagu, there could be no justification for such an endorsement of no objection,

Ext. G purports to acknowledge the adoption. The original has not been produced for reasons best known to the defendants. As I have already indicated, this document shows that the natural father and mother gave the boy in adoption arid this adoption is said to have taken place many years back. Ext. H relates to cancellation of adoption. Reliance is placed on this document because there it has been stated that Jagu had accepted the defendant No. 6 as the adopted son but as the adopted son was staying away from the adoptive father and was of no assistance the adoption was being cancelled. It is true, if there has been a valid adoption such a document would absolutely be ineffective and would not take away the status of the adopted son. But the question is as to whether there has been really an adoption. Ext. 1 is a sale deed of 1927 which has been executed by the natural mother of the defendant No. 6. Therein the defendant No. 6 was described to be aged 12. If that be the age, then the plaintiff has contended that the defendant No. 6 would have been much older than he, as alleged by the defendants, by the time of adoption.

The present one was not an ancient adoption. It is claimed that the adoption took place sometime in 1932 or 1933 about 27 or 28 years prior to suit and witnesses who had seen the actual giving and taking were called to support the adoption. Whore actual evidence is available and the party claiming adoption does not seek to rely on the principle of ancient adoption and consequent loss of evidence, no allowance is available to be made on the plea that evidence might have been lost. The evidence of actual giving and taking as offered has to be scrutinised in the same way as when evidence is offered to establish any fact keeping in mind rigorous burden that lies on the party supporting adoption to establish that fact. In this case, three witnesses said to have actually evidenced to giving and taking were examined. The courts of fact have for good reasons discarded their evidence. On a review of that evidence I have also come to the selfsame conclusion.

Mr. Rahenoma for the appellants wanted to rely on a recent decision of their Lordships of the Supreme Court in the case of Debi Prasad v. Smt. Tribeni Devi, AIR 1970 SC 1286 indicated that in a case of ancient adoption where actual evidence of giving and taking is not available, the fact that the person whose adoption is in dispute has been treated in the adoptive family for a long time as the adopted son, his reputation in that status, public dealings with properties and the fact that there has been succession of his heirs to the property of his adoptive father are features which would justify upholding of the claim of adoption. Their Lordships took into account the earlier decision of their own in the case of Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378, and in the case of an old adoption where actual evidence of giving and taking was not available, to use these features as circumstantial evidence throwing sumptuous light on the claim of adoption. As I have already indicated, the adoption in question is not a very old one and direct evidence is claimed to be available.

The claim of adoption in this case does not appear to be free from suspicion apart from the fact that the adopted son has not been examined and a very competent relation has been withheld. The evidence which has been placed before the court seems to be shaky and bears suspicious features. In the absence of giving and taking, documents alone cannot bring about an adoption in law. Their Lordships in the Supreme Court in the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504 have laid down that the evidence must be clear, free from suspicion and the court must be in a position to act upon it. In this case, the evidence does not satisfy that test.

6. Though on the above contention of Mr. Rahenoma I proceeded to examine the evidence to find out whether he was right when he so contended, I find that the affirming decision of the lower appellate court leaves no room for any interference. The claim of adoption of the defendant No. 6 has been rightly negatived. The defendants 1 and 2 are strangers who but for their purchase from the defendant No. 6 have no interest in the property. Once adoption fails, Ext. A would confer no title on these defendants and in view of the fact that the sale was recent, the defendants could have acquired no title to the property. On this analysis it would follow that the courts below had taken the right view of the matter and the present appeals are liable to be dismissed.

7. Both these appeals are accordingly dismissed. There would be no order as to costs in this Court.


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