R.N. Misra, J.
1. The plaintiffs are appellants. The appeal is directed against the judgment of the learned Subordinate Judge. Dhenkanal, in a suit for partition of the properties described in Schedule A to D of the plaint. Relief of declaration of exclusive title in regard to a house standing on plot No. 2797 was also asked for. The plaintiffs also prayed for permanent injunction against the defendant No. 1.
2. The parties are relations and their relationship is as shown below:
Kapila Kurti (D.2)
Gauranga (died in 1962 = widow) Gurubari (adopted by Dama Rana (D.1)
Sulai Bewa (Plff. 1)
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Kalei Sara Panchai Labani
(Plff. 2) (Plff. 3) (Plff. 4) (Plff. 5)
The plaintiffs claimed that Gurubari had been adopted out of the family since his childhood and he was actually enjoying the properties of Dama Rana, the adoptive father. Thus Gurubari had no share in the family properties, and in the properties of Kapila the plaintiffs have become owners and are entitled to their respective shares on division. The defendant No. 1 demanded a share and created disturbance in the plaintiff's possession. Some of the properties were purchased jointly by Guranga and the defendant No. 1 and some others have been purchased by Gauranga. Gurubari and Dama together. That is why a partition became necessary and separate schedules have been given in the plaint.
3. The defendants 1 and 2 filed a joint written statement. The genealogy was admitted but the adoption of Gurubari by Dama was disputed. A previous amicable partition by metes and bounds was also pleaded. The defendant No. 3 who is the widow of Dama filed a separate written statement and denied the adoption of the defendant No. 1 by Dama.
4. The learned trial Judge came to find that the plaintiffs had failed to establish the plea of adoption. He next took up the question of previous partition and held that there was no Partition as alleged by the defendants. In the writ ten statement certain properties had been shown to be joint family properties liable for partition. The trial court held that these properties as described in the schedule to the written statement were partible and included them in the hotchpot. Accordingly the preliminary decree that had been passed directed that the plaintiffs would be entitled to one-fourth share in the properties in schedules A to D and half share in the properties described in the schedule E as also the property appearing in the schedule of the written statement. He indicated the shares of the respective defendants in the various items of property as well. The plaintiffs are in appeal being aggrieved on two scores (i) negativing the claim of adoption and their claim to a higher share and (ii) the direction that the properties in the schedule to the written statement are partible.
5. Thus, the two questions which arise for determination in this appeal are in regard to the adoption of Gurubari by Dama and partibility of the properties in the schedule of the written statement.
6. The burden to establish the adoption is squarely on the plaintiffs and as has been laid down by their Lordships of the Supreme Court in the case of Kishori Lal v. ML Chaltibai. AIR 1959 SC 504 that burden is heavy. The written statement is significantly silent as to the exact date of adoption. In paragraph 2 of the plaint it has been stated:
'That the defendant No. 1 having been taken in adoption by Dama Rana from his childhood as stated in the previous paragraph has lost all his interest in the property left by Kapila Jena as he became a member of the adoptive father's family by adoption.'
P. Ws. 1. 4 and 7 are said to be witnesses of giving and taking. P. W. 1 who was the Sarabarakar of the village has claimed that the adoption of the defendant No. 1 took place about 20 years prior to his giving evidence an Court. It takes us to 1945-46. The defendant No. 1 has been said to be about 12 or 13 years at the -time of adoption. P. W. 4 claims the adoption to have taken place about the year 1943 or 1944. While P. W. 1 has made a significant statement;
'The adoption was held after the merger of Dhenkanal with the State of Orissa i.e. roughly about 2 or 3 years after the merger (meaning 1950 or 1951).'
P. W. 4 has stated:
'The adoption of Gurubari was done 5 or 6 years prior to the agitation in 1938 (which means that it was sometime in 1932-33)'.
7. Thus there is a substantial gap or variance about the time of adoption. The last witness for giving and taking on the plaintiff's side is P. W. 7. His evidence indeed is not very positive so far as the time of adoption was concerned.
8. The evidence of giving and taking as available from these three witnesses is inconsistent and contradictory not only in respect of the date of actual giving and taking but also in regard to other particulars. The oral evidence is thus not very dependable and does not satisfy the requirement as indicated by their Lordships of the Supreme Court in the aforesaid decision (AIR 1959 SC 504). The documentary evidence in support of the claim consists of an application for recognising the adoption of the defendant No. 1 made by the mother, defendant No. 3 and the order passed by the District Magistrate thereon on 9-7-55. Reliance is also placed on the plaint in a previous suit by the defendant No. 1 against P. W. 7 wherein the defendant No. 1 described himself as son of the adoptive father. That suit was ultimately compromised and the compromise petition is marked as Ext. 7. Exts. 6 and 6/a are the voters' list and Ex. 10/a is a notice issued to some of the agnates of the third defendant in the recognition of the adoption matter.
9. The voter's list appears to be most irrelevant particularly in the absence of evidence from the person who prepared it and want of evidence regarding the nature of enquiry and the authenticity of the record. I would accordingly attach no importance to the voters list.
10. The plaint (Ex. 4) and the compromise (Ex. 7) so together and can be classed for consideration under one head. Ext. 4 is the plaint in Title suit No. 1 of 1956 -- a suit under Section 9 of the Specific Relief Act. A genealogy has been appended there and the plaintiff has been shown in the genealogy as sou of Dama Rana. Apart from the description of the plaintiff in the cause-title as son of Dama and in the genealogy as son of Dama there is no reference to the question of adoption. In the compromise (Ex. 7) there is also no reference to the question of adoption. The plaintiffs relied upon the description of the defendant No. 1 who was plaintiff in the earlier suit as an admission of the adoption. The explanation of the defendant which is reiterated here by Mr. Mohanty is to the effect that he was under the control of his elder brother who stood to gain by propounding the plea of adoption. Admittedly Dama was the paternal uncle of the defendant No. 1 and his brother and Dama being alone, the defendant No. 1 had been staying with him. Even on occasions he had been addressed as father. But these by themselves cannot be over-emphasised to uphold the claim of adoption.
11. The last of the documents for consideration are the application for recognition of the adoption and the order passed thereon. The application (Ex. 1) is dated 15-4-55. Therein it was stated that Dama had adopted the defendant No. 1 and the defendant No. 1 was living with him. During his lifetime Dama could not get the adoption recognised and he was already dead for 10 years. Ex. 1/a is the order sheet of the aforesaid Adoption Case No. 6 of 1955-56. On 9-7-55 the proceeding was disposed of by the statement 'adoption recognised'.
12. The application Ex. 1 has been challenged by the defendant No. 3, the widow (adoptive mother) of Dama as one obtained under misrepresentation and D. W. 4 (defendant No. 3) denies its genuineness. No further details are available of this proceeding. Reliance is placed on the rules relating to succession obtaining in the Dhenkanal State. Chapter V of these Rules provide Inter alia: 'Besides all formalities observable under Hindu Law except to the extent, modified by local custom previous permission of the State is essential to validate all adoptions. Adoptions made without previous permission, may be recognised afterwards by the State on proof of genuineness and subject to the payment of the prescribed salami by the adoptee or his successor when the estate of the adopter descends to such persons. The rate of the salami at present has been prescribed at Rs. 5/- per acre of Sarad land and Re. 1/- per acre of Taila land. After State permission has been obtained, the adopter shall execute a registered deed to attest the fact of adoption and such deed shall be the conclusive evidence before the Mutation Department regarding the adoption. If no registered deed is executed, the adoptee, or the person interested, shall apply for the recognition of such adoption and be required to prove the actual fact of adoption and shall be liable to pav a penalty prescribed for unauthorised cases.
When an adoption has already been recognised by the State, the adoptee shall apply to the Tahsildar for mutation on the death of the adoptive father or immediately after recognition whichever is later'.
13. Relying on these provisions in the Rules Mr. Sahu, learned counsel for the appellants contended that with the recognition of adoption, though retrospectively, there could be no further dispute to the fact. The rule referred to above states that a registered deed of adoption after the necessary permission from the State has been obtained is conclusive evidence of adoption. Such conclusive-ness, however, does not attach to a retrospective recognition. In Ext. 1/a, there is no indication of due compliance of the requirements of the aforesaid Rules.
14. This rule does not avoid the performance of the formalities required to be observed under Hindu Law. Therefore until a valid adoption is established under the law, a mere recognition retrospectively granted may not be sufficient in all cases to conclusively establish such adoption. It is quite possible, there may be cases where there would be a regular proceeding, disputes would be raised and the authority would determine the question about adoption. In such a case there may be an element of res judicata.
15. It has not been shown in this Case that the Collector is the competent authority to grant the retrospective recognition. The rule extracted above does not show who the competent authority was. In the absence of necessary evidence that the Collector was competent to pass an order of recognition under the aforesaid rules I am not prepared to attach any importance to Ext. 1/a.
16. On the side of the defendants three witnesses have been examined to refute the claim of adoption. As I have already indicated the burden to establish adoption is completely on the plaintiffs who propounded the adoption. It must now be held that they have failed to establish their claim that the defendant No. 1 was adopted to Dama. The learned trial judge had taken the right view of negativing the claim of adoption and holding that the plaintiffs were entitled to one-fourth share in the properties.
17. I will now proceed to examine the other contentions in regard to the partibility of the properties shown in the schedule of the written statement. The burden on that score certainly lay on the defendants. The learned trial judge dealt with this matter in paragraph 28 of his judgment. This is how he has stated.
'These purchases were admitted by the plaintiff No. 1 in the box. She alleged that the properties were purchased in her name from out of her own funds which she got from her father. Except her uncorroborated testimony there is no other evidence on the point. In view of that I hold that the plaintiff No. 1 had no funds to acquire the properties described under item No. 3 of the schedule of the written statement. The properties described under items 1. 2 and 4 were purchased in the name of Gouranga. As he had no independent funds these properties must be held to be the family properties of the plaintiffs and defendant No. 1. It will appear that these properties were not included as the plaintiffs thought that they are their self acquisitions. In view of the discussions above, I hold that the properties described in the schedule of the written statement are the family properties and they must be brought to the hotchpot for the purpose of partition.'
18. The learned trial Judge's reasoning seems to be wholly erroneous. It is settled law that one of the coparceners can have separate property. In order to raise a presumption that these were joint family properties existence of sufficient nucleus had to be established whereafter only it would have been for the plaintiffs to show that they had not taken assistance of the joint family nucleus in the acquisition of the property and that the acquisition was out of some source of their own. As I have already indicated, the burden lay on the defendants to show that these were joint family properties and the learned trial judge went wrong in placing that burden on the plaintiffs discarding the plaintiffs' stand that the property was not liable to partition by saying that the plaintiff No. 1's evidence was not enough for the purpose. The learned trial judge also committed an error of record when he said that the purchases were admitted by the plaintiff No. 1 in the box. The plaintiff No. 1 is P. W, 8. She stated:--
'I have purchased some land from Benudhar Behera 8 or 9 years ago. My husband also purchased some land from him. I got money from my father's house for purchasing this land.'
This is not an admission of the claim in the written statement. On the other hand, there appears to be sufficient Justification in the claim of Mr. Sahu for the appellants that the defendants have failed to correlate the property in the schedule of the written statement with those properties. Mr. Mohanty had taken some time to find out the correlation, and on 21-1-71 he filed a memorandum with notice to the appellant's counsel that item No. 2 of the written statement schedule corresponded to the property in Exts. F/3 and F/4 and similarly, item No. 3 of the schedule was lot No. 2 of Ext. 4. Item No. 2 of the written statement schedule has three lots. Lot No. 2 of item No. 2 has not been identified. Similarly. Lot No. 3 of item No. 2 is not covered by plot No. 2701. Though Ex. 4 has a total area of 91 decimals it relates to two separate plots. Due care has not been taken to correlate the properties.
19. Lot No. 1 may be as described in Ext. F/3. But mere correlation or identity of the property is not enough as I have already indicated. The burden lav on the defendants to establish their claim. That they have failed to do. The direction of the trial court that the properties shown in the written statement schedule should be brought into the hotchpot is unwarranted.
20. The net result of the discussion is that the claim of adoption of the defendant No. 1 must, be negatived. To that extent the decree of the trial court must be affirmed as a result whereof the plaintiff's share would be only one-fourth in the disputed properties and not more. The claim of the defendants that the properties shown in the written statement schedule are partible which had been accepted by the trial court must stand deleted.
21. The appeal is partly allowed. Both parties would bear their own costs throughout.