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Durgapada Jana Vs. Nemai Charan Jana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberS.A. No. 12 of 1981
Judge
Reported inAIR1986Cal23,1985(2)CHN357,90CWN95
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 105 - Order 22, Rule 5 - Order 41, Rules 22 and 24; ;Hindu Adoptions and Maintenance Act, 1956 - Section 11; ;Evidence Act, 1872 - Section 68
AppellantDurgapada Jana
RespondentNemai Charan Jana and ors.
Appellant AdvocateShyama Prasanna Roy Chowdhury and ;Mrinal Kanti Ray, Advs.
Respondent AdvocateSudhis Das Gupta and ;Suchit Kr. Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredGopal Das v. Sri Thakur
Excerpt:
- .....1968, the learned assistant district judge in directing substitution of the appellant in place of dukhidasi also granted leave to the defendants to file an additional written statement. when a court orders for substitution of a person in place of a deceased plaintiff, there is no scope for granting leave to the defendants to file an additional written statement. as the learned assistant district judge granted leave to the defendants to file additional written statement, it meant that the order for substitution was not final. in other words, the learned assistant district judge wanted to decide the question of adoption of the appellant at the final hearing of the suit. the defendants nos. 1 and 2 filed an additional written statement challenging the adoption of the appellant. the learned.....
Judgment:

M.M. Dutt, J.

1. This is a plaintiff's appeal preferred against the judgment and decree of the 1st Court of the Additional District Judge, Midnapore, affirming those of the 2nd Court of the Assistant District Judge, Midnapore, dismissing the plaintiff's suit.

2. The suit was filed by the original plaintiff, Sm. Dukhi Dasi, praying for a declaration of her title to the suit property and recovery of possession thereof after setting aside the registered deed of gift dated April 26, 1949 executed by her in favour of the defendants Nos. 1 and 2. A further prayer was made by the plaintiff for a declaration that the defendants Nos. 3 to 9 had not acquired any title to the suit property by virtue of their purchase of the same from the defendants Nos. 1 and 2.

3. The original plaintiff Sm. Dukhi Dasi, since deceased, was the second wife of one Gaya Jana. Gaya Jana married one Rashmoni and, after her death, he married Dukhi Dasi. The defendants Nos. 1 and 2 are the sons of Gaya Jana by his first wife. Dukhi Dasi had a son, Lakshikanta, and a daughter Kadambini. The suit property belonged to Gaya Jana and, after his death, the same devolved upon Lakshikanta. Lakshikanla having died unmarried, Dukhi Dasi inherited the suit property as the heiress of her son. It is the case of the defendants that she made a gift of thesuit property to the defendants Nos. 1 and 2, her step-sons, by a registered deed of gift dated April 26,1949. The suit, as stated before, was filed by her, inter alia, for the cancellation of the said deed of gift.

4. Dukhi Dasi died during the pendency of the suit. After her death, one Durga Pada Jana, the present appellant, made anapplication praying for his substitution in place of the deceased Dukhi Dasi alleging that he was taken in adoption by the deceased. The learned Assistant District Judge by his order No. 74 dated February 12, 1968, allowed the prayer for substitution without, however, recording any finding as to whether there was any valid adoption or not. By the said order, the learned Assistant District Judge granted leave to the defendants to file an additional written statement. Pursuant to the said leave, the defendants Nos. 1 and 2 filed an additional written statement challenging the validity of the alleged adoption. The learned Assistant District Judge, however, did not frame any additional issue on the question of adoption, nor did he record any finding in respect thereof.

5. The case of the defendants was, inter alia, that they had been possessing the suit property by virtue of the deed of gift which was lawful and that, in any event, they had acquired title to the suit property by adverse possession. Further, they also challenged the validity of the adoption of the said Durga Pada Jana by Dukhi Dasi.

6. The learned Assistant District Judge came to the findings that the deed of gift was quite legal and valid, and that the defendants Nos. 1 and 2 had been in possession of the suit property by virtue of the deed of gift. Upon the said findings, the learned Assistant District Judge dismissed the suit.

7. On appeal by the plaintiff, the learned Additional District Judge came to the findings that as the execution of the deed of adoption by Dukhi Dasi was not accompanied by actual delivery of the boy to her by his father, there was no valid adoption. So far as the deed of gift in favour of the defendants Nos. 1 and 2 is concerned, the learned Additional District Judge held that although it was a genuine document and that the suit property was giftedto the defendants Nos. 1 and 2 by Dukhi Dasi, yet the document was not legally admitted into evidence as the execution and attestation of the deed was not proved by one of the attesting witnesses. The learned Additional District Judge, however, found that the deed of gift was executed by Dukhi Dasi with full knowledge of its contents. In view of his finding that the deed of gift was not legally admitted into evidence, the learned Additional District Judge held that it could not be looked into and considered. The learned Additional District Judge, at the same time, came to the finding that the defendants Nos. 1 and 2 had acquired title to the suit properly by adverse possession independently of the deed of gift, and that by purchase from them the defendants Nos. 3 to 9 had acquired valid title thereto. Upon the said findings, the learned Additional District Judge dismissed the appeal. Hence, this second appeal.

8. It has been strenuously urged by Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing on behalf of the plaintiff appellant that the learned Additional District Judge was not justified in re-opening the question of adoption and substitution of the appellant in place of the deceased Dukhi Dasi as her adopted son. It is submitted that after the application for substitution was allowed in the presence of the defendants by the said order No. 74, dated February 12. 1968 of the learned Assistant District Judge, such substitution was final for the purpose of the suit. In other words, it was not open to the defendants to challenge that the appellant was not lawfully adopted by Dukhi and hence the order of his substitution was illegal. In support of his contention, the learned Advocate for the appellant has placed much reliance upon the provision of Order 22, Rule 5 of the Code of Civil Procedure which provides, inter alia, that there a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. It is contended that after such determination by the Court, the question of substitution cannot he re-opened.

9. In this connection, we may recall that by order No. 74, dated February 12, 1968, the learned Assistant District Judge in directing substitution of the appellant in place of DukhiDasi also granted leave to the defendants to file an additional written statement. When a Court orders for substitution of a person in place of a deceased plaintiff, there is no scope for granting leave to the defendants to file an additional written statement. As the learned Assistant District Judge granted leave to the defendants to file additional written statement, it meant that the order for substitution was not final. In other words, the learned Assistant District Judge wanted to decide the question of adoption of the appellant at the final hearing of the suit. The defendants Nos. 1 and 2 filed an additional written statement challenging the adoption of the appellant. The learned Assistant District Judge should have framed an issue as to the validity or otherwise of the alleged adoption and decided the same.

10. Secondly, we are unable to accept the contention of the appellant that the lower appellate Court was not justified in allowing the defendants to re-open the question of substitution of the appellant in place of the deceased Dukhi Dasi. An order for substitution is not an appealable order and, in view of Section 105, Order41, Rule 22(1) and Rule 24 of the Code of Civil Procedure, the defendants respondents were entitled to challenge the order for substitution. We, therefore, reject the contention of the appellant that the lower appellate Court had no jurisdiction to consider the question of validity of adoption of the appellant and his locus standi to prosecute the suit filed by Dukhi Dasi.

11. It has been found by the lower appellate Court that there was no actual delivery of the appellant by his father to Dukhi Dasi. There can be no doubt that the performance of the ceremony of giving and taking is a mandatory requirement for a valid adoption, and that the very ceremony of giving and taking is in itself symbolic of transplanting the adopted child from the family of its birth to the adoptive family. See Lakshman Singh v. Rup Kumar, : [1962]1SCR477 ; Kartar Singh v. Surjan Singh, : [1975]1SCR742 . Indeed, clause (vi) of section 11 of the Hindu Adoptions and Maintenance Act, 1956 provides as one of the conditions for a valid adoption that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the familyof its birth to the family of its adoption. As, therefore, there was no ceremony of giving and taking, the adoption of the appellant by Dukhi Dasi was not a valid adoption and he could not be substituted in her place as her adopted son. In other words, the appellant had no locus stand! to prosecute the suit instituted by Dukhi Dasi.

12. It is however, urged on behalf of the appellant that in view of section 16 of the Hindu Adoptions and Maintenance Act, 1956 there is a presumption in favour of the adoption of the appellant by Dukhi Dasi. Section 16 provides that 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. It is submitted on behalf of the appellant that in view of the presumption under section 16 of the Act, onus was upon the defendants to disprove such adoption. The lower appellate Court has found as a fact that there was no giving and taking of the appellant at the time of his adoption. It has been further found by the lower appellate Court that in the School Admission Register, the appellant has been recorded as the son of his natural father. Further, it has been admitted by the appellant's father in his evidence that the appellant has been residing with him ever since his birth. Thus any such presumption of adoption stands rebutted by the above findings of fact by the lower appellate Court. It may be stated here that Mr. Roy Chowdhury has not challenged the above findings of the lower appellate Court. Thus there was no valid adoption of the appellant by Dukhi Dasi and, accordingly, the lower appellate Court was perfectly justified in holding that the appellant had no locus standi to prosecute the suit.

13. The respondents have filed a cross-objection against the finding of the lower appellate Court that the deed of gift (Ext. A) executed by Dukhi Dasi in favour of the defendants Nos: 1 and 2 was not legally admitted into evidence. Mr. Sudhis Das Gupta, learned Advocate appearing on behalf of the defendants respondents submits that the lowerappellate Court committed an error of law in holding that the deed of gift was not legally admitted into evidence. The deed of gift was admitted into evidence and marked Ext. 'A' after the appellant had waived formal proof of the same. It has been observed by the lower appellate Court that in view of section 68 of the Evidence Act, even though formal proof was waived, yet it was incumbent on the part of the defendants to prove due execution of the deed of gift by an attesting witness. Section 68 of the Evidence Act provides as follows,:

'68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive, and subject to the process of the Court and capable of giving evidence :

Provided that it shall not be necessary to call an attesting witness in proof of the Execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.'

14. Section 68 lays down the mode of proof of a document required by law to be attested When a document is admitted after forma! proof being waived, it means admission by the party waiving such formal proof of the due execution of the document. Under section 68, one of the attesting witnesses, if there be any one alive, has to prove the execution of the document required by law to be attested. But if the execution itself is admitted by a party, the question of further proving the execution of the document by an attesting witness will not arise.

15. Moreover, it is submitted by Mr. Das Gupta that after the document is admitted in evidence upon formal proof being dispensed with and without any objection by the appellant, the appellant was debarred from challenging before the lower appellate Court the admission of the deed of gift into evidence. In support of that contention. Mr. Das Gupta has placed reliance upon a decision of the Privy Council in Gopal Das v. Sri Thakur, AIR 1943 PC 8.1. In that case, it has been laiddown by their Lordships of the Privy Council that where the objection to be taken is not that the document is itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record; a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. Thus the mode of proof of a document cannot be challenged for the first lime before the Court of appeal. The lower appellate Court, in our view, was not justified in re-opening the question of admission of the deed of gift (Ext. A) into evidence on the ground that one of the attesting witnesses was not examined by the defendants to prove execution of the said document. The said finding of the lower appellate Court is illegal and cannot be sustained. There is, therefore, substance in the cross-objection of the defendants respondents.

16. It is next urged on behalf of the appellant that the finding of the lower appellate Court of acquisition of title to the suit property by the defendants Nos. 1 and 2 by adverse possession of the same for over 12 years, is not a finding in accordance with law. It is submitted that the onus was upon the defendants to prove adverse possession of the defendants Nos. 1 and 2 for over the statutory period of 12 years. It is contended that although it has been found that the defendants Nos. 1 and 2 had been in possession of the suit property in assertion of their own right and title for over 12 years, such possession cannot be considered as adverse so that it may ripen into little after the statutory period, inasmuch as there is no finding by the lower appellate Court that the defendants Nos. 1 and 2 denied the title of Dukhi Dasi to the suit property.

17. We do not think there is any substance in the above contention made on behalf of the appellant. The assertion of their own title by the defendants Nos. 1 and 2 to the suit property meant denial of the title of Dukhi Dasi. An affirmative implies negative. It has been found by the lower appellate Court that the defendant Nos. 1 and 2 had been possessing the suit property in assertion of their own title to the same adversely to that of Dukhi Dasi. Such finding of the lower appellate Court is quite inaccordance with law and being a finding of fact, cannot be challenged in a second appeal. The defendants Nos. 1 and 2, therefore, had acquired title to the suit property by adverse possession. It has, however, been already held that the suit property had been lawfully gifted to the defendants Nos.. 1 and 2 by Dukhi Dasi by the deed of gift (Ext. A). No other point has been urged in this appeal.

18. For the reasons aforesaid and subject to our finding that the document (Ext. A) was legally admitted into evidence, the judgment and decree of the lower appellate Court are affirmed and this appeal is dismissed. The cross-objection is allowed.

19. There will, however, be no order for costs in this appeal or in the cross-objection.

J.N. Chaudhuri, J.

20. I agree.


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