Shri Murari Mohan Misra vs Shri Shyama Charan Misra & Ors
2022 Latest Caselaw 2126 Cal

Form No. J (1)

                       IN THE HIGH COURT AT CALCUTTA
                        CIVIL APPELLATE JURISDICTION
Present:

The Hon'ble Justice Biswajit Basu.

                              S.A. No. 173 of 1997

                          SHRI MURARI MOHAN MISRA
                                    VS.
                      SHRI SHYAMA CHARAN MISRA & ORS.


For the appellant:                         Mr. KanailLal Mondal,
                                           Ms. Susmita Pal.

For the respondent no. 3:                  Mr. Asit Kumar Rout,

Mr. Sibasis Ghosh.

For the respondent no. 2:                  Mr. Rajat Kumar Dhar.

For the respondent no. 1:                  Mr. Falguni Bandopadhyay



Heard on             : 28.03.2022

Judgment on          : 20.04.2022

Biswajit Basu, J. :

1. The present second appeal is at the instance of the plaintiff in a suit for

eviction of licensees and is directed against the judgment and decree dated

March 21, 1996 passed by the Assistant District Judge, District 24-Parganas

(Undivided) in Title Appeal No. 53 of 1995 thereby reversing the judgment and

decree dated February 28, 1995 passed by the 3rd Court, Learned Munsif,

Sealdah, District- 24 Pagranas(Undivided) in Title Suit no. 477 of 1986.

2. One Surendra Nath Mishra was the admitted owner of the premises No.

15 Pravuram Sarkar Lane, Kolkata-700015. The plaintiff claiming to be the

adopted son of the said admitted owner filed the said suit for eviction of the

defendants from the entire ground floor and one room with one R.T. shed

kitchen on the second floor of the said premises, describing them as licensees

under him. The defendants are full blood brothers of the plaintiff. The plaintiff

in the suit also claimed title over the suit premises on the basis of a deed of gift

allegedly executed by the said Surendra Nath Mishra.

3. The defendants contested the said suit on a defence that the plaintiff is

not the adopted son of the said Surendra Nath Misra, and the deed of adoption

on the basis of which the plaintiff is claiming title over the suit premises was

never acted upon, further defence of the defendants in the said suit was that

on the death of the admitted owner of the suit premises, their great-

grandfather, they have acquired right, title and interest over the suit property

as co-sharers thereof.

4. The learned Trial Judge, on the basis of the pleadings of the parties

framed the following issues:

"1. Is the suit maintainable in its present form?

2. Are the defendants licensees over the suit property or are living there on their own right?

3. Is the plaintiff, the adoptive son of Suren? If so, is the exclusive owner of suit property?

4. Is the plaintiff entitled to get the decree as prayed for?

5. To what other reliefs, if any is the plaintiff entitled?"

5. The plaintiff in the suit deposed as P.W.1 and cited another witness to

prove the ceremonies performed at the time of adoption of the plaintiff. The

plaintiff proved the deed of adoption dated June 18, 1948 as Exhibit. 1, the tax

receipt of the said premises issued by the Kolkata Municipal Corporation as

Exhibit. 2, the certificate issued by the Head Master of Buthnath Mahamaya

Institution, the school of which the plaintiff was a student as Exhibit. 3, the

affidavit affirmed by the biological father of the plaintiff on June 18, 1960 as

Exhibit.4, the record of rights of some lands as

Exhibit. 5, a sale deed executed by the plaintiff on December 12, 1961 as

Exhibit. 6 and the certificates issued by the Chief Operating Manager of the

Calcutta Tramways Company Ltd., the erstwhile employer of the plaintiff as

Exhibit. 7(series).

6. The defendants on the other hand cited four witnesses including the

biological mother of the parties. The defendants proved the death certificate of

Surendra Nath Misra as Exhibit. A, two trade licenses, one in the name of the

Karunamoy Misra and other in the name of the plaintiff as Exhibits.B and B1

respectively, one letter issued by the Head Master of the aforesaid School

authorising one Maniklal Pal to depose in the suit to prove the fees register of

the said school for the years 1955, 1956 and 1957 as Exhibit. C and the

appointment agreement of the plaintiff in the Calcutta Tramways Company Ltd.

as Exhibit. D.

7. The said deed of adoption since was executed in the year 1948, i.e. prior

to the commencement of the Hindu Adoptions and Maintenance Act, 1956,

both the Courts below, in deciding the issus involved in the suit placed reliance

on different sections under Chapter XXIII of Mulla on principles of Hindu Law.

8. The biological mother of the plaintiff deposed in the suit as D.W.1. She in

her evidence stated that she never gave the plaintiff in adoption as he was her

eldest son. The learned Trial Judge held that since under the old Hindu Law,

the primary right to give his son in adoption was with the father and the

mother had no right to give her son in adoption without the permission of the

father, while the father is alive and capable of consenting, the consent of the

mother in giving the plaintiff in adoption was not necessary and discarded the

evidence of the said witness. The defendants' challenged the validity of the said

adoption for want of the ceremony of Datta Homa was overruled by the learned

Trial Judge holding that in case of "twice-born classes" particularly when the

gotra of the adoptive father and the adopted son is same, non-performance of

the said ceremony would not affect the validity of the said adoption.

9. The learned Trial Judge discarded the Exhibit. D, the employment

agreement of the plaintiff wherein he was described as the son of Karunamoy

Misra, his biological father on the ground that the plaintiff only signed the said

document, somebody else had filled up the other portion of the said agreement,

therefore, the said entry in the said aggrement is of no consequence. The

learned Trial Judge placed heavy reliance on Exhibit. 4, the affidavit of the

biological father of the plaintiff, the record of rights standing in the name of

Surendra Nath Misra, the adoptive father of the plaintiff, in respect of some

lands being Exhibit. 5 and the sale deed executed by the plaintiff being Exhibit.

6 in holding that the plaintiff is the adopted son of his great-grandfather

Surendra Nath Misra.

The learned Trial Judge accordingly decreed the suit by declaring the

title of the plaintiff over the suit property and holding that the defendants are

nothing but licensees under the plaintiff.

10. The defendants aggrieved by the aforesaid judgment and decree preferred

an appeal before the Court of learned Assistant District Judge at Sealdah,

District- 24 Parganas (Undivided) out of which the present second Appeal

arises. The appeal Court below by the impugned judgment and decree has set

aside the judgment and decree of the learned Trial Judge holding that by the

deed of adoption i.e. Exhibit 1, adoption of the plaintiff was only proposed,

without any physical act of giving and taking the plaintiff in adoption which is

a necessary requirement to constitute a valid adoption as mandated under the

old Hindu Law, as such the said deed of adoption cannot said to be acted

upon. The appeal Court below further held that from the Exhibit. 6 it cannot be

inferred that the properties sold under the said deed belonged to Surendra

Nath Misra, the adoptive father of the plaintiff.

11. The appeal Court did not approve altogether rejection of the evidence of

the biological mother of the plaintiff by the learned Trial Judge on the ground

that in the absence of the biological father of the plaintiff, a party to the said

deed of adoption, the biological mother of the plaintiff is the best available

witness who can throw light on the disputed issue of the factum of adoption of

the plaintiff and held that when the biological mother of the plaintiff is denying

the said factum, burden heavily lies upon the plaintiff to prove the validity of

his adoption, which the plaintiff has failed.

12. The appeal Court below held that the evidence of the plaintiff as P.W.1

and the evidence of one Sukumar Ghosh cited by the plaintiff as P.W.2 to prove

the ceremonies held on the occasion of adoption are contradictory and from the

evidence of the P.W.2, it cannot be ascertained whether physical act of giving

and taking of the plaintiff in adoption did take place, although to validate an

adoption it is necessary that there should be some overt act to signify the

delivery of the boy from one family to another i.e. from the natural family of the

boy to the family adopting the boy. The appeal Court on the analysis of the

Exhibit. 1 held that by the said deed, the adoption was only proposed but it

was not acted upon as it was written in future tense.

13. The appeal Court below futher held that the mentioning of the name of

the biological father of the plaintiff in the Exhibit. D, i.e. the employment

agreement of the plaintiff and his admission in evidence that his biological

father gave his marriage as Karta of the family also signify that the said deed

was not acted upon. The admissions of the plaintiff in his evidence that his

biological mother had no desire to give him in adoption and he was never

treated as the adopted son of Surendra Nath Misra, were treated by the appeal

Court as the final blow to the case of the plaintiff and accordingly allowed the

said appeal.

14. The present second appeal was admitted without framing any substantial

question of law, as such, this Court after hearing Mr. Kanai Lal Mandal,

learned advocate for the appellant on March 11, 2022 was prima facie satisfied

that the following substantial question of law needs to be answered in the

present second appeal: -

"Whether the appeal court below has committed substantial error of law in discarding the deed of adoption (Exhibit -1) on the ground that the same has not been acted upon?"

15. Mr. Mondal submits that the validity of the deed of adoption can only be

challenged within the period of limitation prescribed under Article 57 of The

Limitation Act, 1963 as such the defendants cannot challenge the validity of it,

long after expiry of the said prescribed period of limitation. Mr. Mondal in

support of his such contention refers to an unreported judgment dated May 08,

2020 passed by the Division Bench of the Karnataka High Court in the case of

Smt. Rudramma D/o Late Basappa vs. Shri Shivamurtheppa (R.F.A No.

100102 of 2015) and also decision of the learned Single Judge of this Court in

the case of SOMA CHATTERJEE VS. CHAPALA CHATTERJEE reported in

(1990) II DMC 312. He also refers to the decision of the Single Bench of the

Karnataka High Court in the case of VEERABHADRAYYA R. HIREMATH VS.

INAYYA A.F. BASAYYA HIREMATH reported in ILR 2006 Kar 1740 to

contend that the defendants not being a party to the said deed of adoption has

no locus standi to challenge the validity of the said deed.

16. Mr. Mondal, supporting the judgment of the learned Trial Judge, submits

that the learned Trial Judge on assessment of the entire evidence-on-record

has held that the adoption of the plaintiff is valid and was acted upon, the

appeal Court below cannot reverse the said findings unless the same are

perverse. He by placing reliance on the decision of thr Hon'ble Supreme Court

in the case of SANTHOSH HAZARI vs. PURUSHOTTAM TIWARI (DECEASED)

BY L.R.S. reported in (2001) 3 Supreme Court Cases 179 argues that in an

appeal under Section 96 of the Code, the Appellate Court must be conscious

that findings of fact based on conflicting evidence arrived at by the Trial Court

must weigh with the appeal Court, more so when the findings are based on oral

evidence but in the preent case, according to him, the appeal Court below in

reversing the judgment and decree of the learned Trial Judge did not follow the

said principle, as such, has committed substantial error of law in holding that

the deed of adoption i.e. Exhibit. 1 was not acted upon.

17. Mr. Asit Kumar Rout, learned advocate for the respondents refuting the

said contentions of Mr. Mondal submits that the deed of adoption was never

acted upon, mere existence of the said deed is not sufficient to prove the

adoption unless it is accompanied by actual giving of the minor and taking of

him in adoption, in support of his such contention he cites the decision of the

Judicial Committee in the case of MAHASHOYA SHOSINATH GHOSE VS.

KRISHNA SOONDARI DASI reported in (1879-80) 7 Indian Appeals 250 and

the decisions of the Hon'ble Supreme Court in the case of LAKSHMAN SINGH

KOTHARI VS. RUP KANWAR (SMT) ALIAS RUP KANWAR BAI reported in AIR

1961 SUPREME COURT 1378 and in the case of M. GURUDAS AND OTHERS

VS. RASARANJAN AND OTHERS reported in (2006) 8 Supreme Court Cases

367.

18. He further argues that the deed of adoption was written in future tense,

which the learned Trial Judge failed to consider but the Appeal Court has

righty interpreted the said deed in holding that by the said deed, the adoption

of the plaintiff was only proposed but was not given effect to as the plaintiff,

even after execution of the said deed of adoption, claimed his share in the

money left by his biological father in his Bank account and also appeared in a

suit as his heir and the said conduct of the plaintiff leaves no room for any

doubt that the said deed of adoption was never acted upon.

19. He relying on the decision of the Hon'ble Supreme Court in the case of

NASIB KAR AND OTHERS VS. COL. SURAT SINGH (DECEASED) THROUGH

L.R.S AND OTHERS reported in 2013 (2) ICC (SC) 337 finally submits that

the appeal Court below on the basis of the clinching evidence produced on

behalf of the respondents, has reversed the judgment and decree of the learned

Trial Judge which cannot be interfered with in a Second appeal.

Heard learned advocate for the parties, perused the materials-on-record.

20. The Hon'ble Supreme Court in the case reported in (2001) 3 Supreme

Court Cases 179 (supra) relied on by Mr. Mondal has held that in an appeal

under Section 96 of the Code, the Appeal Court ought not to interfere with the

finding of the learned Trial Judge on the question of fact unless the latter has

overlooked some peculiar feature connected with the evidence of the witness or

such evidence on balance is sufficiently improbable so as to invite

displacement by Appeal Court. Let me now consider whether the appeal Court

below has followed the said principle laid down by the Hon'ble Supreme Court

in the said decision in reversing the judgment and decree of the learned Trial

Judge and holding that the said deed of adoption was never acted upon.

21. No doubt under the Old Hindu Law, the father had the primary right to

give his son in adoption but when the dispute is whether the deed of adoption

on the basis of which the plaintiff is claiming to be the adopted son of his

great-grandfather was at all acted upon or not, the evidence of the biological

mother in the absence of the father cannot be brushed aside altogether on the

sole ground that her consent for giving the plaintiff in adoption under the Old

Hindu Law was not necessary, particularly when she has denied the factum of

said adoption, the appeal Court below, under such circumstances has not

committed any error in giving credence to the evidence of the biological mother

of the plaintiff.

22. The plaintiff in his evidence has admitted that his biological father being

the Karta of the family gave his marriage and in his ration card he has been

described as the son of his biological father. The plaintiff has also admitted in

his evidence that in his Life Insurance policy he mentioned the name of

Karunamoy Misra as his father. He also admitted in his evidence that after the

death of his biological father, he appeared in a suit before the Sealdah Court as

one of the heirs of his deceased biological father and to get his shares in the

savings of his deceased biological father in the bank, he signed papers as one

of his heirs. The deed of sale or the entry of the name of the adoptive father of

the plaintiff in the R.S.R.O.R have no relevance in deciding the issue of

adoption of the plaintiff, the learned Trial Judge, therefore, has erroneously

placed reliance on the said documents in coming to a conclusion that the

plaintiff is the adopted son of his great-grandfather.

23. The biological father of the plaintiff in his affidavit of declaration affirmed

on June 18, 1960 being Exhibit. 4 has stated on oath that till the plaintiff

attained majority, he acted as his natural guardian, such statement of the

biological father of the plaintiff is a serious jolt to the case of the plaintiff,

which the learned Trial Judge failed to appreciate, the assessment of the said

document by the appeal Court in coming to the conclusion that the deed of

adoption was never acted upon is well within the scope of an appeal under

Section 96 of the Code.

24. The plaintiff in his appointment agreement with the Calcutta Tram

Company, was described as the son of his biological father, the finding of the

learned Trial Judge that the plaintiff has only signed the said documents,

somebody else filled up the said form and on the said ground discarded the

said document being Exhibit. D is based wholly on surmises and conjectures

inasmuch as neither the plaintiff has made out such a case nor there is any

evidence on record supporting the said finding of the learned Trial Judge.

25. The learned Trial Judge held that for "twice born classes"

neither the Datta Homa nor giving and taking ceremony is necessary.

The Judicial Committee in the decision reported in (1879-80) 7 IA 250 (supra)

and the Hon'ble Supreme Court in the decisions reported in AIR 1961 SC

1378 (supra) and (2006) 8 Supreme Court Cases 367 (supra) cited by Mr.

Rout has held that giving and taking of the minor in adoption is a necessary

requirement for a valid adoption. Therefore, even if the requirement of holding

the ceremony of Datta Homa for "twice born clases" can be dispensed with, the

requirement of giving and taking the minor in adoption cannot. The appeal

Court below, therefore, has rightly held that the plaintiff having failed to prove

that there was overt act on the part of the two families in giving and taking the

plaintiff in adoption, an essential requirement for a valid adoption, the deed of

adoption cannot said to be acted upon.

26. In an action for eviction, the plaintiff can succeed only on the strength of

his own title, not by the weakness of the case of the defendant (See: LALA

HEM CHAND vs. LALA PEARY LAL AND OTHERS reported in 76 CLJ 451).

In the present case, the plaintiff is seeking a decree of eviction of the

defendants from the suit property on the strength of his title, therefore,

irrespective of the weakness of the defence of the defendants in the suit, the

burden is upon the plaintiff to prove his title over the suit property, as such

any kind of incapacity of the defendants to challenge the validity of the deed of

adoption through which the plaintiff is claiming such title would not enure to

the benefit of the plaintiff, consequently the decisions relied on by Mr. Mondal

on these two points i.e. Smt. Rudramma D/o Late Basappa vs. Shri

Shivamurtheppa (supra), (1990) II DMC 312 (supra) and ILR 2006 Kar 1740

(supra) are misplaced.

27. The plaintiff in the plaint, although claimed that his adoptive father

executed a deed of gift in respect of the said premises but, neither the said

deed was produced nor the plaintiff advanced his such claim in the suit. The

plaintiff in the suit traced his title through the said deed of adoption, as such,

to get the relief as prayed for in the suit he is required to prove that after his

adoption, he was treated as the adopted son of the owner of the suit premises

but not only the plaintiff has failed to prove his said case, but also, in his

cross-examination recorded on March 10, 1993, he has admitted that he was

never treated as the adopted of S.N.Misra that is why his biological father's

name was recorded in his agreement for employment, the said admission of the

plaintiff gives the final and fatal blow to the case of the plaintiff of acquisition of

title over the suit property through his said adoption.

In view of the discussion made above, this Court is of the opinion that no

substantial question of law as formulated is involved in the present second

appeal warranting interference with the appellate decree. S.A.173 of 1997 is

dismissed without any order as to costs.

The department is directed to send down the Lower Court Court records

immediately to the Court below.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)