Jharkhand High Court
Zerom Oraon Adopted Son Of Mangra ... vs (A) Aruna Khakha on 25 July, 2025
2018:JHHC:30956
2018:JHHC:30956
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 06 of 1997 (R)
[Against the Judgment dated 05.10.1996 and Decree signed on
11.10.1996, passed by learned District Judge, Gumla in Title Appeal
No. 4 of 1993].
Zerom Oraon adopted son of Mangra Francis Oraon @
Hivatius Oraon, by caste Oraon, by Profession - Cultivator,
resident of Village - Dumardih, Tukutoli, Police Station -
Gumla, District - Gumla.
... Plaintiff/Respondent/Appellant
Versus
1(a) Aruna Khakha, widow of Late Rajesh Oraon.
1(b) Ankur Ekka, son of Late Rajesh Oraon.
1(c) Pranay Ekka, son of Late Rajesh Oraon.
1(d) Upaj Ekka, son of Late Rajesh Oraon.
All resident of Village - Dumardih Tukutoli, P.O. & P.S.
- Gumla, District - Gumla and presently residing in C/O Ajit
Ekka at Village - Tarri Dipatoli, P.O. - Phasia, P.S. & District
- Gumla.
... Defendants / Appellants / Respondents
.....
For the Appellant : Mr. Amar Kumar Sinha, Advocate.
Mr. Sandeep Verma, Advocate.
Mr. Sumit Kumar, Advocate.
For the Respondents : Mr. Mukesh Kr. Mehta, Advocate.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 03.07.2025 Pronounced on 25.07.2025
1. Heard Mr. Amar Kumar Sinha, learned counsel for the
appellant and Mr. Mukesh Kumar Mehta, learned
counsel for the respondents.
2. The instant second appeal has been preferred against
the judgment of reversal dated 05.10.1996 and decree
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signed on 11.10.1996 passed by learned District
Judge, Gumla in Title Appeal No. 4/1993, whereby
and whereunder, the appeal has been allowed and the
judgment dated 30.11.1992 and decree signed on
07.12.1992 passed by learned Munsif, Gumla in Title
Suit No. 25/1989 has been set aside.
3. The present second appeal has been admitted for
hearing vide order dated 04.12.1997 on the following
substantial questions of law:-
(I) Whether the judgment of the learned court of
appeal below is vitiated due to not meeting all the
points dealt with by the trial court?
(II) Whether in a case where the parties have led
evidence although not pleaded in the pleading the
same are required to be considered by the court
and the findings given by the court below
otherwise are bad in law?
4. The factual matrix giving rise to this second appeal is
that original plaintiff Mangra Francis Oraon filed the
Title Suit No. 25 of 1989 for declaration of registered
Adoption (Godnama) Deed dated 11.02.1974 executed
by Mangra Francis Oraon (original plaintiff) in favour
of Rajesh Oraon (original defendant) as null and void
and not binding on the plaintiff. It is alleged that in
the month of February, 1988, the plaintiff wanted to
take out deed from the Registry Office, then the Deed
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Writer told him that the adoption has been executed
in favour of defendant no. 1 namely, Rajesh Oraon.
The plaintiff applied for the copy of the adoption deed
and the said Godnama was cancelled by Cancellation
Deed No. IV 9 dated 14.03.1988. It is alleged that the
original plaintiff has executed the aforesaid registered
Godnama (Adoption) Deed in favour of his own
bhagina Zerom Oraon because he was issueless and
his bhagina was looking after him and assisting in
cultivation of field, but the defendant no. 1 in league
of his father Alfons Oraon, who works as a Deed
Writer changed the name of Zerom Oraon in place of
adopted son and inserted the name of defendant no. 1
by cutting the name over the original Adoption Deed.
The plaintiff after coming to know about the said
fraud wanted to get away his landed property to his
bhagina and originally adopted son Zerom Oraon and
sought permission from the competent authority vide
Permission Case No. 272/1988-89, but that was
rejected on 24.02.1989 on account of execution of
alleged forged and tampered adoption deed in favour
of defendant no. 1. Therefore, the alleged Adoption
Deed, which has been tampered by practicing fraud by
defendant no. 1, is liable to be declared null and void
document. The cause of action arose on 11.02.1974,
when the alleged forged document was executed, later
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on 14.03.1988 and 24.02.1989 when the cancellation
deed was executed by the plaintiff and rejection of
application for permission.
5. The contesting defendant no. 1 appeared and filed his
written statement taking plea that the suit is not
maintainable in present form, barred by law of
limitation, acquiescence and estoppel, barred by non-
joinder of necessary parties and misjoinder of causes
of action and provisions of Specific Relief Act.
6. Apart from aforesaid legal pleas, it is pleaded that the
plaintiff has rightly and voluntarily of his own free will
has executed the alleged registered Adoption Deed
dated 11.02.1974 in favour of defendant no. 1. The
defendant has no knowledge of Cancellation Deed of
Godnama unilaterally executed by the plaintiff on
14.03.1988. This defendant has never practiced any
fraud against the plaintiff in any manner, rather he
has been maintained by the original plaintiff as his
adopted son and residing with him. Zerom Oraon, the
alleged bhagina of the plaintiff, is completely stranger
to the Adoption Deed. Hence, the suit of the plaintiff is
liable to be dismissed.
7. On the basis of pleadings of the parties, the learned
trial court has settled following issues for
adjudication:-
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(I) Is the suit as framed maintainable?
(II) Has the plaintiff valid cause of action for the
suit?
(III) Is the suit bad for non joinder of necessary
parties?
(IV) Is the suit barred by law of limitation,
acquiescence and estoppel?
(V) Is Zerom Oraon adopted son of the plaintiff?
(VI) Is Godnama Patta executed by the plaintiff on
11.2.74 genuine or the same is null and void and
is not binding on the plaintiff?
(VII) Has the father of defendant no. 1 in league
with the deed writer got the registered Godnama
Patta No. 2 dated 11.02.1974 executed
fraudulently?
(VIII) Is the plaintiff entitled to relief as claimed?
8. On the basis of oral and documentary evidence
adduced by the parties, the learned trial court, while
deciding Issue No. (1) & (2), arrived at conclusion that
the plaintiff has proved that he adopted his own
bhagina Zerom Oraon as his son through the
registered deed, but defendant no. 1 in connivance
with his father Alfons Oraon, who works as a Deed
Writer and residing with him got his own name
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inserted in the original deed in place of Zerom Oraon.
He has also proved that defendant no. 1 never resided
and looking after the plaintiff, which fact also finds
corroboration from the evidence of D.W.-4 Teja Oraon
that defendant Rajesh Oraon never resided with
plaintiff rather he is residing with his natural father
Alfons. The defendant Rajesh Oraon in his evidence
has also admitted that his mother had no relationship
as sister with original plaintiff Mangra Francis Oraon.
His mother is also live, who resides at Village-Kurmi.
He also admits that in his maternal uncle's
village Mangra has no relationship. At the time of
filing his examination-in-chief on affidavit, the
defendant has mentioned the name of his father
Alfons Oraon and not the name of original plaintiff as
adoptive father. Therefore, he did not get rid of from
relationship of his original father. The plaintiff came to
know about the above fraud committed by the
defendant in the year 1988 and also filed cancellation
deed of the registered adoption deed and thereafter
filed the suit having valid cause of action and the suit
is maintainable.
9. The learned trial court has also decided Issue No. (4)
in favour of plaintiff and categorically recorded finding
that the registered adoption deed was admittedly
executed on 11.02.1974 and the suit has been filed in
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the year 1989. It is proved by the plaintiff that the
said deed of adoption has been fraudulently tampered
by the defendant inserting his name in place of
adopted child, Zerom Oraon and he came to know
about the said fraud in the month of February, 1988
and also filed Godnama Cancellation Deed, therefore,
the suit is not barred by limitation as it is filed within
period of limitation from the date of knowledge of the
fraud.
10. The learned trial court considering the evidence on
record also decided the main Issue No. (5) in favour of
plaintiff and against the defendant. Other ancillary
issues were also decided in favour of plaintiff.
11. Since the main issue goes in favour of the plaintiff, the
defendant preferred an appeal against the judgment
and decree of learned trial court vide Title Appeal No.
4/1993, wherein the first appellate court has
formulated following four points for adjudication of
the appeal:-
(I) Whether the suit is barred by Limitation.
(II) Whether the suit is bad for non joinder of
necessary parties?
(III) Whether the deed of adoption dated 11.2.1974
was executed by the original plaintiff in favour of
Rajesh Oraon the defendant no. 1 due to fraud
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being perpetrated on him by the defendant no. 1,
his father and the deed writer?
(IV) Whether the original plaintiff Mangra Francis
Oraon had adopted the defendant no. 1 or he had
adopted Zerom Oraon?
12. The learned first appellate court adjudicated the Point
No. (IV) at first and after discussing the oral evidence
adduced by the parties without meeting out the
reasons scribed by the learned trial court on the
relevant issue adopted his own ratiocination and
inferences, but could not arrived at definite
conclusion, rather it is stated at para-19 of the
judgment as under:-.
"19. On the basis of the discussions of
evidence and circumstances referred to above,
I hold that the basic requirement of adoption
viz giving and taking of the boy is missing
from the evidence and as such no declaration
can be given in this suit that Mangra Francis
Oraon had adopted Zerom Oraon. Moreover,
the evidence also shows that Zerom Oraon
had been kept by Mangra Francis Oraon like
a Dhanger in his house to look after his
cultivation and he might be treating him like a
son, but from that no inference can be drawn
that the original plaintiff Mangra Francis
Oraon had adopted Zerom Oraon. Henc no
such declaration can be given. Moreover, no
such declaration has been sought and on the
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basis of the authority referred to above this
relief cannot be granted. Hence, this point
decided against the plaintiff respondent."
13. The learned first appellate court, while deciding
cardinal point No. (III) of this case, has gone through
the evidences of oral witnesses, particularly one
attesting witness examined by plaintiff P.W.-2
Jowakin Oraon and another attesting witness of the
Adoption Deed namely, D.W.-6 Prabhu Dayal Sahu
and arrived at conclusion that on the basis of evidence
of D.W.-6, it cannot be inferred that the Deed Writer
Bhikhari Das in league with the defendant no. 1
committed fraud on the plaintiff and scribed the deed
in favour of Rajesh Oraon by inserting his name after
deleting the name of Zerom Oraon.
14. The learned appellate court, while deciding Point No.
(I) i.e. Whether the suit is barred by limitation, has
simply recorded finding that the adoption deed was
executed on 11.02.1974 and present suit was filed on
22.03.1989. Therefore, the suit is apparently been
filed more than 15 years after execution of the deed
and barred by limitation and the justification given by
the plaintiff regarding knowledge of the fraud
committed by the defendant, since while deciding
Point No. (III) it has been concluded that the allegation
of fraud has not been proved by the plaintiff,
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therefore, this suit of the original plaintiff is hopelessly
barred by limitation.
15. The appellate court, while deciding Point No. (II), has
held that the plaintiff has claimed that defendant no.
1 in league of deed writer had perpetrated fraud on
him by deleting the name of Zerom Oraon in the deed
of adoption and by inserting the name of Rajesh
Oraon, defendant no.1, therefore, the deed writer
Bhikhari Das and Alfons Oraon, father of defendant
no. 1 were also necessary party to the suit. Therefore,
the suit is also bad for non-joinder of necessary
parties.
16. Learned counsel for the appellant has submitted that
the original plaintiff Mangra Francis Oraon was
illiterate person and all over the documents, he has
put his thumb impression including plaint, affidavits
as well as the document of adoption impugned herein.
Admittedly, the plaintiff has executed registered
Adoption Deed on 11.02.1974, the content of deed
itself goes to show that Zerom Oraon (present
appellant) is bhagina of the original plaintiff, to whom
he adopted through the above impugned deed of
adoption. The clear-cut case of the plaintiff is that in
the month of February, 1988, for the first time the
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plaintiff came to know about the fraud committed by
the defendant no. 1 in connivance of his father and
deed writer etc. and they had tampered in the original
deed as regards the name of the adopted son and
replaced the name of Rajesh Oraon, son of Alfons
Oraon by cutting the name of Zerom Oraon, son of
Hirnus Oraon. The other parts of the contents of deed
do not show the execution of Godnama in the name of
Rajesh Oraon. Therefore, from the date of knowledge,
the suit was instituted within the limitation period of
three years as per Article 59 of the Limitation Act. The
learned trial court on the question of limitation (Issue
No. IV) held that the suit is not barred by law of
limitation and the specific opinion that this Court has
considered the broad circumstances of the case in the
interest of justice and not under point of technicality,
but the learned first appellate court has reversed the
aforesaid findings and held the suit to be barred by
limitation only on the basis that the plaintiff was
executant of the adoption deed, therefore, he must be
presumed know the contents of the same. Therefore,
the plea of fraud and the date of discovery of fraud
was disbelieved without recording any sound reasons
and without meeting out reasons assigned by the trial
court while deciding the issue of limitation in favour of
plaintiff.
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17. It is further submitted that the learned first appellate
court has miserably failed to take into notice the
contents of original registered deed of adoption dated
11.02.1974 (Exhibit-B) which was produced by
defendants bearing the cutting at the place of name of
adopted line which clearly shows that the name of
Zerom Oraon, son of Hirnus Oraon has been cut and
the name of Rajesh Oraon has been inserted over the
cutting. Apart from this, the first appellate court has
also ignored the evidence of oral testimony of
defendant no. 1 (examined as D.W. 5), who adduces in
his evidence, he is not bhagina of the plaintiff, rather
he is local villager, but calls the plaintiff as 'mama. He
never resided with the plaintiff, rather admits that
Zerom was residing in the house of the plaintiff and
looking after his cultivation and supporting the family.
The plaintiff himself has also specifically pleaded and
proved that he has adopted Zerom Oraon as his son,
who was all along living with him. Although, no
consequential relief regarding declaring the Zerom
Oraon as validly adopted son of the plaintiff, but that
cannot be basis for dismissal of the suit and the
plaintiff cannot be prevented to file a separate suit for
such remedy, where no prejudice is to be caused to
the defendant. Therefore, the impugned judgment and
decree passed by the learned first appellate court is fit
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to be set aside and the judgment and decree passed
by the learned trial court be restored.
18. On the other hand, learned counsel for the
respondents vehemently argued that the learned first
appellate court has passed well-reasoned order in
respect of issue of limitation and rightly held that the
plaintiff himself is executant of the adoption deed.
Hence, there will be presumption against him that he
knows its contents. Therefore, the limitation period of
three years commencing from very date of execution
i.e. 22.03.1989. The plea of fraud taken by the
plaintiff cannot be sustained.
19. It is further submitted that the learned trial court has
also taken note that the suit was bad for non-joinder
of necessary parties. Admittedly, the adopted son
Rajesh Oraon was minor at the time of execution of
the deed and there is allegation of fraud against his
father Alfons Oraon, who has not been made party in
the suit. The deed writer, who disclosed the plaintiff
about the fraud committed in respect of changing the
name of the adopted son has also not been joined as
party. The attesting witnesses of the adoption deed
dated 11.02.1974 i.e. P.W.-2 Jowakin Oraon and
D.W.-6 Prabhu Dayal Sahu have also not supported
the case of plaintiff on the point of fraud.
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20. It is further submitted that the original plaintiff has
never prayed for declaration that he has adopted
Zerom Oraon and not Rajesh Oraon, rather simply
sought for cancellation of registered adoption deed
dated 11.02.1974 without any ground justifiable
under law. Therefore, judgment of reversal of the
decree passed by the learned trial court in the first
appeal is based on sound reasons meeting out all the
points decided by the learned trial court while
considering the appeal. There is no error of law in the
impugned judgment and orders passed by the first
appellate court, calling for any interference on the
substantial question of law relied upon by the
appellant / plaintiff. Therefore, this appeal has no
merits and fit to be dismissed.
21. I have given anxious consideration to entire materials
available on record in the light of submissions raised
on behalf of both sides.
22. It is here to be mentioned that while deciding Point
No. (IV), the appellate court has recorded no findings
regarding the validity of the Adoption Deed challenged
in this case in favour of the defendant no. 1 and there
is no finding that the defendant no. 1 is validly
adopted child of the original plaintiff. The specific case
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of the original plaintiff is that the adoption has been
got executed by him in the name of Zerom Oraon, but
fraudulently it was tampered and name of defendant
no. 1 was inserted after execution of the deed.
23. As regards Point No. (III) is concerned, it is quite
obvious that the learned appellate court has not gone
through the contents of the original registered
adoption deed (Exhibit-B) as well as certified copy of
it, which obviously goes to show that the name of the
adopted child is erased and there is overwriting,
inserting the name of defendant no. 1, as the adopted
child, but the rest contents of the deed clearly shows
that Mangra Francis Oraon has taken adoption of his
own sister's son Zerom Oraon and the original deed of
adoption filed by defendant and marked Exhibit-B
itself shows the name of adopted child which was
inserted in the name of Rajesh Oraon, son of Alfons
Oraon cutting the name of Zerom Oraon, son of
Hirnus Oraon. There is no evidence at all led by the
defendant no. 1 that he is bhagina of the original
plaintiff, rather he is co-villager and resides just
adjacent to the house of plaintiff. It is also admitted
that defendant no. 1 is not bhagina of original plaintiff
and his mother is not real sister of the original
plaintiff Mangra Francis Oraon.
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24. The learned appellate court has also ignored Exhibit-A
i.e. power of attorney executed by defendant no. 1 in
the name of his natural father to look after this case
because he is under Government employment and
unable to effectively do pairvi of the case. The power of
attorney holder is none else but natural father of the
defendant no. 1 whom he still recognizes as father. No
explanation has been put forward by the defendant
no. 1 regarding cutting over the original adoption deed
on the vital part regarding name of the adopted child.
The suit was filed by the plaintiff for declaration of
adoption deed to be void on the ground that it was
obtained in the name of defendant no. 1 by playing
fraud and tampering the original deed.
25. The learned trial court has recorded very reasoned
judgment on the Issue No. (3) and the learned
appellate court has failed to consider the oral and
documentary evidence properly and based its findings
only on some hypothetical inference.
26. It is quite obvious that the findings recorded by the
appellate court about non joinder of necessary parties
like deed writer Bhikhari Das and natural father of
defendant no. 1, Alfons Oraon as party is also
misconceived. The natural father of defendant no. 1,
Alfons Oraon, who was appointed power of attorney
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holder by the defendant no. 1 to look after his case,
has not been examined as a witness. The nature of
suit, as framed, does not require any relief against the
aforesaid persons and bare pleading about their
mischievous act can't make them as necessary party,
in absence of them also suit can be decided.
Therefore, the finding of the appellate court itself
ambiguous and cannot be entertained.
27. As regards the Point No. (I) is concerned, it is quite
obvious that Godnama Deed has been executed on
11.02.1974 and the suit by plaintiff has been filed in
the year 1989. In this regard, it is very clear that the
knowledge of fraud committed by defendants has been
came to the knowledge of the plaintiff in the month of
February, 1988 and as per Article 59 of Limitation
Act, to cancel or set aside an instrument or decree, or
for rescission of a contract, the period of limitation is
3 years from when the facts entitling the plaintiff to
have the instrument or decree cancelled or set aside
or the contract rescinded first become known to him.
28. Hence, the suit filed by plaintiff was not barred by
limitation. Thus, commission of fraud first time came
to the knowledge of plaintiff in the month of February,
1988 and he had filed the suit within 3 years i.e. in
the year 1989.
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29. It appears that the learned trial court has decided
each issue on the basis of oral and documentary
evidence. The core issue is whether the registered
adoption deed Exhibit-B is creation of fraud
committed upon the original plaintiff and liable to be
declared null and void on that ground.
30. The best evidence would be the contents of deed itself.
Exhibit-B, the original adoption deed clearly shows
that it bears cutting and erasion of the original name
which appears to be Zerom, son of Hirnus Oraon and
name of defendant no. 1 is inserted. No explanation
for such cutting and insertion of defendant no. 1 has
been brought on record by the defendant no.1, who is
beneficiary of the deed and the original deed was also
produced by him, marked as Exhibit-B.
31. On the other hand, further contents of the impugned
adoption deed itself shows that the adoption has been
affected in the name of bhagina (sister's son) of the
original plaintiff. It is also not proved by defendant
no.1 through cogent evidence that he is son of
plaintiff's sister, who was taken into adoption, which
is valid one.
32. The original plaintiff in his oral evidence also
reiterated the aforesaid facts, which has not been
rebutted by the defendants. Therefore, the findings
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recorded by the appellate court without meeting out
the reasons given by the learned trial court regarding
the fraud played against the plaintiff is not justifiable
under law. It is trite that no one can take advantage of
his own wrong i.e. fraudulent act.
33. Learned appellate court has recorded erroneous
findings on all the four points formulated for
adjudication of the appeal.
34. In view of above discussion and reasons, the
impugned judgment passed by the learned first
appellate court appears to be devoid of merits and
based on hypothetical reasoning and beyond the
weight of evidence, which is hereby set aside and the
judgment and decree passed by the learned trial court
is restored and this appeal is allowed.
35. Pending I.A., if any, stands disposed of.
36. Let a copy of this judgment along with trial courts
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 25 t h July, 2025.
Sunil /A.F.R.
