Orissa High Court
Binay Ranjan Sahu & Another vs Kusumlata Dei & Others on 29 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.125 of 2020
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 21.12.2019 &
04.01.2020 respectively passed by the learned 2nd Additional District
Judge, Bhubaneswar, in R.F.A. No.61 of 2013 setting aside the
judgment & decree dated 29.06.2013 and 12.07.2013 respectively
passed by the learned 2nd Additional Civil Judge, Senior Division,
Bhubaneswar in T.S. No.109/385 of 2011/1994.
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Binay Ranjan Sahu & Another .... Appellants
-versus-
Kusumlata Dei & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.M. Sinha
Advocate
For Respondents - Mr.D.Tripathy
Advocate for R.1
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 21.02.2023 : Date of Judgment:29.03.2023
D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the
Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the
judgment and decree dated 21.12.2019 & 04.01.2020 respectively passed
by the learned 2nd Additional District Judge, Bhubaneswar, in R.F.A.
No.61 of 2013.
2. The Respondent No.1, as the Plaintiff had filed T.S. No.109/385
of 2011/1994 seeking declaration that the Appellant No.1 (Defendant
No.2) is not the adopted son of Jayaram Sahu and Kunja Sahu and that
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the deed of gift dated 28.12.1992 in favour of Appellant No.1
(Defendant No.2) as well as the registered sale deed dated 30.12.1992 in
favour of Appellant No.2 (Defendant No.1) are void and illegal. Prayer
was also made for passing of a preliminary decree entitling her with
1/3rd share and the Defendants 3 and 4 to 1/3rd share each. The Trial
Court dismissed the suit.
3. The Respondent No.1, as the Plaintiff, thus being non-suited by
the Trial Court, having carried the First Appeal under section 96 of the
code, has been successful in the said move. In the First Appeal, the
following order has been passed:-
"The appeal is allowed, the judgment and decree passed in T.S.
Case No.109/385 of 2011/1994 is hereby set aside. This Court
declares that the Defendant No.2 is not the adopted son of
Jayaram Sahu and Kunja Sahu and the gift deed no.1669 dated
28.12.1992 and registered sale deed dated 1417 dated 30.12.1992
are void and illegal. The suit is preliminarily decreed with 1/3 rd
share each to the plaintiff and defendant Nos.3 & 4. The parties
are directed to effect partition within a period of 3 months in
default of which any of the parties can approach the court below
for initiation of final decree proceeding".
4. Being aggrieved by the aforesaid decision of the First Appellate
Court, the Defendant Nos.1 and 2 as well as their sister, who came to be
arraigned as a party in the First Appeal, upon death of her mother, the
original Defendant No.3, have filed this Appeal.
5. For the sake of convenience, in order to avoid confusion and bring
in clarity, the parties hereinafter have been referred to, as they have been
arraigned in the Trial Court.
6. Plaintiff's Case:-
Plaintiff and the Defendant No.3 are the two daughters of
Jayaram, who died on 25.05.1993 leaving behind his widow (Defendant
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No.4) and two daughters, who are Plaintiff and Defendant No.3. The
Defendant No.1 is the husband of Defendant No.3 and Defendant No.2
is the son of Defendant No.3.
The suit properties in schedule-B & C are said to be the ancestral
property of Jayaram. After his death, the Plaintiff, Defendant Nos.3 and
4 succeeded to the same. It is stated that Defendant No.1 obtained a
fraudulent sale deed dated 30.10.1992 purported to have been executed
by Jayaram in his favour, which is in respect of the land described in
Schedule-B of the plaint. It is further stated that the property described
in Schedule-C of the plaint is said to have been gifted away on
28.12.1992 by Jayaram in favour of Defendant No.2, who was then a
minor being falsely representing through his adoptive mother
(Defendant No.4) is the outcome of fraud.
Jayaram, after giving his two daughters in marriage, had
absolutely no one and was managing himself decently. He had incurred
no loan and there was no necessity on his part to arrange money by sale
or otherwise. It is stated that due to extreme old age, when Jayaram was
not in a fit state of health and mind, taking the advantage of that, the
Defendant No.2, being the son-in-law, has obtained the registered sale in
his favour in respect of Schedule-B property without payment of
consideration. So, it is said that Defendant No.1 has not derived any
right, title and interest in respect of Schedule-B properties by said
fraudulent sale deed, which is said to be a sham transaction when
Jayaram too had never parted with the possession of the said land in
favour of Defendant No.1 and rather, he continued to remain in
possession till his death.
It is next stated that Defendant No.1, two months after obtaining
the said sale deed, created another fraudulent deed of gift purported to
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have been executed by Jayaram in favour of Binay, his minor son
(Defendant No.2) in respect of the entire balance property including the
house and homestead and leaving absolutely no provision for himself
and his wife (Defendant No.4) even for their future shelter and sentence.
It is said that the recitals in the so-called deed of gift is that Defendant
No.2 was adopted by Jayaram since his childhood is totally false when
no such adoption of Defendant No.2 had ever taken place. It is also
stated that Defendant No.2, being the only son of Defendant Nos.1 & 3,
he could not have been given on adoption and taken as such. Thus, it is
said that the registered sale deed as well as the gift deed are the outcome
of fraudulent activities carried out by Defendant No.1 in connivance
with Defendant No.3 in order to deprive the Plaintiff, who is the elder
daughter of Jayaram. The Plaintiff, being the elder daughter of Jayaram,
is entitled to 1/3rd share over Schedule-B & C properties. The Defendant
Nos.1 to 3, having denied to part with the property as per her entitlement
in favour of the Plaintiff, she filed the suit for declaration that the
registered sale deed dated 30.10.1992 and the registered gift deed dated
28.12.1992 are invalid and inoperative and conveyed no title. It was also
prayed that it be declared that the Defendant No.2 is not the adopted son
of Jayaram. With the above, the Plaintiff prayed for partition entitling
her with 1/3rd share over Schedule-B & C properties.
7. The Defendants 1 & 3, in their joint written statement, while
traversing the plaint averments, have stated that Jayaram died on
25.05.1993. It is also said that the Defendant No.2 was taken on
adoption by Jayaram from Defendants 1 and 3 and the adoption was a
valid one. It is stated that Defendant No.2, being the adopted son of
Jayaram, whatever properties were left by Jayaram, were succeeded by
the Plaintiff and Defendants 1, 3 and 4. It is further stated that major
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portion of the suit land were the self-acquired properties of Jayaram and
he was at liberty to deal with the same as per his own will and desire.
The registered sale deed dated 30.10.1992 standing in favour of
Defendant No.1 is said to be valid and genuine. It is further stated that
Jayaram had only 21 gunthas of properties which included the
homestead, bari, tank and cultivable land. He, during his younger days,
had acquired Ac.1.25 decimals of land from his own income. In order to
perform the marriage ceremony of his two daughters as well as to attend
the other functions of the relations, Jayaram, due to paucity of fund, he
had borrowed money from different persons and the loan gradually
mounted up when thereafter due to illness of Jayaram, he also further
incurred loans. The house of Jayaram, without being properly repaired
also gradually got damaged. So, he wanted to alienate the property and
then the Defendant No.1 being the son-in-law of Jayaram, purchased the
same from him by paying consideration of Rs.20,000/- to Jayaram and
he took delivery possession of the said land. The Plaintiff, being the
daughter of Jayaram, had never come to help and assist Jayaram and
now with an ulterior motive, has advanced a false claim over suit
property.
It is again stated that Jayaram and Defendant No.4 have no issue
of their own. So, they had adopted the Defendant No.2 since his
childhood when the Plaintiff refused to give her son in adoption. It is
stated that since the time of adoption, Defendant No.2 resided under the
care and custody of Jayaram and his wife (Defendant No.4). Jayaram
had executed deed of gift in respect of his landed properties in favour of
Defendant No.2 which is valid.
8. The Defendant No.5, in his written statement, while traversing the
plaint averments, has specifically pleaded that Jayaram had never
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adopted the Defendant No.2. He further stated that two daughters of
Jayaram, i.e., Plaintiff and Defendant No.3 with the widow (Defendant
No.4) of Jayaram have succeeded to the properties of Jayaram. It is his
case that Jayaram and he were in joint possession of the entire property
and after the death of Jayaram, he is staying with Defendant No.4. The
suit property, having not been partitioned in metes and bounds, he
claimed half share over the said property by way of a counter claim.
9. The Defendants 1 to 4, in their written statement to the counter
claim of the Defendant No.5, have stated that the Plaintiff, Defendant
Nos.1, 3, 4 & 5, have got no share in the property measuring Ac.0.20
decimals covered under Khata No.229 as the same has been gifted away
to Defendant No.2 to the extent of Ac.0.10 decimals which the
Defendant No.2 has got mutated in the year 1995 and is paying the rent
to the State.
10. The Trial Court, on the above rival pleadings, has framed seven
issues. Answering the crucial issues, i.e., issue nos.3, 4, 5 & 6 together,
which mainly concern with adoption of Defendant No.2 by Jayaram,
validity of the registered sale deed and gift deed dated 30.10.1992 and
28.10.1992 respectively as well as the share to which the parties are
entitled to, upon examination of the evidence and their analysis, has held
that the Defendant No.2 is the adopted son of Jayaram. On further
discussion of the evidence, the gift deed and the sale deed have been
held to be valid. With these findings, the Trial Court dismissed the suit
as well as the counter claim.
11. The Plaintiff, thus being non-suited, filed the First Appeal. The
First Appellate Court, upon detail discussion of the evidence and their
examination at its level, has held that the Defendant No.2 had never
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been adopted by Jayaram and Defendant No.4. Then, coming to the
validity of the gift as well as the sale deed, the answers have been
rendered that those are the outcome of fraud and undue influence and it
is the Defendant No.1, who has played the mischief by obtaining these
two deeds from Jayaram making him totally landless and homeless and
in order to deprive other legal heirs and successors of Jayaram.
12. Learned counsel for the Appellants submitted that the findings of
the First Appellate Court in holding that the Defendant No.2 is not the
adopted the son of Jayaram and Defendant No.4 is wholly contrary to
the weight of the evidence on record. According to him, on the face of
the overwhelming evidence in support of the factum of adoption both
oral and documentary, the First Appellate Court ought to have held that
Defendant No.2 is the adopted son of Jayaram and Defendant No.4. He
also submitted that the First Appellate Court has not properly
appreciated the documentary evidence let in by the Defendants. The
deed of adoption, according to him, has been unjustifiably kept out of
consideration.
He submitted that in the absence of any evidence that Defendant
No.1 practiced fraud upon Jayaram in obtaining the gift deed in favour
of Defendant No.2 and the sale deed in his favour, the finding of the
First Appellate Court against said registered documents cannot be
sustained. He, therefore, urged for admission of this Appeal to answer
the above as the substantial questions of law.
13. Learned counsel for the Respondent No.1, assisting the Court in
the matter of admission, submitted all in favour of the findings returned
by the First Appellate Court. According to him, upon a detail discussion
of the evidence on record and their analysis from all possible angles, the
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First Appellate Court, keeping in view the settled position of law, has
rightly recorded the finding contrary to those returned by the Trial
Court. It was his further submission that the First Appellate Court is
right in ultimately holding that behind all these activities of obtaining
the sale deed, deed of gift and the so-called deed of adoption, the
Defendant No.1 is the master mind and the purpose behind is to grab
Jayaram's property in entirety, wholly to the exclusion of other legal
heirs and successors.
14. Keeping in view the submissions made, I have carefully read the
judgments passed by the Courts below.
15. The Plaintiff and Defendant No.3 are the two daughters of
Jayaram and Kunja (Defendant No.4). The Defendant No.4, the widow
of Jayaram, has died during pendency of the First Appeal. The
Defendant No.2 is the natural son of Defendant No.1 and Defendant
No.3. Jayaram, the maternal grandfather of Defendant No.2 and it is said
that Jayaram and Defendant No.4 had adopted Defendant No.2, which is
disputed by the Plaintiff and Defendant No.5.
16. Before proceeding further at this place, it would be worth noting
the observation made by this Court in case of Raghunath Behera -V-
Balaram Behera & Another; 1995 (II) OLR 135, at paragraphs 5 6, which
are as follows:-
"5. As Manu stated, he whom his father and mother give to
another as his son, provided that the donee have no issue, if
the boy be of the same class, and affectionately disposed is
considered as a son given, the gift being confirmed by
pouring water. Adoption is the admission of a stranger by
birth to the privileges of a child by a recognised form of
affiliation. The Hindu Adoptions and Maintenance Act, 1956
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(in short, the 'Act') amends and codifies the law relating to
adoptions and maintenance and gives overriding application
to the provisions on the two subjects contained in it. In the
law of adoption it brings about some fundamental and
important changes and the result is that immediately on the
coming into operation of the Act the law on the subjects of
adoptions and maintenance hitherto applicable to Hindus
whether by virtue of any text, rule or interpretation of Hindu
Law or any custom or usage having force of law ceases to
have effect with respect to all matters dealt with in it. The
requirements of a valid adoption under the Act are: -
(i) the person adopting must have the right to take
and be lawfully capable of taking a son or daughter
in adoption (Sections 7 and 8);
(ii) the person giving in adoption must be lawfully
capable of doing so (Section 9);
(iii) the person adopted must be lawfully capable of
being taken in adoption (Section 10); and
(iv) the conditions relating to adoption including
actual giving and taking of the child with the
intention of transferring the child from the family of
its birth must be complied with (Section 11).
6. Adoption is the legalized recognition of a person as
one's son. According to Hindu notions, a son is necessary to a
person not only to continue the lineage but also to offer
oblation to the means or the ancestors to the fourth degree.
The soul of a person dying issueless will not be saved. So this
institution has been founded on the Hindu law. The person
adopted has all the privileges of a natural born son except that
there is a reduction in the share of property, different
according to the various schools of Hindu Law, if a natural
son is born subsequent to the adoption. Certain caremonies
are necessary for adoption. There are five kinds of adopted
sons of which Dattaka and Kritrima are the two forms
ordinarily found in India. The object of adoption in the
context of personal law has always been spiritual as well as
temporal. Not only adoption results in de jure transference of
person from one family to another, but confers on adopted
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son rights like natural or legitimate son, in adoptive family.
The origin of the custom of adoption is lost in antiquity. The
ancient Hindu Jaw recognised twelve kinds of sons; of
whom, as stated above, five were adopted. The old law of
adoptions among Hindus was developed by the ancient
commentaries like Dattaka Mimamsa and Dattaka Chandrika.
It is peculiar only to Hindus and not recognised by other
religions like Muslims or Christians. The object of old Hindu
law of adoption was based more on secular reasons and
religious motives as pointed out by the Privy Council in Bal
Gangadhar. Tilak v. Srinivas Pandit, AIR 1915 PC 7 and
Amareadra Mausing v. Sana-tan Singh, AIR 1933 PC 155, In
V. T. S. Chandrasekhara v. Kulandaivela, "AIR 1963 SC 185
apex Court observed that it may be safely held that the
validity of adoption has to be judged by spiritual rather than
temporal considerations and the devolution of property is
only of secondary importance. In Hem Singh v. Harnam
Singh, AIR 1954 SC 581 it was observed that under the
Hindu Law adoption is primarily a religious act intended to
confer spiritual benefit on the adopter and some of the rules
have therefore been held to be mandatory and compliance
with them regarded as a condition_of the validity of the
adoption. The theory of adoption is that it makes the adopted
boy to all intents and purposes the son of his adoptive father
as completely as if he had begotten him in lawful wedlock.
17. In case of an adoption, which stands questioned, the position of law
is quite well settled that since an adoption diverts the normal & natural
course of succession; the Court has to be extremely alert & vigilant to
guard against being ensnared by schemers who indulge in unscrupulous
practice out of their lust for property. If there are only suspicious
circumstances, just as the propounder of the Will is obliged to dispel the
cloud of. suspicion, the burden is on one who claims to have been
adopted to dispel the same beyond reasonable doubt. (Rahasa Pandiari
(Dead) by LRs & others vrs. Gokulananda Panda & ors, (1987) 2 S.C.C.
338.
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17.1. The Apex Court in case of Kishori Lal vrs. Mt. Chaltibai AIR 1959
S.C. 504, has also held that an an adoption results in changing the course
of succession depriving wives & daughters of their rights & transferring
properties to comparative stranger or more remote relations, it is
necessary that evidence to support it should be such that, it is free from
all suspicion of fraud & so consistent & probable as to leave no occasion
for doubting its truth. This Court in the cases of Prafulla Kumar Biswal
vrs. Sashi Beura & ors, 1989 OLR (I) 425, Sulei Bewa & ors. vrs.
Gurubari Rana, AIR 1971 Orissa 299 & Arjun Banchhar vrs. Bacchi
Banchhar AIR 1999 Orissa 32 has also authoritatively held that as an
adoption displaces natural succession, the burden to establish the
adoption is squarely on the person who propounds & that burden is
heavy."
17.2. Furthermore, in R. Lakshman Singh Kothari vrs. Smt. Rupa
Kanwar, AIR 1961 S.C. 1378 it has been held by the Hon'ble Apex Court
that under the Hindu Law whether among the regenerate caste or among
sudras, there cannot be a valid adoption unless the adoptive boy is
transferred from one family to another & that can be done only by the
ceremony of giving & taking. The object of the corporeal giving &
receiving in adoption is to secure publicity. To achieve this object, it is
essential to have a formal ceremony. No particular from is prescribed for
the ceremony but the law requires that the natural parents shall hand over
the adoptive boy & the adoptive parents shall receive him. The nature of
the ceremony may vary depending upon the circumstances of each case.
But a ceremony there shall be, & giving & taking shall be part of its. The
exigencies of the situation arising out of diverse circumstances
necessitated the introduction of the doctrine delegation & therefore, the
parents after exercising their volition to give & take the boy in adoption,
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may both or either of them delegate the physical act of handing over the
boy & receiving him as the case may be to a third party.
17.3 In the case of L. Debhi Prasad (dead) by L.Rs. vrs. Smt. Tribeni
Devi & ors. AIR 1970 SC 1286, it has also been held that giving &
receiving are absolutely necessary to the validity of an adoption & they
are the operative part of the ceremony being that part of it which transfers
the boy from one family to anywhere.
Thus, the ceremony of giving & taking is very essential to be
proved by clear, cogent & acceptable evidence dispelling all such
suspicions whatsoever in that connection for deciding the validity of an
adoption as in the present case, where adoption is not projected as an
ancient one & instead evidence has been led, inasmuch as, by examining
the persons in whose presence the ceremony took place being then
available to testify.
17.4 It has been held in the case of Bauri Devi -V- Dasarathi Sahu; 1974
(1) CWR 403 that creation of documents is no substitute for the fact of
giving and taking which must be proved independently de hors any
document. Omission of the day or date of adoption is very vital and the
deed of acknowledgment of adoption loses all its significances.
18. Under the amended provisions of Section 100 of the Code a
second appeal lies only on a substantial question of law and a substantial
question of law has to be formulated. Questions of law and fact are some-
times difficult to disentangle. The expression "fact" means and includes
(a) anything, state of things, or relation of things capable of being
perceived by the senses, and (b) any mental condition of which any
person is conscious. A question whether any such fact exists or does not
exist is a question of fact and a finding therein is a finding of fact. An
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inference of fact must be distinguished from an inference of Law. Where
from evidentiary facts and documents an inference is drawn as to the
existence or non-existence of another fact, then the inference is one of
fact; and the question as to the inference a question of fact. But when the
question is whether certain facts give rise to a legal right or liability, the
inference is one of law, and the question of such inference, a question of
law. The relevancy of evidence is a question of law. Where there is
evidence from which a conclusion of fact can be drawn, the weight of the
evidence or the sufficiency of proof is a question of fact and the finding
of the lower court is not to be interfered with in second appeal. Sections
100 and 101 of the Code taken together distinctly prohibit second appeals
on questions of fact unless in the process of arriving at a finding of fact
the Court has committed an error of law or a substantial error of
procedure. It may be that the evidence is unsatisfactory or insufficient, or
that it has not been properly appreciated it may be that the High Court is
inclined to take a different view or that the decision is open to doubt it
may even be that the finding may seem to be grossly and inexcusably
erroneous, still if there is some legal evidence for the finding, and there is
no such error or defect as enumerated in Section 100 of the Code, the
High Court cannot interfere. A finding of fact can be set aside in second
appeal, (a) where it is not based on any evidence or on legal evidence or
on a judicial consideration of the evidence adduced,.(b) where the
evidence is disbelieved "for no reason, (c) where it is based on a
misconception of the real point in controversy in the case, (d) where the
conclusion of fact is not warranted by the facts on which it is based or is
inconsistent with other findings in the case or is opposed to the case set
up by the party in whose favour it is drawn, or is contrary to pleadings
and evidence in the case, (e) where it is contrary to the facts found or is
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inconsistent with the statement of reasons therefor in the judgment or is
based on quaint reasoning, or is vague, or indefinite or ambiguous, (f)
where it is arbitrary or vitiated by prejudice, or is based on a distorted
view of the evidence, or is based on surmises or extraneous
considerations or where no reasons have been given for the finding, (g)
where material facts or evidence have been ignored in arriving at the
conclusion of fact and (h) where finding is perverse in the sense that no
normal person could have arrived at that finding. It is true, as observed by
the apex, Court in Dilbagrai Punjabi v. Shavad Chandra, AIR 4988 SC
1858 High Court while hearing appeal under Section 100 of the Code has
no jurisdiction to reappraise the evidence and reverse the conclusion,
arrived at by the lower court. The lower appellate court is under a duty to
examine the entire relevant evidence having direct bearing on the
disputed issue and if the error which arises is of a magnitude that it gives
birth to a substantial question of law, the High Court will be fully
justified in setting aside the finding.
19. Adverting to the given case, one circumstance against the
adoption is that Defendant No.2, being the only son of Defendant Nos.1
& 3, he could not have been given on adoption when the relationship
between Defendant No.2 and Jayaram was of Virudha Sambandha. The
Plaintiff, being the natural daughter of Jayaram having challenged the
factum of adoption, the burden of proof of said fact was heavily resting
on the shoulders of the Defendants 1 and 3 to establish the same by
providing higher degree of proof through clear, cogent and acceptable
evidence. The burden of proof in such event is heavy on them as by the
same, serious deprivation is caused to the other legal heir and
successors. For the purpose, all such suspicious circumstances standing
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against that claim of adoption are required to be satisfactorily explained
and thus removed.
20. The written statement being gone through, it is seen that the
Defendants have not pleaded the detail requirements in order to set up
and succeed in their claim of adoption of Defendant No.2 by Jayaram.
The date, place and time of adoption, having not been given; nothing is
also stated with regard to the giving and taking ceremony in the said
adoption, which is mandatory as also there is no further pleading as to
the performance of any other act/s at the time of adoption. The deed
(Ext.C), which is said to be the deed of adoption has in fact come into
being long after the adoption and there also, most importantly, the date
of adoption does not find mention, which casts serious doubt to strongly
infer that the parties had even no such certainty as to adoption and the
deed has come into being for providing some support to the said plea,
which is an afterthought with obvious motive. It is not stated that
Defendant No.4, being the wife of Jayaram had her consent to such
adoption. The date of adoption has been disclosed for the first time
when the Defendant No.1 has filed his affidavit as his evidence in chief
and it is then stated that there was performance of giving and taking
ceremony, but then again he is not stating the exact age of his son when
he was so adopted. This evidence being not backed by pleadings which
ought to have contained all said important facts are thus liable to be
eschewed from the arena of consideration. Therefore, the First Appellate
Court is right in not considering such evidence when the foundations on
those scores are not there in the pleadings.
21. The Defendant No.1 examined as D.W.1 in the affidavit as his
evidence-in-chief has stated that since infant age of Defendant No.2, he
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was kept by Jayaram and Kunja (Defendant No.4) with an intent to
adopt him as their son and the actual giving and taking ceremony took
place on 24.05.1991 in presence of the relatives and co-villagers.
Nothing is stated as to why despite having the intent, Jayaram and Kunja
(Defendant No.4) they preferred to defer the performance of the
adoption ceremony. This witness has also stated that his son was aged
about three years when he was kept by Jayaram. But then he has not
been able to disclose during cross-examination, the date, month and year
of adoption either as per Odia Calender and English. He when states that
he and his wife handed over the child to Jayaram and Kunja, who had
accepted the child (Defendant No.2) is stating that there was no giving
and taking ceremony. It is his further evidence that his son (Defendant
No.2) was allowed to reside with Jayaram when he was aged about three
years.
The deposition of D.W.1, being read from top to bottom, gives an
impression in mind that he has no any idea about the giving and taking
ceremony; much less to say that he was ever a party to it at any given
time. It is the evidence of Kunja (D.W.2) that she decided to adopt a
son, seven to eight years before her deposing in Court which comes
around the 2000-2001. She is not able to say the year of birth of the first
child of Defendant No.3. She too is not saying as to the date, month and
year when she asked Defendant No.3 for adoption. According to her, the
Defendant No.2, when adopted, was six years old, which is in great
variance with the evidence of D.W.1. The natural father's name of
Defendant No.2 appears in the public records. Interestingly enough, it
has been stated by Defendant No.1 that Defendant No.2, who is said to
be the adopted son of Jayaram, is still living as his son and the villagers
also know that Defendant No.2 is his son. Thus, as per his own evidence
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on oath, it stands clear that the Defendant No.2 has no recognition as the
adopted son of Jayaram but is known and recognized by all to be his
own son.
The D.W.2, who is Defendant No.4 and widow of Jayaram, who
is said to be the adoptive mother, during her examination, has further
stated to have taken a decision to adopt the son only 7 to 8 years before
her examination in Court. It is her evidence that at the time giving and
taking ceremony, those who were present on the road, had seen that
Defendant No.2 was with them and one month thereafter, puja ceremony
was performed in their house which rather exposes that although being
tutored or coerced, she having come to the witness box to avoid the
drawal of adverse inference, has not been able to so succeed in
suppressing the truth and thereby successfully painting the falsehood as
truth. This Defendant No.4, having tendered the evidence, as above, the
same does not help the Defendant Nos.1, 2 & 3 in establishing the
factum of adoption and rather creates serious doubt in mind on that
factum of adoption. The Defendant No.2, being examined as D.W.3, has
clearly admitted that in all on academic records, his natural father's
name, i.e., the name of the Defendant No.1 finds mention. He has also
not been able to say the death anniversary of Jayaram, which as the son
of Jayaram is ordinarily expected to remember. He has completely
destroyed the case of adoption, as projected when he has said that he
along, have been staying with his natural parents under one roof. The
evidence of the priest, who is said to have performed the giving and
taking ceremony, having been discussed by the First Appellate Court, is
found to have been rightly disbelieved for the good reasons as assigned.
22. With such oral evidence on record, the deed of adoption (Ext.C),
being gone through, it is found that it has come into being on
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28.12.1992. First of all, it is not stated that when adoption had already
taken on 24.05.1991 as stated by D.W.1 why again arose the need to
have a document after one and half year. This gives rise to further
suspicion in mind that lest it would be difficult to establish the projected
adoption in future, the document be also kept ready and for that, it was
brought into being. The recitals in Ext.C do not disclose the date of
performance of giving and taking ceremony. So, the factum of
performance of giving and taking ceremony in the so-called adoption is
found to have not been proved at all with that degree of proof as is
required under law. This deed (Ext.C) thus cannot come to the aid of the
Defendant No.2 and it has been rightly so held by the First Appellate
Court.
The First Appellate Court has noted the overwhelming evidence
on record to show that the adopted child (Defendant No.2) has been
residing that the Defendant No.1 and Defendant No.3. It has also taken
note of the fact that in almost all the public records, the Defendant No.2
has been described to be the son of his natural father which also finds
reflected in the voter list of the year 2005. To add to this, there stands
the version of Defendant No.1 on oath that his neighbors know the
Defendant No.2 as his son.
An interesting feature at this stage comes to strike the mind that
the Defendant No.4, who is the so-called adoptive mother of Defendant
No.2, in her evidence, has stated to have no knowledge about the
averments made in the written statement as well as the contents of the
affidavit which has been tendered as her evidence in chief. She too is not
stating about any special reason as to why this daughter's son
(Defendant No.3's son) was chosen for being adopted and that is also
not stated by any of the witnesses and what was that special affinity of
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Jayaram and Kuna towards them, that they did not divert their attention
to others. Moreover, nothing is stated as to what persuaded the natural
parents of Defendant No.2 to give their eldest child (son) in adoption
and what was the special reason for the same; that too why Jayaram and
Kunja decided to take that eldest son of Defendant Nos.1 and 3 on
adoption leaving the other when the Defendant Nos.1 & 3 are also
stating that then by consenting for giving in adoption of Defendant
No.2, they did not do any grave injustice to the surviving son. The
Defendant No.4 has also nowhere stated that she had her consent for
such adoption and it was voluntary. Therefore, this Court is of the view
of the First Appellant Court is absolutely right in rectifying the grave
mistakes committed by the Trial court in appreciating the evidence on
record as regards the proof of the factum of adoption without being alive
to the settled position of law holding in mind in finally negating the
case/claim of adoption of Defendant No.2 by Jayaram and Kunja.
23. Coming to the deed of gift and sale deed, it is seen that the deed
of gift as projected to be the document of title in respect of the land
covered under it in favour of Defendant No.2 is a registered one and its
certified copy has been marked as Ext.5 from the side of the Plaintiff
whereas the Defendants have proved the original as Ext.AA/18. Giving
a careful reading to the recitals, it reveals that the donee has been
described therein as the adopted son. The recitals being read in entirety
clearly lead to say that the assumed fact of adoption is the reason and
motive of gift and a condition of it. The recitals do not indicate that it
was with an intention to benefit the so called donee as persona designata
and the narration of his relationship as adopted son is merely a
description so as to say that the gift would prevail over even if the
adoption, has not been proved. This being the conclusion, when the
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adoption has failed, the move to sustain the gift under Ext.AA/18 is
bound of fail and the First Appellate Court's finding on that score is
well in order.
24. Now, arise the matter as to the validity of the sale deed. It is seen
that the First Appellate Court, on thread bare discussion of the evidence
on record, has rightly arrived at a conclusion that the said sale deed has
been fraudulently obtained from Jayaram and that gets reinforced when
one views as to how the Defendant Nos.1 to 3 have acted all through in
projecting the claim of adoption of Defendant No.2 and then again
claiming further under a deed of gift which they have failed to sustain.
First having projected the Defendant No2 as the adopted son of Jayaram
and Kunja with a view to make an entry as one of the person to inherit
the property, the next step has been to obtain a gift so that it would be an
additional bonanza and then rest property is brought under the coverage
of the sale deed and this time in favour of the son-in-law, i.e., the
Defendant No.1. The adoption has been negated, the gift has failed to
sustain and now the last one is the sale deed. All these being
cumulatively viewed, grave doubt arises in mind that what was/were the
so special reason or cause for Jayaram and Kunja to be so annoyed with
and disgusted towards others including the other daughter, the Plaintiff
that they would not leave an inch of their property to go to the hands of
other legal heir/s except the Defendant Nos.1 to 3 which is not normally
expected to be adopted by the parents, as here nothing surfaces that
there was any such animosity with others.
For the aforesaid discussion and reasons; this Court finds no such
infirmity at all much less to say any perversity with the findings of the
First Appellate Court, which are based on sound appreciation of
evidence in the backdrop of the settled position of law holding the field.
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25. For all those aforesaid, the submission of the learned counsel for
the Appellants that the Appeal merits admission to answer the
substantial questions of law, as pointed out, fails.
26. In the result, the Appeal stands dismissed. No order as to costs.
(D. Dash),
Judge.
Basu
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