Orissa High Court
Prasanna Kumar Dash vs Upendra Dash on 26 September, 2025
IN THE HIGH COURT OF ORISSA AT
CUTTACK
S.A. No.165 of 1997
(In the matter of an appeal under Section 100 of the
Code of Civil Procedure, 1908)
Prasanna Kumar Dash .... Appellant
-versus-
Upendra Dash .... Respondent
Appeared in this case:-
For Appellant : Mr. S.R. Pattanaik, Advocate
For Respondent : Mr. A.C. Swain, Advocate
assisted by Ms. S.A. Swain,
Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing:11.09.2025/date of judgment:26.09.2025
A.C. Behera, J. This 2nd appeal has been preferred against the
reversing judgment.
2. The appellant in this 2nd appeal was the defendant
before the trial court in the suit vide T.S. No.13 of 1994
and respondent before the 1st appellate court in the 1st
appeal vide T.A. No.01 of 1996.
3. The respondent in this 2nd appeal was the Plaintiff
No.1 before the trial court in the suit vide T.S. No.13 of
1994 and appellant before the 1st appellate court in the
1st appeal vide T.A. No.01 of 1996.
The suit vide T.S. No.13 of 1994 was filed by the
respondent in this 2nd appeal, i.e., Upendra Dash along
with one Mukta Dibya being the plaintiffs against the
defendant(appellant in this 2nd appeal) for declaration
and permanent injunction in alternative recovery of
possession.
As per the averments made in the plaint of the
plaintiff, the suit properties originally belonged to one
Bharat Dash. Bharat Dash was the husband of the
Plaintiff No.2(Mukta Dibya).
The Plaintiff No.1((Upendra Dash) is the natural
born son of one Baidhar Panigrahi. Bharat Dash and
Mukta Dibya(Plaintiff No.2) had no child. While the
Plaintiff No.1(Upendra Dash) was aged about two years,
on the day of Akshaya Trutiya in the year 1964, Bharat
Dash and his wife Mukta Dibya(Plaintiff No.2) adopted
Plaintiff No.1(Upendra Dash) as their son through
observance of giving and taking ceremony in the house
of Bharat Dash in presence of their well-wishers and
relatives. In that giving and taking ceremony, the
natural parents of Upendra Dash(Plaintiff No.1), i.e.,
Baidhar Panigrahi and his wife handed over Upendra
Dash to Bharat Dash and Mukta Dibya for adoption
and Bharat Dash and Mukta Dibya received Upendra
Dash from Baidhar Panigrahi and his wife in presence
of their well-wishers and relatives. As such, since the
day of Akshaya Trutiya of the year 1964, Plaintiff
No.1((Upendra Dash) became the adopted son of Bharat
Dash and Mukta Dibya(Plaintiff No.2) curtailing his of
all sorts of ties with his natural parents family.
Bharat Dash died in the year 1965 leaving behind
his wife Mukta Dibya(Plaintiff No.2) and Upendra
Dash(Plaintiff No.1) as his successors. After the death of
Bharat Dash, Mukta Dibya (Plaintiff No.2) took the care
of Upendra Dash(Plainiff No.1) and admitted
him(Upendra Dash) in Basudepur U.P. School in the
year 1967 as his mother indicating his surname as
Dash. Subsequent thereto, Mukta Dibya (Plaintiff No.2)
performed the thread ceremony of Upendra
Dash(Plaintiff No.1). Accordingly, the documents
including voter list, school admission register and other
documents were prepared indicating Plaintiff
No.1(Upendra Dash) as the son of Bharat Dash and
Mukta Dibya (Plaintiff No.2). Plaintiff No.1((Upendra
Dash) after completing his study, i.e., B.Sc., B.Ed.,
he(Upendra Dash, Plaintiff No.1) served in a High
School as a teacher, which was situated at a distant
place from his house. For which, taking the advantage
of the absence of Plaintiff No.1 from his house and
finding the Plaintiff No.2(Mukta Dibya) alone in her
house, the defendant (Prasanna Kumar Dash) being the
distant relative of Plaintiff No.2(Mukta Dibya) managed
to execute two sale deeds on dated 23.06.1990 and
21.07.1993(Exts.2 and 3) respectively in respect of the
suit properties in his favour from the Plaintiff
No.2(Mukta Diya) without making her(Mukta Dibya)
aware about the execution and registration of the said
sale deeds, but, giving her impression about the
execution of the deed of power of attorney in his favour
in order to look-after her properties. The Plaintiff
No.2(Mukta Dibya) had no occasion/reason for selling
the suit properties to the defendant(Prasanna Kumar
Dash) through the above two sale deeds. The
defendant(Prasanna Kumar Dash) had managed to
execute the above two sale deeds dated 23.06.1990 and
21.07.1993 respectively vide Exts.2 and 3(Exts.A and B)
from the Plaintiff No.2(Mukta Dibya) fraudulently by
practising fraud and misrepresenting her(Plaintiff No.2-
Mukta Dibya) without payment of any consideration
amount and without taking delivery of possession of the
properties covered under the said deeds, i.e., the suit
properties.
When, the Plaintiff No.1((Upendra Dash) and
Plaintiff No.2(Mukta Dibya) are the successors of Late
Bharat Dash, then, the Plaintiff No.2(Mukta Dibya)
alone was not competent under law to execute the so-
called sale deeds dated 23.06.1990(Ext.2) and
21.07.1993 (Ext.3) respectively in respect of the suit
properties in favour of defendant(Prasanna Kumar
Dash). When, the Plaintiff No.1 came to know that, the
defendant has managed to execute the aforesaid two
sale deeds dated 23.06.1990 and 21.07.1993 vide
Exts.2 and 3 from Mukta Dibya (Plaintiff No.2) by
practising fraud and misrepresenting her, then, the
Plaintiff No.2 cancelled the above two sale deeds dated
23.06.1990 and 21.07.1993 respectively by executing
and registering a cancellation deed dated 29.12.1993
vide Ext.6 and thereafter, Upendra Dash and Mukta
Dibya both filed the suit vide T.S. No.13 of 1994 being
Plaintiff Nos.1 and 2 respectively against the defendant
(Prasanna Kumar Dash) praying for a declaration that,
the so-called sale deeds dated 23.06.1990(Ext.2) and
21.07.1993(Ext.3) said to have been executed by Mukta
Dibya(Plaintiff No.2) in favour of defendant(Prasanna
Kumar Dash) in respect of the suit properties is illegal
and void, to declare that the said sale deeds are not
binding upon the plaintiffs, to injunct the defendant
permanently from entering into the suit properties, to
declare the right, title and interest of the plaintiffs over
the suit properties in alternative to recover the
possession of the suit properties from the defendant, if
they(plaintiffs) found to be dispossessed from the suit
properties during the dependency of the suit and to
declare that, the Plaintiff No.1(Upendra Dash) is the
adopted son of Late Bharat Dash and Mukta Dibya as
well as the successor of Bharat Dash and Mukta Dibya.
4. Having been noticed from the trial court in the suit
vide T.S. No.13 of 1994, the defendant contested the
same filing his written statement challenging the suit of
the plaintiff denying the allegations alleged by the
plaintiffs against him in the plaint of the plaintiffs
taking his stands that, the Plaintiff No.1(Upendra Dash)
is not the adopted son of Bharat Das and Mukta Dibya.
He(Upendra Dash) was not adopted by Bharat Dash
and Mukta Dibya either on the day Akshaya Trutiya of
the year 1964 or in any day through giving and taking
ceremony. He(Upendra Dash) has not been adopted by
Bharat Dash and Mukta Dibya at any point of time in
any manner. He(Upendra Dash) was not given in
adoption by his father and mother, i.e., Baidhar
Panigrahi and his wife to Bharat Dash and Mukta
Dibya at any point of time. He(Upendra Dash) is the son
of Baidhar Panigrahi, but, not the adopted son of
Bharat Dash. The averments made in the plaint relating
to the observance of giving and taking ceremony for
adoption of Upendra are false. He(Plaintiff No.1-
Upendra) has prepared some documents projecting him
falsely as the son of Bharat Dash, only in order to grab
the properties of Bharat Dash and Mukta Dibya
illegally. The specific case of the defendant was that,
Bharat Dash died in the year 1962. So, the question of
adopting Upendra by Bharat Dash and Mukta Dibya in
the year 1964 had not arisen.
After the death of Bharat Dash, his wife, i.e.,
Mukta Dibya (Plaintiff No.2) has sold her properties to
several persons executing several sale deeds on dated
19.06.1978 and 20.07.1984 in order to meet her
necessities prior to execution and registration of sale
deeds dated 23.06.1990 and 21.07.1993 in favour of
the defendant. The Plaintiff No.2(Mukta Dibya) had full
knowledge about the selling her properties through
execution and registration of sale deeds. The Plaintiff
No.2(Mukta Dibya) was not an illiterate paradanashini
lady, because, she had full idea and knowledge
regarding transfer of her properties through execution
and registration of sale deeds in order to meet her
necessities. She(Plaintiff No.2-Mukta Dibya) had
executed and registered the sale deeds on dated
23.06.1990 and 21.07.1993 in respect of the suit
properties in favour of the defendant after receiving the
due consideration amount thereof in order to meet her
necessities and she(Mukta Dibya) had also delivered the
possession of the said sold properties, i.e., suit
properties to him(defendant). For which, the deed of
cancellation vide Ext.6 relating to the cancellation of the
sale deeds vide Exts.A and B executed by Mukta Dibya
at the instance of the Plaintiff No.1 on dated
29.02.1993(Ext.6) is her indirect admission to the
proper execution and registration of the sale deeds vide
Exts.2 and 3 by Mukta Dibya in respect of the suit
properties in favour of the defendant. The said deed of
cancellation vide Ext.6 has no legal affect. Since the
date of aforesaid purchase of the suit properties
through sale deeds vide Exts.2 and 3, the defendant
has been possessing the same and has been pay rents
of the same. As the Plaintiff No.1 is not an adopted son
of Bharat Dash, for which, Plaintiff No.1 has no interest
in the suit properties and as the Plaintiff No.2 has sold
the suit properties properly and knowingly to the
defendant in order to meet her necessities, for which,
neither Upendra Dash(Plaintiff No.1) nor Mukta
Dibya(Plaintiff No.2) has right, title, interest and
possession over the suit properties. Therefore, the
plaintiffs are not entitled to get any relief in the suit. For
which, the suit of the plaintiffs is liable to be dismissed
with costs.
5. When, during the pendency of the suit, Mukta
Dibya(Plaintiff No.2) expired, then, only the Plaintiff
No.1((Upendra Dash) prosecuted the suit vide T.S.
No.13 of 1994 against the defendant.
6. Basing upon the aforesaid pleadings and matters
in controversies between the parties altogether eight
numbers of issues were framed by the learned trial
court in the suit vide T.S. No.13 of 1994 and the said
issues are:-
ISSUES
i. Is the suit maintainable?
ii. Has the plaintiff any cause of action to file the
suit?
iii. Is the plaintiff adopted son of Bharat Dash?
iv. Has the plaintiff right, title, interest or possession
over the suit property?
v. Whether the sale deed in respect of A-Schedule
property dated 23.06.1990 executed by Mukta
Dibya in favour of the defendant is genuine and
valid?
vi. Whether the sale deed dated 21.07.1993 in
respect of the suit properties executed by Mukta
Dibya in favour of defendant is genuine and valid?
vii. Has the defendant right, title and possession over
the suit properties by virtue of sale deeds
mentioned above?
viii. To what relief, the plaintiff is entitled?
7. In order to substantiate the aforesaid reliefs sought
for by the Plaintiff(Upendra) against the defendant, the
Plaintiff(Upendra) examined altogether eight numbers of
witnesses from his side including him as P.W.8 and
relied upon several documents vide Exts.1 to 10 on his
behalf.
On the contrary, in order to nullify/defeat the suit
of the plaintiff, the defendant examined eleven numbers
of witnesses on his behalf including him as D.W.11 and
relied upon the documents vide Exts.A to F.
8. After conclusion of hearing and on perusal of the
materials, documents and evidence available in the
record, the learned trial court answered all the issues in
favour of the defendant and against the plaintiff.
Basing upon the findings and observations made
by the learned trial court in all the issues against the
Plaintiff(Upendra) and in favour of the defendant, the
learned trial court dismissed the suit vide T.S. No.13 of
1994 of the Plaintiff(Upendra) on contest against the
defendant as per its judgment and decree dated
18.11.1995 and 02.12.1995 respectively assigning the
reasons that,
"Plaintiff(Upendra) failed to establish him as the
adopted son of Bharat Dash and Mukta Dibya through
legally admissible evidence. Because, the Plaintiff could
not establish about the giving to him by his natural
father and mother to Bharat Dash and Mukta Dibya for
adoption. When, the Plaintiff No.1 failed to establish any
lawful giving and taking ceremony as per law for his
adoption by Bharat Dash and his wife Mukta Dibya. The
documents showing him, as the adopted son of Bharat
Dash cannot establish him, as the son of Bharat Dash
and Mukta Dibya in absence of his proper adoption as
per law through giving and taking ceremony. The
execution and registration of the sale deeds dated
23.06.1990 and 21.07.1993 in respect of the suit
properties by Mukta Diya(Plaintiff No.2) in favour of the
defendant cannot be held as invalid, because, it is
established that, the Plaintiff No.2 had sold the suit
properties to the defendant knowingly through proper
execution of the sale deeds vide Exts.A and B in order to
meet her necessities. The due and proper execution and
registration of the sale deeds vide Exts.A and B in
respect of the suit properties by Mukta Dibya in favour of
the defendant has been established.
When the Plaintiff failed to establish him, as the
adopted son of Bharat Dash and Mukta Dibya as well as
lawful successor of Bharat Dash and Mukta Dibya and
when execution and registration of sale deeds vide
Exts.A and B by Mukta Dibya in respect of the suit
properties in favour of the defendant has been duly
established, then, at this juncture, the Plaintiff(Upendra)
is not entitled to get any relief in his suit. For which,
learned trial court dismissed the suit of the Plaintiff
(Upendra) vide T.S. No.13 of 1994 on contest against the
defendant."
9. On being dissatisfied with the aforesaid judgment
and decree of the dismissal of the suit of the
plaintiff(Upendra) vide T.S. No.13 of 1994 passed on
dated 18.11.1995 and 02.12.1995 respectively, the
Plaintiff(Upendra) challenged the same preferring the
1st appeal vide T.A. No.01 of 1996 being the appellant
against the defendant arraying him (defendant) as
respondent.
10. After hearing from both the sides, the learned 1st
appellate court allowed that 1st appeal vide T.A. No.01
of 1996 of the appellant(plaintiff) on contest and set
aside the judgment and decree of the dismissal of the
suit passed by the learned trial court and decreed the
suit of the plaintiff vide T.S. No.13 of 1994 against the
defendant on contest as per its judgment and decree
dated 07.04.1997 and 23.04.1997 respectively
assigning the reasons that,
"there is preponderance of evidence that, giving and
taking ceremony in respect of Plaintiff(Upendra) was duly
performed, when, he was transplanted as adopted son
of Bharat Dash. Because, there is preponderance of
evidence that, adoption of the appellant/plaintiff
(Upendra) was taken place with the consent of his
natural mother, i.e., wife of Baidhar Panigrahi, even
though the wife of Baidhar Panigrani(natural mother of
Plaintiff-Upendra) had not handed over him(Upendra) to
Bharat Das and Mukta Dibya. For which, after the death
of Bharat Dash, Plaintiff(Upendra) had 50% share over
the properties covered under the sale deeds vide Exts.A
and B (Exts.2 and 3). As, by the time of execution of
Exts.2 and 3, Upendra was major, for which, the
execution of the sale deeds made by Mukta Dibya in
favour of the defendant cannot confer any title in favour
of the defendant and the said sale deeds vide Exts.2 and
3(Exts.A and B) dated 23.06.1990 and 21.07.1993
respectively in favour of the defendant in respect of the
suit properties were not duly executed by Mukta Dibya.
For which, deed of cancellation executed by Mukta Dibya
vide Ext.6 was proper and the evidence adduced on
behalf of the defendant is not establishing due and
proper execution of the sale deeds vide Exts.A and
B(Exts.2 and 3) dated 23.06.1990 and 21.07.1993
respectively by discharging the onus, which was lying
upon him(defendant). Because, Mukta Dibya was an
illiterate and paradanashini lady having her no idea and
knowledge about any sale transaction. So, the sale
deeds dated 23.06.1990 and 27.07.1993(Exts.A and B,
Exts.2 and 3) said to have been executed by Mukta
Dibya(Plaintiff No.2) in favour of the defendant are void
and non-est in the eye of law. Therefore, defendant has
no title over the suit properties. The Plaintiff(Upendra)
being the successor of Bharat Dash and Mukta Dibya,
he(Plaintiff-Upendra) is the exclusive owner of the suit
properties inheriting the same through succession from
Mukta Dibya as her adopted son. So, the learned 1st
appellate court decreed the suit vide T.S. No.13 of 1994
of the plaintiff declaring him(Plaintiff-Upendra) as the
adopted son of Mukta Dibya and also declared his title
over the suit properties and declared the sale deeds
dated 23.06.1990 and 21.07.1993(Exts.A and B, Exts.2
and 3) as illegal, invalid and void and injuncted the
defendant permanently from entering into the suit
properties"
11. On being aggrieved with the aforesaid judgment
and decree dated 07.04.1997 and 23.04.1997
respectively passed by the learned 1st appellate court in
T.A. No.01 of 1996 in setting aside the judgment and
decree of the dismissal of the suit of the Plaintiff
(Upendra Dash) passed by the learned trial court, the
defendant challenged the same preferring this 2nd
appeal being the appellant against the Plaintiff
(Upendra) arraying him(Plaintiff-Upendra) as
respondent.
12. This 2nd appeal was admitted on formulation of the
following substantial questions of law, i.e.:-
(i) Whether, the judgment and decree passed by the
learned 1st appellate court is erroneous, illegal and
contrary to law and facts available in the record?
(ii) Whether, the learned 1st appellate court reversed
the findings on facts rendered by the learned trial court
without applying its mind to the reasons assigned by
the learned trial court?
(iii) Whether, the findings of the learned 1st appellate
court that, Mukta Dibya had no independent advice at
the time of execution of the sale deeds in favour of the
defendant in respect of the suit properties, when, there
is the admission of the plaintiff in Para No.21 that,
Mukta Dibya had sold land to Birupakhya Hota,
Baidhar Dash in the year 1984 are sustainable under
law?
13. I have already heard from the learned counsel for
the appellant(defendant) and learned counsel for the
respondent(plaintiff).
14. In support of the impugned judgment and decree
passed by the learned 1st appellate court, the learned
counsel for the respondent/plaintiff relied upon the
following decisions:-
(i) AIR 1965(OR)-354,
(ii) 1974(Vol.-40) CLT-469 and
(iii) AIR 1968 Mysore-309
15. As per the findings and observations made by the
learned trial court and the learned 1st appellate court
on the basis of the pleadings and evidence of the
parties, when all the above three formulated substantial
questions of law are inter-linked having ample nexus
with each other, then, all the formulated substantial
questions of law are taken up together analogously for
their discussions hereunder.
16. Plaintiff (Upendra) alone was prosecuting the suit
vide T.S. No.13 of 1994 claiming his title in the suit
properties as an adopted child and successor of Late
Bharat Dash and Mukta Dibya, to which, the defendant
had/has been seriously disputing/denying taking his
stands all through that, the plaintiff(Upendra) is not the
adopted son as well as successor of Bharat Dash and
Mukta Dibya.
17. On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions:-
(i) In a case between Jayaram Sahoo @ Behera vrs.
Banamali Sahoo and others : reported in 114(2012)
CLT-1049 that, person, who claims to have succeeded to
in property by virtue of he being adopted to a family, onus
always lies on such person to prove the fact of
adoption(Para-12).
(ii) In a case between Nilima Mukharjee vrs. Kanta
Bhusan Ghosh : reported in (2001) 6 SCC-660 that,
person pleading that, he is adopted, held, must discharge
burden of proof regarding the fact of adoption and its
validity. Person claiming to be adopted child of deceased
tenant--Held--must prove fact of adoption.
So, in view of the propositions of law enunciated in
the ratio of the above decisions, onus lies on the
Plaintiff(Upendra) to establish that, he(Plaintiff-
Upendra) is the adopted son of Late Bharat Dash and
Mukta Dibya.
18. It is the case of the plaintiff that, he was the
natural born son of Baidhar Panigrahi and his wife.
While, he was aged about two years, on the day of
Akshya Trutiya of the year 1964, Bharat Dash and his
wife Mukta Dibya adopted him as their adopted son
receiving him (Plaintiff-Upendra) from his natural
parents through a giving and taking ceremony in their
house, in which, Baidhar Panigrahi, i.e., his natural
father and wife of Baidhar Panigrahi, i.e., his natural
mother had given him(Plaintiff-Upendra) in adoption to
Bharat Dash and Mukta Dibya.
P.W.1 (Kunja Bihari Das cited as a witness on
behalf of the plaintiff-Upendra to the so-called adoption)
has not uttered a single word in his evidence about the
presence of the natural mother of the Plaintiff (Upendra)
at the time of observance of the so-called giving and
taking ceremony. He(P.W.1) has also deposed in his
evidence that, he cannot say, in which year, the
adoption took place.
The so-called priest of the so-called adoption
ceremony, i.e, P.W.3(Jambeswar Hota) has deposed in
his evidence that, Upendra's father and grand-mother
had come to attend that ceremony, but, Upendra's
natural mother had not come.
The said P.W.3 has also deposed in his
examination-in-chief that, Baidhar's wife, i.e., natural
mother of Plainhtiff-Upendra was not present at the
place of ceremony.
P.W.6 has not stated anything about the handing
over Upendra by his natural father and mother to
Bharat Dash and Mukta Dibya.
P.W.7 has not deposed about the handing over
Plaintiff-Upendra to Bharat Dash and Mukta Dibya to
receive him(Plaintiff-Upendra) as their adopted son.
19. As such, P.Ws.1, 3, 6 and 7 (those were examined
on behalf of the plaintiff as witnesses to the so-called
giving and taking ceremony of the Plaintiff-Upendra),
they(P.Ws.1, 3, 6 and 7) have not stated about the
presence of the natural mother of Plaintiff-Upendra at
the time of the so-called giving and taking ceremony.
There is also no legally admissible evidence in the
record on behalf of the plaintiff(Upendra) to establish
the consent of his natural mother in giving
him(Upendra) in adoption to Bharat Dash and Mukta
Dibya.
20. During trial, plaintiff-Upendra has not also
examined his natural mother to state about her consent
in giving Plaintiff-Upendra as adopted son of Bharat
Dash and Mukta Dibya. There is no explanation on
behalf of the plaintiff about the cause and reason of
withholding the examination of the natural mother of
the Plaintiff(Upendra).
21. The fate of any so-called disputed adoption of a
child like the Plaintiff-Upendra in this suit/appeal at
hand, when the natural mother of a child remains
absent at the time of so-called giving and taking
ceremony relating to adoption and when, there is no
firm evidence in establishing the consent of the natural
mother of the child in giving the child in adoption like
Plaintiff-Upendra has already been clarified in the ratio
of the following decisions :-
(i) In a case between M. Vanaja vrs. M. Sarla Devi :
reported in 2020(1) CCC(S.C.)-330--That consent of wife
is mandatory for proving adoption.
(ii) In a case between Gangavva and others vrs.
Ningavva and others : reported in (2008) 4 CCC-
359(Karnataka)--Adoption--Validity--Consent of wife
is a condition precedent for a valid adoption.
(iii) In a case between Ghisalal vrs. Dhapubai(dead)
by L.Rs. and others and Dhapubai(dead) widow of
Gopalji through L.Rs. vrs. Ghisalal and others :
reported in 2011(1) OJR(S.C.)-262--Requisites of a valid
adoption after the act, 1956--Explained--Wife's Consent--
Proof of--
The consent of wife envisaged in the Proviso to
Section 7 should either be in writing or reflected by an
affirmative/positive act voluntarily and willingly done by
her. If the adoption by a Hindu male becomes subject
matter of challenge before the Court, the party supporting
the adoption has to adduce evidence to prove that, the
same was done with the consent of wife. The wife's silence
or lack of protest on her part also cannot give rise to an
inference that, she had consented to the adoption.(Para-20)
(iv) In a case between Bhanu Pratap Singh vrs. State
of U.P. and others : reported in 2021(2) Civil Court
Cases-544(Allahabad)--Adoption by Male Hindu without
consent of wife--Validity--Wife living separately, though
never divorce. Consent of estranged wife required for
adoption. Adoption without consent of wife rightly found
not even valid.
(v) In a case between Sri Bhakta Prasad Sahu alias
Bhismadev Sahu vrs. Additional Commissioner of
Settlement and Consolidation, Sambalpur and others
: reported in 2014(II) OLR-1008 that, requirement of
validity of a adoption is that, the adopted child must have
been given by the parents or the guardian and must have
been accepted by the person taking on adoption. A deed of
adoption or acknowledgement of adoption only serves as a
piece of evidence, to which, a presumption must be
attached, if the document is registered, but, by mere proof
of the document, the factum of valid adoption cannot be
proved without there being any evidence about giving and
taking of the child in adoption.(Para-9)
(vi) In a case between Lakshman Singh Kothari vrs.
Smt. Roop Kanwar : reported in AIR 1961 (S.C.)-1378--
Giving and 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 another. The party, who is trying to
sustain adoption is to prove the same making free from
suspicious or fraud and should be consistent and probable
as to leave no occasion for doubting its truth.
(vii) In a case between Kishori Lal vrs. Mt. Chaltibai :
reported in AIR 1959 S.C.-504 that, as, an adoption,
results in changing the course of succession, the evidence
to support it should be such that, it is free from all
suspicions of fraud and so consistent and probable as to
leave no occasion for doubting its truth.(Para-7)
(viii) In a case between Debahari Behera(dead) and
others vrs. Dhruba Behera : reported in 2018(II) CLR-
495 that, creation of document is not substitute for a fact
of giving and taking ceremony of adoption, which must be
proved independently dehors any document.(Para-2)
(ix) In a case between Harekrushna Dash vrs.
Sadasiva Dash : reported in 2018(II) OLR-359 that, mere
creation of document in support of prior adoption cannot
be the substitute of the actual evidence of giving and
taking with regard to adoption. Onus lies on the person,
who claims adoption to prove the same by leading clear,
cogent and acceptable evidence with regard to the factum
of giving and taking ceremony.
(x) In a case between Madhusudan Das vrs. Smt.
Nrayani Bai and others : reported in AIR 1983 S.C.-
114--For a valid adoption, the physical act of giving and
taking is an essential requisite.(Para-20)
(xi) In a case between Bauri Dei and others vrs.
Dasarathi Sahu and others : reported in XLI(1975)
CLT-267 that, creation of documents is not substitute for
the fact of fiving and taking, which must be proved
independently dehors any document.
(xii) In a case between Shibashankar Sekhar Deo and
others vrs. Jagannath Sekhar Deo and others :
reported in 2018(II) CLR-506--About 150 years back, the
Privy Council in the case of Tayammaul vrs.
Sashachalla Naiker, (1865) 10 Moo Ind APP 429 held
that, performance of funeral rites will not sustain the
validity of the adoption, unless it clearly appears that, the
act itself was performed under such circumstances as
would render it perfectly legal.
22. Here, in this matter at hand, when, the witnesses
of the plaintiff, i.e., P.Ws.1, 3, 6 and 7 have specifically
deposed above that, at the time of observance of the so-
called giving and taking ceremony relating to the
adoption of Plaintiff-Upendra, his natural mother was
not present and when, it is not established firmly that,
the so-called adoption ceremony regarding the adoption
of Plaintiff-Upendra was performed with the consent of
the natural mother of the Plaintiff-Upendra, and when,
as per law, the child must have been given by the
natural parents to the adoptive parents for a valid and
lawful adoption and when, there is no explanation on
behalf of the plaintiff about the cause and reason of
withholding the examination of the natural mother of
the Plaintiff-Upendra and when, the consent of the
natural mother of the Plaintiff-Upendra in giving
him(Plaintiff-Upendra) in adoption is not established on
the basis of the above evidence and when, the main
essential of valid adoption has not been established,
then at this juncture, it is held that, the Plaintiff-
Upendra has not been able to establish that, he is the
adopted son of Bharat Dash and Mukta Dibya.
23. Due to failure of the plaintiff to establish that, he
is the adopted son of Bharat Dash and Mukta Dibya,
the documents relied by the plaintiff with reflections
therein that, he (Plaintiff-Upendra) as the son of Bharat
Dash and Mukta Dibya cannot establish him(Plaintiff-
Upendra) as the adopted son of Bharat Dash and
Mukta Dibya, only for the reason that, creation of
documents are not substitute of giving and taking
ceremony.
So, by applying the principles of law enunciated in
the ratio of the above decisions to this suit/appeal at
hand, it is held that, the Plaintiff-Upendra has failed to
establish that, he(Plaintiff-Upendra) is the adopted son
of Bharat Dash and Mukta Dibya.
24. As per the discussions and observations made
above, when, it is held that, Plaintiff-Upendra has not
been able to establish that, he(Plaintiff-Upendra) is the
adopted son of Bharat Dash and Mukta Dibya, then at
this juncture, the findings and observations made by
the learned 1st appellate court reversing the findings
and observations made by the learned trial court that,
even in absence of failure of the Plaintiff-Upendra to
establish the consent of the natural mother of the
Plaintiff-Upendra for his adoption, still then, the
documents relied by the Plaintiff-Upendra with
reflections therein that, Plaintiff-Upendra is the son of
Bharat Dash and Mukta Dibya probabilising his
adoption by Bharat Dash and Mukta Dibya cannot be
sustainable under law.
25. So far as the validity of the execution of the sale
deeds vide Exts.A and B (Exts.2 and 3) in respect of the
suit properties by Mukta Dibya in favour of the
defendant/appellant in this 2nd appeal is concerned.
The unilateral deed of cancellation to the aforesaid two sale
deeds vide Exts.A and B (Exts.2 and 3) executed by Mukta Dibya
through deed of cancellation vide Ext.6 is indirectly establishing
the due execution of the said deeds vide Exts.A and B (Exts.2 and
3) by her (Mukta Dibya) in favour of the defendant.
Though, it has been alleged in the plaint that, the defendant
had managed to execute the said sale deeds vide Exts.A and B
(Exts.2 and 3) in respect of the suit properties from Mukta Dibya
by practising fraud and misrepresentation, but, there is no
pleadings and evidence in the record on behalf of the plaintiff to
show about the manner as well as the particulars of the alleged
fraud, those were allegedly practised by the defendant against
Mukta Dibya for execution and registration of the sale deeds vide
Exts.A and B (Exts.2 and 3).
Plaintiff-Upendra(P.W.8) has specifically deposed in Para
No.21 of his deposition that, Mukta Dibya had sold her some
properties to Harihar Panda. She(Mukta Dibya) had sold her some
properties to Birupakhya Hota on dated 20.07.1984 and she had
also sold her some properties to Basudev Dash.
The above evidence of P.W.8(Plaintiff-Upendra) is going to
show that, prior to the execution of the sale deeds vide Exts.A and
B in the year 1990 and 1993 in favour of the defendant in respect
of the suit properties, Mukta Dibya had executed the above sale
deeds in selling her properties in favour of the other persons, i.e.,
Harihar Panda, Birupakhya Hota and Basudev Dash.
Exts.A and B (Exts.2 and 3) are going to show that, the
stamp papers for the execution of the said sale deeds dated
23.06.1990 and 21.07.1993 vide Exts. A and B by Mukta Dibya
in respect of the suit properties in favour of the defendant were
purchased by Mukta Dibya.
Though, it is not the law that, merely, because, a
lady execute sale deeds earlier, she is to be excluded
from the category of paradanasini lady, but, here in this
suit/appeal at hand, when plaintiff-Upendra is claiming
his title over the suit properties on the basis of
inheritance and succession as the adopted son of the
vendor of the defendant, i.e., Mukta Dibya and when,
he(Plaintiff-Upendra) has failed to establish that, he is
the successor of Mukta Dibya due to his failure to
establish that, he is the adopted son of Mukta Dibya
and when, the execution of the sale deeds vide Exts.A
and B by Mukta Dibya in favour of the defendant have
indirectly been established due to the admission of the
execution thereof by Mukta Dibya through the
execution of deed of cancellation thereof vide Ext.6
unilaterally by Mukta Dibya admitting the execution of
Exts.A and B by her and when, the stamp papers for
the execution of Exts.A and B were purchased by
Mukta Dibya, then at this juncture, by applying the
ratio of the decisions in the case between Smt.
Haramani Paikray vrs. Hadibandhu Senapati and
others : reported in 2017(II) OLR 1060 and between
Sambhu Sethi and others vrs. Madhusudan Taria
and others : reported in 2018(II) OLR-267 to the
aforesaid conduct of Mukta Dibya and the
circumstances as discussed above under which, the
deeds vide Exts.A, B and Ext.6 were executed by Mukta
Dibya, it is held that, the sale deeds vide Exts.A and B
(Exts.2 and 3) were executed by Mukta Dibya in favour
of the defendant in respect of the suit properties with
her full knowledge and intention in selling the suit
properties to the defendant.
Therefore, the findings and observations made by
the learned 1st appellate court in its judgment and
decree passed T.A. No.01 of 1996 that, the defendant
had managed to execute the sale deeds in respect of the
suit properties vide Exts.A and B (Exts.2 and 3) from
Mukta Dibya by practising fraud and misrepresentation
and that the Exts.A and B are void and that the
Plaintiff-Upendra has his title over the suit properties
as the adopted son of Mukta Dibya cannot be
sustainable under law.
For which, in other words, the judgment and
decree passed by the learned trial court in dismissing
the suit of the plaintiff vide T.S. No.13 of 1994 has
become sustainable under law.
26. As per the discussions and observations made
above, the decisions relied by the learned counsel for
the respondent/plaintiff indicated in Para No.14 of this
judgment have become inapplicable to this 2nd appeal at
hand.
27. Therefore, there is justification under law for
making interference with the judgment and decree
passed by the learned 1st appellate court in T.A. No.01
of 1996 through this 2nd appeal filed by the
defendant(appellant).
28. As such, there is merit in this 2nd appeal filed by
the appellant(defendant). The same must succeed.
29. In result, this 2nd appeal filed by the
appellant(defendant) is allowed on contest, but, without
cost.
30. The judgment and decree passed by the learned 1st
appellate court in T.A. No.01 of 1996 is set aside.
The judgment and decree passed by the learned
trial court in dismissing the suit of the Plaintiff vide T.S.
No.13 of 1994 is confirmed.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 26th of September, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
