Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.32 of 1993 In the matter of an appeal under Section 100 C.P.C, 1908. *** Sri Gopinath Bhukta (died) & Others … Appellants. -VERSUS- Bansidhar Pradhan (died) & Others … Respondents. Counsel appeared for the parties: For the Appellant : Mr. B.C. Panda, Advocate. For the Respondent : Mr. P.V. Balakrishna, Advocate. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 12.07.2024 :: Date of Judgment : 26.07.2024 ANANDA CHANDRA BEHERA, J.— JUDGMENT 1. This 2nd Appeal has been preferred against the partially reversing Judgment. S.A. No.32 of 1993 Page 1 of 10 2. The appellant of this 2nd Appeal i.e. Gopinath Bhukta was the sole
Legal Reasoning
defendant before the Trial Court in the suit vide T.S. No.45 of 1984 and he was the appellant before the First Appellate Court in the 1st Appeal vide T.A. No.15 of 1990. When the appellant Gopinath Bhukta of this 2nd Appeal expired during the pendency of this 2nd Appeal, then his LRs have been substituted in his place as appellant Nos.1(a) & 1(b). The respondents of this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.45 of 1984 and they were the respondents before the First Appellate Court in the 1st Appeal vide T.A. No.15 of 1990. The suit of the plaintiffs vide T.S. No.45 of 1984 before the Trial Court was a suit for declaration of their joint 3/4th share over the suit properties. 3. As per the pleadings of the plaintiffs in the suit vide T.S. No.45 of 1984, the suit properties described in Schedule ‘B’ of the plaint are Ac.13.68 decimals. Kara Bhukta was their common ancestor. Kara Bhukta died leaving behind one son and two daughters i.e. Dutia, Nila & Champa. Dutia died issueless. The plaintiffs are the children of Champa. The defendant is the son of Nila. The family pedigree of Kara Bhukta is depicted hereunder: S.A. No.32 of 1993 Page 2 of 10 Kara Bhukta Dutia (Son) Nila (Daughter) Champa (daughter) Gopinath Bhukta (defendant No.1) Bansidhar Jema Jamuna (Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.1) Their common ancestor Kara Bhokta was the original owner of the suit properties described in the Schedule “B” of the plaint. After the death of Kara Bhokta, the suit properties left by him, devolved upon his children i.e. Dutia, Nila & Champa. After the death of Dutia, his share in the suit properties devolved upon the plaintiffs and defendant as Dutia died issueless. Therefore, they (plaintiffs) have 3/4th share in the suit properties. But, when the defendant created disturbance disputing the share of the plaintiffs over the suit properties, then, the plaintiffs approached the Civil Court by filing the suit vide T.S. No.45 of 1984 against the defendant praying for declaration of their 3/4th share jointly over the suit properties. S.A. No.32 of 1993 Page 3 of 10 4. Having been noticed from the Trial Court in the suit vide T.S. No.45 of 1984, the defendant contested the same by filing his written statement denying the allegations alleged by the plaintiffs against him (defendant) taking his stands inter alia therein that; As the son of Kara Bhokta i.e. Dutia was a congenital blind person, for which, Dutia and his wife adopted him (defendant) as their son on dated 15.08.1947, while he (defendant) aged about 7 years and since then, he has been staying in the house of Dutia. After the death of Dutia and his wife, he (defendant) has performed the obsequies of Dutia and his wife in the capacity of their son. As, he (defendant) belong to an aboriginal backward tribe and illiterate, for which, he could not record the name of Dutia in the public record as his father, for which, his natural father’s name has been indicated in his voter list as his father. When, he (defendant) is the adopted son of Dutia, for which, after the death of Dutia, the entire suit properties had devolved upon him and as such, he (defendant) is the owner of the entire suit properties. So, the plaintiffs cannot claim their share over the suit properties. Therefore, the suit of the plaintiffs is liable to be dismissed against him (defendant). 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No.45 of 1984 and the said issues are: S.A. No.32 of 1993 Page 4 of 10 ISSUES Is the suit maintainable? Whether the defendant was adopted by Dutia Bhukta i.e. his uncle, in 1. 2. 1947 and whether the plaintiffs are entitled to the share as claimed? 3. 4. get three-fourth share in the suit land in partition? 5. Has the defendant full and absolute title in the suit land? Have the plaintiffs right and title in the suit land and they are entitled to To what relief, the parties are entitled to? 6. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendant, they (plaintiffs) examined 4 witnesses from their side including plaintiff No.1 as P.W.1 and relied upon the documents vide Exts.1 & 2. On the contrary, in order to defeat/nullify the suit of the plaintiffs, he (defendant) also examined 3 witnesses on his behalf including him as D.W.1 and exhibited two documents from his side vide Ext.A & B. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court held that, the defendant failed to establish him as the adopted son of Dutia, for which, after the death of Dutia, his 1/3rd share in the suit properties devolved upon the children of his two sisters i.e. plaintiffs and defendant. For which, the plaintiffs are entitled to get half share jointly and the defendant alone is entitled to get half share from the suit properties and basing upon such findings and observations, the Trial Court decreed the suit vide T.S. No.45 of 1984 of the plaintiffs preliminarily for partition on contest against the defendant without cost entitling the plaintiffs to get half share jointly and Page 5 of 10 S.A. No.32 of 1993 entitling the defendant to get half share alone in the suit properties as per its Judgment and Decree dated 24.07.1990 & 07.08.1990 respectively. 8. On being dissatisfied with the aforesaid Judgment and Decree dated 24.07.1990 & 07.08.1990 respectively passed by the Trial Court in T.S. No.45 of 1984 disregarding the claim of the defendant to declare him as the adopted son of Dutia and allotment of half share jointly to the plaintiffs, he (defendant) challenged the same by preferring the 1st Appeal vide T.A. No.15 of 1990 being the appellant against the plaintiffs arraying them (plaintiffs) as respondents. In the said 1st Appeal vide T.A. No.15 of 1990, the plaintiffs (those were the respondents in the 1st Appeal) filed cross objection challenging the allotment of shares made by the First Appellate Court on the ground of inadequacy of allotment claiming their 3/4th share in the suit properties. After hearing from both the sides, the First Appellate Court dismissed that 1st Appeal of the defendant concurring/accepting the findings and observations made by the Trial Court against him, but allowed the cross objection of the plaintiffs on contest as per its Judgment and Decree dated 13.11.1992 and 27.11.1992 respectively modifying the allotment of the share made by the Trial Court in its Judgment and Decree entitling the plaintiffs to get 3/4th share jointly in the suit properties and entitling the defendant to get 1/4th share alone in the suit properties. S.A. No.32 of 1993 Page 6 of 10 9. On being aggrieved with the aforesaid Judgment and Decree of the cross objection of the plaintiffs passed by the 1st Appellate Court against the defendant in T.A. No.15 of 1990, he (defendant) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiffs arraying them (plaintiffs) as respondents. When during the pendency of the 2nd Appeal, the defendant (appellant of this 2nd Appeal) expired, then in his place his LRs have been substituted as appellant Nos.1(a) & 1(b). 10. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. i. Whether the adoption in question being an old one, strict proof thereof is necessary and whether the findings recorded by the courts below are liable to be set aside, as the legal position with regard to proof of ancient adoption was not kept in view? ii. Whether the allotment of shares of the suit properties by the First Appellate Court between the parties modifying the allotment of shares made by the Trial Court is sustainable under law? 11.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 12. The adoption of the defendant by his uncle Dutia has been seriously disputed by the plaintiffs. It is the settled propositions of law that; “Burden of proof heavily lies on the person, who sets up a case of adoption, because, the same makes a departure from the natural course and incidents of succession. Therefore, evidence in support of an S.A. No.32 of 1993 Page 7 of 10 adoption must be sufficient to satisfy the very grave and serious onus, which rests upon the person, who seeks to displace the natural line of succession by alleging an adoption. For which, the law has been fairly settled that, evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus, which rests upon the person, who seeks to displace the natural line of succession through adoption.” Therefore, physical act of giving and receiving is absolutely necessary for validity of an adoption. So, there has to be some overtact to signify delivery of child from one family to another family. For disregarding the claim of adoption of the defendant, the 1st Appellate Court has assigned reasons being in agreement with the findings and observations of the Trial Court that, when, there is no evidence in the record about the giving and taking of the defendant and when, he (defendant), D.W.1 has admitted in his pleadings and evidence that, in all the public records, the name of his natural father i.e. Digambar Bhukta have been indicated as his father, then at this juncture, the findings and observations made by the Trial Court and First Appellate Court refusing the claim of the defendant as the adopted son of his uncle Dutia cannot be held as unreasonable. 13. It is the concurrent findings of the Trial Court and the First Appellate Court that, the plaintiffs are the children of Champa. The defendant is the son of the Nila. S.A. No.32 of 1993 Page 8 of 10 Both Champa & Nila are the two sisters of Dutia. Therefore, the First Appellate Court has held in its Judgment that, the plaintiffs and defendant being the children of Dutia, they are entitled to inherit the share of Dutia equally as per Entry No.IV of Class-II heirs in the Schedule of Hindu Succession Act, 1956. So, on the basis of the aforesaid findings of the First Appellate Court, the plaintiffs should have been entitled to get half share jointly as per the allotment made by the Trial Court i.e. their 1/3rd share + 1/6th share from the share of Dutia i.e. in total 1/2nd share. Likewise, the defendant should have been entitled to get half share as per the allotment made by the Trial Court i.e. his 1/3rd share + 1/6th share from the share of Dutia i.e. in total 1 ‰ share. But, instead of allotting ‰ share to the plaintiffs jointly and half share to the defendant alone in the suit properties, the First Appellate Court has inadequately allotted 3/4th share to the plaintiffs jointly and 1/4th share alone to the defendant in the suit properties modifying the allotment of shares made by the Trial Court, which should not have been made. So, the above allotment of shares made by the First Appellate Court between the parties in respect of the suit properties is not in conformity with the law. For which, there is justification under law for making interference with the judgment and decree passed by the 1st Appellate Court in T.A. S.A. No.32 of 1993 Page 9 of 10 No.15 of 1990 in the matter of allotment of shares between the parties through this 2nd Appeal filed by the defendant (appellant). 14. Therefore, there is some merit in the appeal of the defendant (appellant). The same is to be allowed in part. 15. In result, the 2nd Appeal filed by the appellant (defendant) is allowed in part on contest against the respondents (plaintiffs), but without cost. 16. The Judgment and Decree passed by the First Appellate Court modifying the allotment of shares of the parties made by the Trial Court is set aside. 17. The Judgment and Decree passed by the Trial Court in the suit vide T.S. No.45 of 1984 entitling the plaintiffs jointly to get half share and entitling the defendant to get half share alone in the suit properties is confirmed. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 26th July, 2024// Rati Ranjan Nayak Sr.Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 08-Nov-2024 17:51:42 S.A. No.32 of 1993 Page 10 of 10