The High Court
Case Details
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 For Respondent : : CORAM: JUSTICE A.C. BEHERA Mr. S.R. Pattanaik, Advocate Mr. A.C. Swain, Advocate assisted by Ms. S.A. Swain, Advocate 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 Page 2 of 34 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
Legal Reasoning
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 Page 3 of 34 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 Page 4 of 34 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. Page 5 of 34 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 Page 6 of 34 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) Page 7 of 34 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 Page 8 of 34 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 Page 9 of 34 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 Page 10 of 34 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:- i. ii. I S S U E S Is the suit maintainable? 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? Page 11 of 34 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. Page 12 of 34 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 Page 13 of 34 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 Page 14 of 34 (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, Page 15 of 34 “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. Page 16 of 34 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 Page 17 of 34 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.:- Page 18 of 34 (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) (ii) AIR 1965(OR)-354, 1974(Vol.-40) CLT-469 and (iii) AIR 1968 Mysore-309 Page 19 of 34 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 Page 20 of 34 in property by virtue of he being adopted to a family, onus always fact of lies on such person to prove the 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. Page 21 of 34 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. Page 22 of 34 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 Page 23 of 34 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— Page 24 of 34 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) In a case between Bhanu Pratap Singh vrs. State (iv) 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.
Legal Reasoning
In a case between Sri Bhakta Prasad Sahu alias (v) 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 Page 25 of 34 of giving and taking ceremony of adoption, which must be proved independently dehors any document.(Para-2) In a case between Harekrushna Dash vrs. (ix) 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. In a case between Shibashankar Sekhar Deo and (xii) others vrs. Jagannath Sekhar Deo and others : reported in 2018(II) CLR-506—About 150 years back, the in the case of Tayammaul vrs. Privy Council 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 Page 26 of 34 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- Page 27 of 34 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 Page 28 of 34 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 Page 29 of 34 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 Page 30 of 34 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 Page 31 of 34 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 Page 32 of 34 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. Page 33 of 34 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. Orissa High Court, Cuttack The 26th of September, 2025/ Jagabandhu, P.A. ( A.C. Behera ) Judge Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 28-Sep-2025 08:57:44 Page 34 of 34