The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 500 of 2005 An appeal under Section 100 Code of Civil Procedure. --------------- Bodanna Venkata Rao ...… Appellant -Versus- Bodanna Ganapati Rao and Others ..… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s.P.K. Misra, S.K. Dash & Sunil Kumar Dash Advocates For Respondents : Mr.H.M. Dhal, B.B. Swain & D. Pattnaik Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd August, 2024 SASHIKANTA MISHRA, J. This is an appeal by one of the Defendants against a confirming judgment. Said judgment was passed by learned Addl. District Judge, Paralakhemundi on 07.07.2005 followed by decree in Title Appeal No.4 of Page 1 of 12 2002 whereby the judgment dated 31.01.2002 followed by decree passed by learned Civil Judge (Senior Division)
Legal Reasoning
Paralakhemundi in T.S. No. 54 of 2001, was confirmed. 2. For convenience, the parties have been referred to as per their respective status in the trial Court. 3. For better appreciation of the dispute reference to the following genealogy would be useful:- Madhav Rao (Father/dead) Kanakamma B.Venkat Rao B.Ganapati Rao Padma (Daughter & D-2) (Son & D-1) (Son & Plaintiff) (Daughter & D.3) 4. The Plaintiff being one of the sons of Madhav Rao, filed the suit for partition. The case of the Plaintiff is that the Defendant No.1 is his elder brother, Defendant No.2 is the eldest sister and Defendant No.3 is his younger sister. Item No.1 of the suit schedule property is the self- acquired property of the father of the Plaintiff. Item No. 1(a) was purchased by their father in the name of their mother. Item No.2 is the ancestral house of their father, wherein Defendant No.2 invested money for its development. The Plaintiff is in possession of the property Page 2 of 12 under Item No.1(a) and (c) while the property described under Item No.1 (b) and 2 are in possession of Defendant No.1. Defendant Nos.2 and 3 relinquished their right over the suit properties in favour of their brother by executing a Registered Deed of relinquishment on 18.01.1993. Since there was a dispute between the Plaintiff and Defendant No.1 regarding partition, the Plaintiff filed the suit. 5. Defendant No.1 contested the suit by filing written statement. He admitted that Defendant Nos.2 and 3 had relinquished their shares/rights over the suit properties under the deed of relinquishment dated 18.01.1993. Further, a specific plea was taken that during the lifetime of their father, the Plaintiff was given in adoption to one Savitramma on the Kotha Amavasya day in the year 1964 after observing a function in the family. Since that day, the Plaintiff ceased to be a member of their family being accepted as the adopted son of Savitramma and thereby his rights in respect of the properties of his natural father were curtailed. The Plaintiff succeeded to the properties of Savitramma after her death. During her lifetime Savitramma acknowledged the Plaintiff as her adopted son Page 3 of 12 in a registered gift deed executed in respect of her properties. As such, the Plaintiff has no matter of right, title, interest or possession over the suit properties and therefore, not entitled to claim partition. 6. Basing on such rival pleadings, the trial court framed the following issues for determination:- “1. Is the suit maintainable in law? 2. Is there any cause of action to file the suit? 3. Is the plaintiff adopted to B. Savitramma in the year 1954 on kotha Amavasya day as per caste custom? 4. Is the suit property partible between the plaintiff and defendant No.1 equally? 5. Is the defendant No.1 in exclusive right over item No.2 of suit property? 6. To what relief the plaintiff is entitled ?” 7. Issue No.3 being the most important issue was taken up for consideration at the outset. The oral and documentary evidence adduced by the parties was examined in detail by the trial court. It was held that the burden of proof of adoption is on the person who claims it. As such, the evidence adduced by Defendant No.1 was scrutinized carefully but the trial court did not accept the Page 4 of 12 same as having satisfactorily proved the plea of adoption. It was thus, held that the Plaintiff was not the adopted son of Savitramma. The main issue being answered as such, the remaining issues were answered in favour of the Plaintiff and the suit was preliminarily decreed by allotting half share of the schedule properties to both the Plaintiff and Defendant No.1. 8. Being aggrieved, the Defendant No.1 carried the matter in appeal. It was contended that the trial court had not correctly appreciated the oral and documentary evidence on record. The 1st Appellate Court, being the last court of fact scanned the evidence independently. However, it was not convinced as regards the validity of the grounds raised to challenge the finding of the trial court. The appeal was thus dismissed. 9. Being further aggrieved, the Defendant No.1 has preferred this second appeal, which has been admitted on the following substantial question of law:- “Whether non consideration of the contents of Ext.A and Ext.B (which is the oriya translated copy of Ext. A) wherein the plaintiff has Page 5 of 12 bequeathed the property of Sabitramma, is a material irregularity committed by the court below?”
Legal Reasoning
10. Heard Mr. A.A. Mishra, learned counsel for the Defendant No.1-Appellant and Mr. H.M. Dhal, learned counsel for the Plaintiff -Respondent. 11. Mr. Mishra would argue that both the Courts below have misread the evidence on record which clearly proved the factum of adoption of the Plaintiff by Savitramma. Enough evidence was adduced with regard to the adoption ceremony but the Courts below discarded the same on technicalities. Moreover, Defendant No.1 adduced evidence regarding the two-fold object of adoption, i.e., to secure spiritual benefit to the adoptor for offering libations to the soul of the adoptor and his ancestors and secondly, for the secular purpose of securing an heir to perpetuate the adoptor’s name. Mr. Mishra further argues that the evidence clearly showed that the Plaintiff lived with Savitramma during her lifetime and also owned her property. That apart, the fact of adoption is clearly Page 6 of 12 mentioned in the deed of gift executed by Savitramma, which both the Courts below did not consider. 12. Per contra, Mr. H. M. Dhal would argue that the appeal being filed against concurrent findings of fact and the Appellant not having shown any blatant illegality or infirmity in the judgments of the Courts below, this Court should be slow to interfere therewith. On merits, Mr. Dhal would argue that the Defendant No.1 failed to discharge the burden of proving the adoption as claimed by him to the satisfaction of both the Courts below. The oral evidence adduced was also rightly not relied upon in view of the inherent contradictions present therein. 13. Before adverting to the merits of the rival contentions, this Court would like to keep in perspective the settled position of law that ordinarilythe second Appellate Court would not disturb concurrent findings of facts unless it is demonstrated that such findings are perverse or are against the weight of evidence on record etc. Reference in this regard may be had to the oft-quoted judgment of the Supreme Court in the case of Boodireddy Chandraiah and Others vs. Arigela Laxmi and Page 7 of 12 Another, (2007) 8 SCC 155, wherein it was held as follows:- “12 xx xx xx xx xx xx (iii). The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below ignored material evidence or acted on no have evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ’decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” The contentions advanced by the parties now need to be tested in the backdrop of the settled position of law. 14. According to Defendant No.1, Plaintiff was adopted by Savitramma, who is the sister of his father, somewhere in 1964 on the Kotha Amavasya day. The oral evidence adduced by Defendant No.1 in this regard is in the form of DW-1 and DW-2, who are neighbours, and DW-3, who is Defendant No.1 himself. Reading of the evidence of these witnesses does not persuade this Court to arrive at the definite conclusion that the Plaintiff was taken in adoption by Savitramma. This Court is willing to accept Page 8 of 12 the contention that the contradictions pointed out by the Plaintiff in the evidence of D.Ws-1, 2 and 3, may not be treated as fatal but then the same would have been accepted provided there was some other definite proof of adoption such as, a written document or such like evidence. There is no such evidence on record. In such factual scenario, the shortcomings in the evidence of these witnesses cannot be brushed aside lightly. This is for all the more reason that 10 years after the so-called adoption, Savitramma herself executed a deed of gift in favor of the Plaintiff, which was admitted into evidence as Exhibit-A. Defendant No.1 strongly contends that in the said document Savitramma clearly acknowledged the fact that the Plaintiff is her adopted son. Be it noted that Exhibit-A is originally in Telugu language but its translation in English and Odia were submitted before the Court below. After examining the said document, both the Courts below have held that the said document does not contain any such acknowledgment of adoption as claimed. In order to make an independent assessment, this Court also perused the translated copies of Exhibit-A available Page 9 of 12 in the LCR. Significantly, the Plaintiff - B. Ganapati Rao is described as a minor represented by his father B. Madhav Rao. If the Plaintiff was given in adoption in 1964, it does not stand to reason as to why the name of his natural father would be mentioned in the Deed. That apart, in Clause-2 of the Deed, it is only stated that Savitramma had brought up the Plaintiff since childhood “like my son under care”. Obviously, this is not akin to describing the person as an adopted son. It would have clearly mentioned that the Plaintiff had been adopted by her. 15. Mr.Mishra, learned counsel for the Appellant has tried to make much of the expression ‘palitaputra’ occurring in the Odia version of Exhibit-A but then this Court is not impressed with such argument for the reason that the word ‘palita’ refers to one who has been reared whereas the synonym of ‘adopted’ in Odia is ‘poshya’. Obviously ‘Palita’ is not the same as ‘Poshya’. Therefore, Exhibit–A cannot in any manner be treated as an acknowledgement of the factum of adoption of the Plaintiff by Savitramma. Such being the finding, the discrepancies Page 10 of 12 in the oral evidence adduced by Defendant No.1 assume great significance. 16. Mr. Mishra would further argue that there being evidence to show that the Plaintiff was residing with Savitramma and had also performed her obsequies after her death is a strong circumstance in support of the plea of adoption. This Court is not inclined to accept such argument for the reason that adoption cannot be proved by presumption alone. Heavy burden is cast upon the party who claims adoption. The fact that Savitramma was unmarried and had taken special likeness for the Plaintiff, whom she supposedly reared as her own child cannot ipso facto lead to the irresistible conclusion that she had adopted the Plaintiff. At best, such evidence would support the deed of gift but not adoption. It is common knowledge that close relations are often called upon or come forward to perform obsequies of persons who die issueless. So, only because the Plaintiff performed the last rites of Savitramma, the same cannot persuade this Court to presume that he had been adopted by her. Page 11 of 12 17. Thus, this Court does not find any illegality or infirmity in the judgments passed by the Courts below so as to be persuaded to interfere therewith. On the contrary, in view of what has been discussed hereinbefore, this Court is inclined to fully concur with the findings so arrived at. 18. In the result, the appeal fails and is therefore, dismissed. In the circumstances, there shall be no order as to costs. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 27-Aug-2024 18:59:29 Page 12 of 12