Civil Suit No. 103 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.218 OF 2023 & R.S.A. NO.219 OF 2023 In the matter of Appeals under Section-100 of the Code of Civil Procedure, 1908 has assailed the judgments and decrees passed by the learned 3rd Additional District Judge, Berhampur, in RFA No 16 of 2016 and RFA No.20 of 2016 respectively setting aside the judgment and decree dated 03.02.2016 and 19.02.2016 respectively passed by the learned Civil Judge (Senior Division), Berhampur in Civil Suit No.103 of 2012. Abanti Panda (In both the RSAs) ---- -versus- :::: Appellant Bansidhar Panda & Others (In both the RSAs) :::: Respondents (Appeared in this case by Video Conferencing Mode) For Appellant - M/s. Gajendranath Rout, Advocate. (In both the RSAs) For Respondents - Mr. S.K. Pradhan, (Advocate in both the RSAs) CORAM: MR. JUSTICE D.DASH DATE OF HEARING: 22.09.2023 : DATE OF JUDGMENT: 29.09.2023 In the above two captioned Appeals, under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’), the Appellant has assailed the judgments and decrees passed by the learned 3rd Additional District Judge, Berhampur, in RFA No 16 Page 1 of 14 // 2 // of 2016 and RFA No.20 of 2016 respectively by setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Berhampur in Civil Suit No.103 of 2012 and thereby,
Legal Reasoning
dismissing the suit filed by this Appellant as the Plaintiff arraigning the Respondents as the Defendants. The Appellant as the Plaintiff has filed a suit seeking a preliminary decree in her favour for partition of the property described in Schedule-A and B of the plaint. The Trial Court decreed the suit in part by passing preliminary decree for partition of Schedule-A property allotting 1/2 share each to the Appellant (Plaintiff) and Respondent No.2 (Defendant No.2) over the property under item nos.5 and 6 of the Schedule-A of the plaint and the property under item no.4 of Schedule-A after exclusion of the property sold vide Ext.8 & 9 with the adjusted of the same towards the share of Respondent No.2 (Defendant No.2). The Respondent No.2 (Defendant No.2) feeling aggrieved and dissatisfied by the said judgment and decree passed by the Trial Court carried an Appeal under Section-96 of the Code which stood numbered as RFA No.16 of 2016. The Appellant (Plaintiff) also called in question the judgment and preliminary decree passed by the Trial Court in the said suit in refusing to grant all the reliefs as prayed for by carrying an Appeal under section-96 of the Code, which stood numbered as RFA No.20 of 2016. Page 2 of 14 // 3 // The First Appellate Court has allowed the Appeal filed by the Respondent No.2 (Defendant No.2) and has dismissed the Appeal filed by the Appellant (Plaintiff) by passing two separate judgments on the same day. Be that as it may, the subject matter remains the same and both these Appeals had arisen from the judgment and preliminary decree passed in one and the same suit; one being filed by the Appellant (Plaintiff) and another by the Respondent No.2(Defendant No.2). In view of the above state of affairs, learned Counsel for the parties agreed on the point that both the Appeals heard together for their disposal by common judgment and when that has been also done at the time of hearing on admission and the Appeals have been admitted by framing one substantial question of law for being answered in both Appeals. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s case is that, she and her brother, the Respondent No.2(Defendant No.2) are the natural born children of Satyasen and Padmavati. The Defendant No.1 is the brother of Padmavati. On 22.05.1984, the Defendant No.1 and his wife Satyabhama took the Plaintiff and Defendant No.2 on adoption as their adopted daughter and son respectively. The giving and taking ceremony for the said adoptions took place in the house Page 3 of 14 // 4 // of Satyasen, the natural father of the Plaintiff and Defendant No.2. It is stated that from that time onwards, the Plaintiff was recognized in the society as the daughter of Defendant No.1. The joint family of the Defendant No.1 had 300 bharans of land in four villages as they had three different houses in village Podamari. The ancestors of Defendant No.1 donated the land
Legal Reasoning
and house situated at village, Podamari for the seva puja of Shri Chaitanya Mahaprabhu. It is stated that the properties described in item nos. 1 to 8 of Schedule –A are the joint family property of Defendant No.1. It is further stated that Satyabhama had left the gold ornaments as described in Schedule-B of the plaint, which are the family movables. Satyabhama died in the year 1995. The Defendant Nos. 1 and 2 had sold property measuring Ac.0.664 decimals of land from out of property described in item no.4 of Schedule-A to Defendant No.3 by registered sale-deed dated 23.03.2012. They also sold land measuring Ac.3.695 decimals from out of the property described in item no.4 at Schedule-A to the Defendant No.4. Although with with the sale proceeds of the above transactions, the Defendant Nos. 1 & 2 purchased property in item nos.9 and 10, that was purchased in the name of Defendant No.2. The Plaintiff thus sought for a preliminary decree for partition of the properties in Schedule-A and B of the plaint allotting the legitimate share in her favour. Page 4 of 14 // 5 // 4. The Defendant Nos. 1 & 2 in their written statement while traversing the plaint averment denied the fact that the Plaintiff is the adopted daughter of Defendant No.1. It is stated that the Plaintiff never stayed with Defendant No.1 and his wife as their daughter nor that she had been given the education by them nor her marriage was performed by the Defendant No.1 and his wife. It is stated that Plaintiff was never a member of their joint family and not being a coparcener has no right over the property of the family of Defendant Nos.1 & 2. It is stated that the Plaintiff has no concern with the family of Defendant No.1. It is stated that since the Plaintiff is the sister’s daughter of Defendant No.1, she was visiting their house and staying there for some time. The Defendant No.1 had never admitted the Plaintiff in any educational institution as his adoptive daughter nor has so declared in any place. The Plaintiff being the niece of Defendant No.1, she is being addressed like that everywhere. It has also been stated that the Plaintiff being a relation and being in good terms, the Defendant No.1 had bequeathed some land in her favour under a Will executed on 30.08.1999. But when she ill-behaved Defendant No.1, the Plaintiff thereafter stopped coming to his house and taking his care. So Will was cancelled on 07.01.2012. It is thus stated that the Plaintiff knowing about said cancellation of the Will has filed this suit with frivolous allegation. The Defendant No.1 has executed a deed of acknowledgement of adoption declaring the Page 5 of 14 // 6 // Defendant No.2 to have been adopted by him and his wife and thus, it is stated that he has the right over the property of the family of Defendant No.1, who is satisfied with the care and attention of Defendant No.2 towards him. 5. It be stated that Defendant No.1 having died during the pendency of the suit, his name has been expunged as dead. 6. The Defendant Nos. 3 and 4 supported the version of Defendant Nos. 1 and 2 as projected in their written statement. 7. The Trial Court on the rival pleadings framed as many as five issues. Upon examination of evidence and their evaluation, the crucial issue as to the status of the Plaintiff as the adopted daughter of Defendant No.1 as she claims was answered in favour of the Plaintiff. Thereafter, the other issues as to the nature of property described in item no.9 and 10 and the legitimate share of the Plaintiff have been decided together. The Trial Court has answered issue no.2 in favour of the Plaintiff by holding her to be the adopted daughter of Defendant No.1. The finding of the Trial Court on the other two issues has resulted in the exclusion of the property sold under Exts. 8 and 9 from the purview of partition by their adjustment towards the share of Defendant No.2. Finally, concluding that the property described in item nos.8 and 9 of the Schedule A property are the self- Page 6 of 14 // 7 // acquired property of Defendant No.2 are not liable for partition, the suit was preliminary decreed as aforesaid. 8. The First Appeal filed by the Plaintiff has been dismissed and the one filed by the Defendant No.2 has been allowed. Thus, finally the plaintiff has been non-suited. Therefore, the Plaintiff has preferred two Appeals against two judgments and decrees passed in two First Appeals; one filed by her and the other one filed by the Defendant No.2. 9. Both these Appeals have been admitted to answer on the following substantial question of law:- is right “Whether the First Appellate Court in upsetting the finding of the Trial Court that the Plaintiff and Defendant No.2 are the adopted daughter and son of Defendant No.1 being so given by their natural parents and taken on adoption on same day by the original Defendant No.1 and his wife? 10. Learned Counsel for the Appellant (Plaintiff) submitted that the First Appellate Court without any such compelling reason or justification has upset the finding of the Trial Court that the Plaintiff and Defendant No.2 are the adopted daughter and son of Defendant No.1, which had been rendered by the Trial Court upon sound appreciation of the evidence on record. He further submitted that in view of the voluminous documentary evidence such as the educational certificates, affidavit of Defendant No.1 and several such sale-deeds as well Page 7 of 14 // 8 // as other oral evidence showing conduct of the parties, their relationship and dealing etc, the First Appellate Court erred in law returning the finding against the status of the Plaintiff as claimed to be the adoptive daughter of the Defendant No.1. He further submitted that it being there in the evidence that the surname of the Plaintiff has been changed to her father’s name in the school record standing in support of the claim and then the Will executed by Defendant no.1 bequeathing the property in favour of the Plaintiff, the First Appellate Court ought not to have tinkered with the finding of the Trial Court as regards the status of the Plaintiff. He, therefore, urged admission of this Appeal to answer the above as the substantial questions of law. 11. Learned Counsel for the Respondent on the other hand supported the finding on the status of the Plaintiff as has been returned by the First Appellate Court. According to him, there is absolutely no evidence as regards giving and taking ceremony of the claimed adoption of the Plaintiff. He submitted that in the absence of satisfactory proof as to the giving and taking ceremony, no such finding in favour of the status of the Plaintiff as she has claimed could have been given on the basis of some educational certificate etc, which have been proved from the side of the Plaintiff as those are merely supportive evidence, but cannot form the basis of a finding of adoption. He further submitted that the Plaintiff’s claim of adoption by the Defendant Page 8 of 14 // 9 // No.1 has been denied by Defendant No.1 in his written statement and the evidence let in by the Plaintiff is not at all satisfactory to hold that the heavy burden of proof lying on her stood discharged thereby. He, therefore, submitted that the grave error committed by the Trial Court by not taking into account the settled principle of law while appreciating the evidence on record that it was the Plaintiff on whom heavy burden of proof was lying to prove such facts in support of her adoption, the First Appellate Court has rightly rectified the same placing the very case of the Plaintiff and her own evidence as well as the evidence of other witnesses examined on her behalf. He submitted that those are wholly insufficient to establish a case of adoption of the Plaintiff by Defendant No.1 as has been projected and the First Appellate Court is right in ruling against the said status. 12. Keeping in view the submissions made, I have read the judgments passed by the Courts below. I have also gone through the plaint and written statements. The evidence both oral and documentary have also been perused. 13. It is the settled position of law that where the adoption is claimed by a party and denied by the adversary, the burden to establish the case of adoption heavily lies upon the person who propound the adoption. It is also settled position of law with that only when it is shown through evidence that adoption is an Page 9 of 14 // 10 // ancient one and no direct evidence is available to prove the factum of performance of giving and taking ceremony which is must in case of adoption, there can arise certain relaxation in on that score in arriving at a finding as to the adoption by looking at the other evidence as to the relationship, conduct, dealings between the parties and properties etc. The proof of ceremonial adoption is however essential if the adoption is not shown to be an ancient one which is also not simply to be just looking at the distance of time from that adoption but finding that no such direct evidence to prove the performance of ceremony is available and thus not possible to be tendred. 14. The Trial Court has said that the present case is not a case of ancient adoption. However, a finding has been given as under:- “On consideration of available evidence, on the plea that the Plaintiff has succeeded in establishing the giving and taking ceremony in her adoption by Defendant No.1 and his wife. Besides the subsequent conduct of Defendant No.1 performing Kanyadan of the Plaintiff, summing to be documents like Ext.3, 5 and 7, the admission of his closed relative like D.W.3, all clearly established the fact of adoption of the Plaintiff by the Defendant No.1” 15. The First Appellate Court on reappraisal of evidence has concluded as under:- “Hence considering the above facts and circumstances it cannot be said that the valid adoption had taken Page 10 of 14 // 11 // place with respect to the Plaintiff by Niranjan Panda, the entries in the School records and affidavit by the Niranjan Panda is not sufficient establish in such adoption which appears to be made only for the purpose of education of the Plaintiff not to adopt her as the daughter of Niranjan Panda.” 16. In the endeavour to find out the answer to the substantial question of law by addressing the rival submissions, one such fact projected by the Plaintiff here strikes that creates suspicion in mind and in the absence of any such explanation from the side of the Plaintiff, the Trial Court appear to have turned blind eyes to it while ruling in favour of adoption. As per the case of the Plaintiff on the same day i.e. on 22.05.1984, the Plaintiff and her another brother Defendant No.2 are said to have given in adoption by their natural parents and taken in adoption by the Defendant No.1 and his wife Satyabhama. It is nowhere stated in the plaint or during evidence as to what was the special reason for the Defendant No.1 and his wife Satyabhama to adopt a son and daughter, at a time. When it has been generally stated pleaded in the plaint that there was giving and taking ceremony for the said adoption of Plaintiff as well as the Defendant No.2, nothing is stated in detail with regard to the performance of adoption ceremony for the adoption of Defendant No.1. It is not pleaded nor stated in evidence as to what was the special reason for the natural parents of the Plaintiff and Defendant No.2 that they agreed to Page 11 of 14 // 12 // give any adoption one of their daughters and another son in one go. Therefore, the very case projected by the Plaintiff that she and her brother-Defendant No.2 were given in adoption by that natural parents and taking in adoption of Defendant No.1 and Satyabhama, remains under thick cloud of suspicion. But, there is absolutely no attempt from the side of the Plaintiff to remove those clouds or even to thin the same to create the visibility by giving necessary explanation by the Plaintiff. The evidence on record has to be approached with such suspicion in mind. The certificate proved in the case by the Plaintiff and is stated to have obtained after filing of the suit and as such those are post litem documents, having hardly any legal sanctity to have any say over the controversy. 17. The Plaintiff in her evidence has admitted that on 30.08.1999, the Defendant No.1, the so called adoptive father had executed a Will in her favour. When she states that she has not filed the Will, that obviously shows that the Will in original is with her and this view is fortified from the fact that the Defendant No.2 has proved the certified copy of the said Will as Ext.B. In that very registered Will in custody of Plaintiff, she has been described as the Bhaniji (sister’s daughter-niece) by the Defendant No.1. Except one affidavit dated 22.05.1984, said to have been sworn by the Defendant no.1 mentioning the factum of adoption of the Plaintiff by him which has been admitted in Page 12 of 14 // 13 // evidence and marked as Ext.1 (with objection), no other document relating to the adoption of the Plaintiff by the Defendant No.1 has been proved. It is also not stated by the Plaintiff being examined as P.W.1 as to why such affidavit had been sworn by the Defendant No.1 so as to serve which purpose or what was the occasion. Interestingly enough, it is stated that Defendant No.1 sometime in the year, 2011 delivered Ext.1 to the Plaintiff. But then it is not stated as to why it was so delivered and while delivering the same, what the Defendant No.1 had to the Plaintiff which definitely raises the eyebrows in entertaining serious doubt as to the voluntariness of the Defendant No.1 in bringing such an affidavit to being. Even the evidence giving and taking ceremony coming from the lips of the cousin brother of Defendant No.1 appear to be highly suspicious, when he says that the giving and taking ceremony of Plaintiff and Defendant No.2 was performed on the same day in his presence and in that ceremony natural parents gave in adoption and adoptive parents took in adoption of both the children observing other formalities as provided under the Hindu law. This P.W.2 when states to have been present at the time of performance of said ceremony by justifying his presence as being a relation; during evidence he is unable to say as to if the wife of Defendant No.1 namely, Satyabhama was alive or not. Thus, it appears that with the available evidence, the grave error committed by the Trial Court in holding that the Plaintiff Page 13 of 14 // 14 // has established her status as the adoptive daughter of Defendant No.1 by proving the factum of adoption through clear, cogent and acceptable evidence, has been rightly rectified by the First Appellate Court by appreciating the evidence in a just and proper manner and in the backdrop of the settled position of law. So, keeping in view the evidence let in by the parties, in the backdrop of their rival pleading and settled law; this Court is of the view that there surfaces no such infirmity in the finding of the First Appellate Court in ruling against the status of the Plaintiff as the adopted daughter of Defendant No.1, which she claims. Accordingly, the substantial question of law finds its answer in favour of the affirmation of the said finding of the First Appellate Court. 18.
Decision
In the result, both the Appeals stand dismissed. However, there shall be no order as to cost. Judge. (D. Dash), Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 18-Oct-2023 11:02:57 Page 14 of 14