Civil Suit No. 83 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.253 of 2008 Surendra Patel Appellant Mr. R.K. Mohanty, Senior Advocate …. -Versus- Bharat Patel & Another Respondents Mr. Bhaskar Chandra Panda, Advocate …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:18.12.2023 1. Instant appeal under Section 100 of the Civil Procedure Code, 1908 is filed by the appellant challenging the impugned judgment dated 6th May, 2008 promulgated in RFA No.13 of 2007 by the learned Additional District Judge, Jharsuguda, whereby, the decision in Civil Suit No.83 of 2005 of learned Chief Judicial Magistrate-cum-Civil Judge (Senior Division), Jharsuguda was
Legal Reasoning
confirmed for having decreed the suit declaring the right, title and interest in favour of the plaintiff over Schedule ‘A’ property and that defendant No.1 not to be adopted son of the plaintiff on the grounds inter alia that the same is not tenable in law and hence, liable to be set aside in the interest of justice. 2. The deceased respondent No.1 as plaintiff instituted the suit against the appellant and respondent No.2 seeking declaration of title over Schedule ‘A’ land and challenging the adoption of the appellant so alleged. The respondent No.1 as well as respondent No.2 contested the suit denying the contention of the plaintiff pleading in support of the alleged adoption. Considering the rival claims of the parties, learned Chief Judicial Magistrate-cum-Civil Judge (Senior Division), Jharsuguda framed as many as seven RSA No.253 of 2008 Page 1 of 5 Surendra Patel Vrs. Bharat Patel & Another issues which included the legality of the Gift deed dated 27th June, 1989 executed in favour of respondent Nos.1 and 2. On consideration of evidence adduced by both sides, learned Trial court decreed the suit on contest and declared title of the plaintiff over Schedule ‘A’ land and also held that the appellant is not adopted son of deceased respondent No.1. Being aggrieved of, the defendants challenged the aforesaid decision in RFA No.13 of 2007 which as stated before was dismissed confirming the decree and judgment in the suit. Hence, the second appeal. 3. This Court by order dated 7th January, 2011 taking into account, the pleadings on record and findings of the learned courts below formulated the following substantial questions of law, such as: (i) Whether the plaintiff’s suit is barred by law of limitation under Article 57 of the Limitation Act for the reasons stated? (ii) Whether the plaintiff is otherwise not entitled to inherit the suit property which admittedly belonged to Bhurli Patel as his son-in-law in view of Sections 8 and 15 of the Hindu Succession Act? (iii) Whether the learned courts below erred in law in annulling the Gift deed dated 27.6.1989 (Ext.A) for the assigned?
Legal Reasoning
4. Heard Mr. Mohanty, learned Senior Advocate appearing for the appellant and Mr. Panda, learned counsel for the respondents. 5. As stated before, respondent No.1 instituted the suit and denied the status of the appellant as his adoption son. The respondent No.2 is the natural father of the appellant. It was pleaded that there was adoption when the appellant was of tender age. In fact, respondent No.1 denied any such adoption of the appellant by him. Admittedly, the deceased respondent No.1 RSA No.253 of 2008 Page 2 of 5 Surendra Patel Vrs. Bharat Patel & Another and respondent No.2 are half-brothers. The respondent No.1 claimed declaration of title over Schedule ‘A’ land which was also decreed. The adoption of the appellant has also been disbelieved by both the learned courts below. In so far as, the Gift deed dated 27th June, 1989 is concerned alleged to have been executed in favour of the plaintiff and defendant No.1 could not be proved in the manner, it is statutorily mandated and hence, the same was also disbelieved and rejected by the learned Trial court confirmed in appeal. The foremost question is, whether, the appellant was adopted by deceased respondent No.1 who stands deleted by the Court’s order dated 27th June, 2022. 6. It is contended from the side of appellant that the learned courts below could not have held against adoption, since it was supported by evidence on record. It has been pleaded that the adoption was performed when the appellant was five years old and in support of status of respondent No.2, the defendants proved Exts.A, C & F with such other evidence adduced, however, the same was not held to be sufficient since the adoption by giving and taking over was not established. 7. The law is well settled that a person who pleads adoption is required to prove giving and taking ceremony and duttahoma and the same cannot be conclusively held with reference to settlement records. That apart, in support of such adoption, unless it is an ancient one, the same is to be proved by necessary evidence. In Shyam Sundar Mishra Vrs. Sribatcha Mishra and others 1994 (2002) CLT 188, the above view has been expressed. The necessary ingredients to prove adoption has also been discussed in Prahalad Charan Swain Vrs. Suka Dei and others 69 (1990) CLT 388. In other words, unless cogent and credible evidence brought on record in support of adoption with the proof of giving and taking ceremony held, proof of its cannot be RSA No.253 of 2008 Page 3 of 5 Surendra Patel Vrs. Bharat Patel & Another accepted considering the settlement records or such other contemporaneous documents which has been held so in the decisions (supra). 8. Considering the evidence on record, the adoption with any such ceremony held is not established. None of the relations of the parties having any such knowledge about adoption or other witnesses being neighbours stood examined from the side of the appellant or respondent No.2. Rather, mutation RoR i.e. Ext.B, school leaving certificate of the appellant i.e. Ext.F and the alleged Gift deed i.e. Ext.A sought to be relied upon and referred to in support of adoption. The above documents, in the considered view of the Court, could not have been accepted by learned courts below as none could be accepted to prove the factum of adoption conclusively. In course of cross-examination, respondent No.1 admitted that the appellant was staying with him. Even the Transfer Certificate along with other documents described above could not have been considered by the learned Trial court to reach at a conclusion that the appellant is the adopted son of respondent No.1. It is to reiterate that adoption with the ceremony held, unless it is too old, shall have to be proved by evidence. Such burden of proof must have to be discharged with the evidence on record in support of adoption and the same cannot be dispensed with or substituted. In fact, the evidence of appellant did not inspire confidence of the learned courts below regarding adoption of the appellant and in absence of evidence on giving and taking, it was difficult on the part of learned Trial court to hold that there was a valid adoption merely accepting Exts.A, B, E & F. 9. In so far as, the Gift deed marked as Ext.A is concerned, it was executed in favour of the appellant and respondent No.1. In fact, Ext.A has not been proved through one of the attesting witnesses RSA No.253 of 2008 Page 4 of 5 Surendra Patel Vrs. Bharat Patel & Another in terms of Sections 67 & 68 of the Indian Evidence Act. Apart from absence of other evidence in support of Ext.A and its execution and since the donor was an old and illiterate lady, both the learned courts below entertained doubt over its genuineness. It has been held by learned Trial court that due to suspicious circumstances under which Ext.A was executed at a time when the donor was 80 years old and taking cognizance of the surrounding facts, such transaction could not be established with examination of an attesting witnesses as it is mandatorily required in view of Sections 67 & 68 of the Indian Evidence Act. In view of the fact that the donor died in 1956 succeeded by his wife and daughter and respondent No.1 being the husband of latter and as the Gift deed i.e. Ext.A could not be proved in the manner statutorily necessary, learned Trial court declared the title against respondent No.2 and exclusive in favour of respondent No.1, he being the successor to it in view of Sections 8 & 15 of the Hindu Succession Act. Having regard to the pleading of the parties and evidence adduced and considering the same, the Court is of the view that learned Lower Appellate Court did not commit any error or illegality in upholding the decision in the suit, which, therefore, does not call for any interference. Accordingly, the substantial questions of law stand answered. 10. Hence, it is ordered. 11. In the result, the appeal is hereby dismissed, however, in the circumstances, without any order as to the costs. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 22-Dec-2023 18:06:56 TUDU RSA No.253 of 2008 Page 5 of 5