Tapadhyan Negi vs Radhika Negi And Another on 21 August, 2017

HIGH COURT OF ORISSA: CUTTACK

S.A.No.146 of 2000

From a judgment and decree dated 26.2.2000 and 29.3.2000
respectively passed by Md.Abdul Majid, learned Additional District
Judge, Sonepur in Title Appeal No.40/33 of 94-99 confirming the
judgment and decree dated 9.3.1994 and 23.3.1994 respectively
passed by learned Subordinate Judge, Sonepur in Title Suit No.22 of
1991.

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Tapadhyan Negi …. Appellant

Versus

Radhika Negi and another …. Respondents

For Appellant — Mr.Budhiram Das,
Advocate

For Respondents — None

JUDGMENT

PRESENT:

THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 10.08.2017 Date of Judgment:21.08.2017

Dr.A.K.RATH, J. Plaintiff is the appellant against an affirming judgment
in a suit for declaration that defendant no.2 is not the adopted son of
defendant no.1.

2. The case of the plaintiff is that Urmila and Radhika-
defendant no.1 are the widows of late Kanhei Negi. Kanhei died 25 to
30 years back. After death of Kanhei there was a partition between
the widows. The property was divided into two equal shares between
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them. Kanhei had no issue. His first wife, Urmila adopted the
plaintiff on 2.1.75, who was 14 years of old. Thereafter the plaintiff
has been treated as the adopted son of Kanhei in all official records.
The adoptive mother, Urmila executed a registered deed of adoption
on 3.1.75 in presence of the witnesses. It is further pleaded that
defendant no.2 is not the adopted son of defendant no.1. When
defendant no.2 asserts to possess the land of defendant no.1, the
same creates a cloud of suspicion in the mind of the plaintiff over the
title of the property. With this factual scenario, he instituted
T.S.No.22 of 1991 in the court of the learned Subordinate Judge,
Sonepur seeking the relief mentioned supra.

3. The defendants entered contest and filed a joint written
statement contending inter alia that plaintiff is not the adopted son
of Urmila. There was no giving and taking ceremony. On 2.1.75
plaintiff was 15 years of old. Thus, the adoption, if any, is null and
void. The plaintiff was never treated as the adopted son of Kanhei by
any person or in any official record. It is further pleaded that the
plaintiff has no legal interest in the property of defendant no.1 or
Urmila. He, being a stranger, has no locus standi to challenge the
status of the defendants and as such the suit is not maintainable.

4. Stemming on the pleadings of the parties, the learned
trial court struck five issues. Both the parties led evidence, oral and
documentary, to substantiate their case. The learned trial court
came to hold that adoption of the plaintiff by Urmila is in violation of
conditions laid down under Section 10 (iv) of the Hindu Adoptions
and Maintenance Act, 1956. The adoption is void. The same does not
create any right, interest or status in the adoptive family. The
plaintiff, who is stranger to the family and to the property left by
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Kanhei or succeeded by Urmila or defendant no.1, has no authority
to challenge that defendant no.2 is the adopted son of defendant
no.1. Held so, the learned trial court dismissed the suit. The plaintiff
unsuccessfully challenged the said judgment and decree before the
learned Additional District Judge, Sonepur in Title Appeal No.40/33
of 94-99, which was eventually dismissed.

5. The Second Appeal was admitted on the following
substantial questions of law enumerated in ground nos.1, 2 3 in
the appeal memo. The same are:-

“1) Whether the finding of the learned courts below
that the plaintiff’s adoption was invalid because he
was more than 15 years old at the time of alleged
adoption is sustainable in view of the
unimpeachable evidence of all the P.Ws. the aged
mentioned in the deed of acknowledgement (Ext.1)
and the cause title of the plaint coupled with
explanation given by P.W.4?

2) Whether the defendant no.1 has got any right to
challenge the adoption made by her co-widow and
if such plea is barred by law of limitation?

3) Whether the bald statement of P.W.4 in cross
examination relating to the date of birth of the
plaintiff is sufficient to discard the evidence of all
the P.Ws. and the documentary evidence adduced
by the plaintiff?”

6. Heard Mr.Budhiram Das, learned Advocate for the
appellant. None appeared for the respondents.

7. Mr.Das, learned Advocate for the appellant submitted
that Kanhei Negi had two wives, namely, Urmila and Radhika. After
death of Kanhei his first wife, Urmila took the plaintiff in adoption.
Defendant no.2 is not the adopted son of defendant no.1. At the time
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of adoption the plaintiff was 14 years old. The adoption was
acknowledged by a registered document dated 3.1.75. The deed of
acknowledgement of adoption, vide Ext.1, cause title of the plaint as
well as oral evidence of the witnesses examined by the plaintiff
clearly show that the plaintiff was 14 years of old at the time of
adoption. He further contended that the natural father of the plaintiff
was examined as P.W.4. He deposed that he had enhanced the age of
his son by two years in the school admission register so that he
would get service earlier. The learned courts below committed a
manifest illegality and impropriety in holding that the plaintiff was
more than seventeen years of old and as such the adoption is an
invalid one. When there was a cloud of suspicion on the title over the
property, he instituted the suit.

8. Assertion of the plaintiff is that he is the adopted son of
first wife Urmila. Onus is heavy on him to prove that he is the
adopted son of Urmila. Section 10 of Hindu Adoptions and
Maintenance Act, 1956 stipulates that no person shall be capable of
being taken in adoption unless the conditions enumerated in clause

(i) to (iv) are satisfied. Clause (iv) of Sec.10 provides that he or she
has not completed the age of fifteen years, unless there is a custom
or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption. D.W.2
and D.W.3 are the teachers of Sakma Primary School, where the
plaintiff studied. The school admission register had been exhibited as
Ext.A. From the same, it is evident that the plaintiff was admitted in
the school on 1.4.1963 by his natural father. Both the witnesses by
referring to the school admission register deposed that the date of
birth of the plaintiff was 20.4.57. Thus, the plaintiff was 17 years 8
months and 12 days as on 2.1.75 when adoption took place. The
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explanation given by the natural father of the plaintiff, P.W.4 was
negatived by the learned appellate court. P.W.4 stated that he had
enhanced the age of his son by two years in the school admission
register. The same is beyond pleadings. Moreover the statement of
P.W.4 appears to be incongruous. If the version of P.W.4 is believed,
then the plaintiff was born in Bhadraba 1961 i.e., in the month of
August 1961. Thus at the time of admission, he was a boy of 1 year
and 8 months only. The headmaster of the Government school could
not have admitted him in the school by enhancing the date of birth
to two or three years. If the statement of P.W.4 is believed, then the
age of the plaintiff at the time of adoption was 15 years 8 months
and 12 days. Thus, the plaintiff was more than 15 years of age as on
2.1.1975. The school admission register is admissible in evidence.
The entry in the school admission register has a presumptive value
with regard to the age and entry in the school admission register.
The description of age in the heading of deposition or cause title
cannot be considered to be authentic statement of age of the plaintiff.
The plaintiff has failed to prove that he was the adopted son of
Urmila. The plaintiff is a stranger to the family. Thus, he cannot
challenge the adoption of defendant no.2 by defendant no.1.

9. In M/s Supreme General Films Exchange Ltd. Vrs. His
Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others,
AIR 1975 SC 1810, the apex Court held that a complete stranger
whose interest is not affected by another’s legal character or who has
no interest in another’s property could not get a declaration under
Section 42 of the Specific Relief Act. The apex Court had the occasion
to interpret Section 42 of the Specific Relief Act, 1877. Section 42 of
the Specific Relief Act, 1877 is pari materia to Sec.34 of Specific
Relief Act, 1963.

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10. The irresistible conclusion is that the suit is not
maintainable. Both the courts below, on an anatomy of the pleadings
and evidence on record, negatived the plea of adoption put forth by
the plaintiff. There is no perversity or illegality in the findings of the
courts below. The substantial questions of law are answered
accordingly.

11. In the wake of aforesaid, the appeal, sans merit,
deserves dismissal. Accordingly, the same is dismissed. No costs.

………………………….

Dr.A.K.Rath, J.

Orissa High Court, Cuttack.

The 21st August, 2017/CRB
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