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Srikanta Naik And Another vs Kokila Bewa .Since Dead. Through … on 18 December, 2017

HIGH COURT OF ORISSA: CUTTACK

S.A. No.189 of 1989

From the judgment and decree dated 6.2.89 and 1.3.89 respectively
passed by Shri K.V.C. Rao, learned Subordinate Judge,
Jagatsinghpur in T.A. No.20 of 1980 reversing the judgment and
decree dated 30.8.1980 and 20.9.1980 respectively passed by Sri
A.C. Pattnaik, learned Munsif, Jagatsinghpur in T.S. No.117 of 1979.

———-
Srikanta Naik and another ………………. Appellants

—versus–
Kokila Bewa (since dead)
through L.Rs. ……………….. Respondents

For Appellants : Mr. N.K. Sahoo, Advocate
For Respondents : None

JUDGMENT

P R E S E N T:

THE HON’BLE DR. JUSTICE A.K. RATH

———————————————————————————–
Date of Hearing : 30.11.2017 │ Date of Judgment: 18.12.2017

———————————————————————————–
Dr. A.K. Rath, J. Defendants are the appellants against a reversing
judgment.

2. Plaintiffs-respondents instituted the suit for declaration
that defendant no.1 is not the adopted son of Krushna Nayak, father
of the plaintiffs and he is not the owner in possession of the suit
property left by Krushna Nayak. The case of the plaintiffs is that
they are the daughters of late Krushna Nayak. The defendant no.1 is
the natural son of defendant no.2. Their father had no son. He got
the plaintiff no.1 married to one Dhadi Mohanty. Dhadi Mohanty is
residing as illatom son-in-law. After death of their father, the
plaintiffs became the owner of the properties left by their father.

2

The defendant no.2 is an agnatic nephew of their father. He
snatched away one adoption-cum-gift deed on 21.7.66 from their
father. Their father was not aware of the document. During the
consolidation operation, they came to know about the alleged
adoption-cum-gift deed. With this factual scenario, they instituted
the suit seeking the reliefs mentioned supra.

3. The defendant entered contest and filed a written
statement denying the assertions made in the plaint. The case of
the defendants was that Krushna Nayak had adopted defendant
no.1 on 29.9.64. There was giving and taking ceremony. He
executed an adoption-cum-gift deed in favour of defendant no.1. He
had also executed documents in favour of plaintiffs on the same
day.

4. On the interse pleading of the parties, learned trial court
struck eight issues. Parties led evidence. Learned trial court came to
hold that defendant no.1 was validly adopted by Krushna Nayak.
Held so, it dismissed the suit. Assailing the judgment and decree of
the learned trial court, the plaintiffs filed T.A. No.20 of 1980 before
the learned Subordinate Judge, Jagatsinghpur. Learned appellate
court held that defendant no.1 is not the adopted son of Krushna
Nayak. Held so, it allowed the appeal.

5. The second appeal was admitted on the substantial
questions of law enumerated in ground nos.A, B, C and D of the
memorandum of appeal. The same are:

“A. Whether the learned lower appellate court
committed a serious error of law in holding that
since the natural father of defendant no.1
(defendant no.2) had not executed the adoption
deed (Ext.C) and therefore, presumption U/s.16
of Hindu Adoption and Maintenance Act could not
be drawn, the learned trial court committed a
3

serious error in giving due weight to Ext.C as
supporting the defence story of adoption of
defendant no.1 by late Krushna Naik.

B. Whether the learned lower appellate court
committed a serious error of law in reversing the
finding of the learned trial court that plaintiff no.1
and 2 had appended L.T.I. and signature
respectively to the adoption deed (Ext.C) stating
the fact that they had consent for the execution of
the adoption cum gift deed proving that both of
them were aware of the contents of the
documents without referring to the aforesaid
reasoning of the trial court to kolo that Ext.C is
not a genuine document.

C. Whether the learned lower appellate court
committed a serious error of law in reversing the
finding of the learned trial court to the effect that
Krushna Naik having executed Ext.A and B in
favour of plaintiffs 1 and 2 respectively gifting
same of his property to them on the very same
day i.e. 21.7.1966 (Ext.C) in which he executed
the adoption-cum-gift deed (Ext.C) in favour of
defendant no.1 scribed by the very same scribe
their favour the execution of Ext.A and B which
has not been the plaintiffs Krushna Naik must be
taken to have executed Ext.C after fully
understanding the proper and contents thereof as
he had admittedly done in support of Ext.A and B.
D. Whether the learned lower appellate court
committed a serious error of law in holding that
the suit is not barred by limitation on the ground
that the plaintiffs had no knowledge of Ext.C till
7.8.1979 completely ignoring the fact as has been
found by the learned trial court that both plaintiff
no.1 and 2 had appended their L.T.I. and
signature respectively stating the fact that they
had consent for the execution of adoption cum
gift deed (Ext.C) showing that they were aware of
the execution thereof on 21.7.1966 (The date of
execution of Ext.C) and that therefore the suit
having been filed 1079 was hopelessly barred by
limitation ?”

4

6. Heard Mr. N.K. Sahoo, learned counsel for the
appellants. None appeared for the respondents.

7. Mr. Sahoo, learned counsel for the appellants submitted
that the natural father had not put his signature in the adoption-
cum-gift deed, Ext.C. Therefore, no presumption under Sec.16 of
the Hindu Adoptions and Maintenance Act, 1956 (hereinafter
referred to as “the Act”) shall be drawn that the adoption has been
made in compliance with the provisions of the Act. But then, Ext.C
can be used as a piece of evidence in support of the defence story of
adoption, if the adoption is proved otherwise. There is ample
evidence on record that the defendant no.1 is the adopted son of
Krushna Nayak. He further contended that Krushna Nayak on
21.7.1966 had executed three deeds, Ext.A, B and C. He had
executed deeds vide Exts.A and B in favour of the plaintiffs. Since
he had no son, he executed Ext.C. Plaintiff no.1 had given her L.T.I.
and plaintiff no.2 had signed on the said deed. The deed had been
validly acted upon during the life time of the donee. Ext.C was
executed with the consent of the plaintiffs. Learned trial court, on a
threadbare analysis of evidence on record and pleadings, held that
defendant no.1 is the adopted son of Krushna Nayak. On untenable
and unsupportable ground, learned appellate court upset the same.
He further contended that the plaintiffs were aware of the execution
of the deed on 21.7.1966. The suit was filed in the year 1979 and as
such barred by limitation.

8. Ext.C has been styled as deed of acknowledgement of
adoption. The day and date of adoption has not been mentioned in
Ext.C. The defendant no.1 is the only son of defendant no.2. Neither
the scribe of the document nor the attesting witnesses has been
examined. Radhu Nayak, the natural father of the defendant no.1,
had not signed on the deed.

5

9. The deed of acknowledgement of adoption is not
sufficient of the factum of giving and taking. The fact of giving and
taking must be proved. In Krushna Chandra Sahu and another vs.
Pradipta Das and others, 53 (1982) CLT 335, this Court held that a
document acknowledging adoption or containing recitals regarding
giving and taking of adoption are not sufficient themselves to
constitute legal adoption in the absence of evidence about actual
giving and taking of the child.

10. This Court in Bauri Dei and others vs. Dasarathi Sahu
and others, 1974 (I) C.W.R. 403 held that the omission of the day
and date of adoption in such a document is very vital and the deed
of acknowledgement of adoption therefore looses all its significance.

11. In Arakhita Swain vs. Kandhuni Swain, AIR 1983
Ori.199, this Court held that where the registered deed recording an
adoption was not signed by the person giving the child in adoption,
the presumption under Sec.16 as to there being an adoption in
compliance with the provisions of the Act could not be raised as one
of the essential condition was wanting.

12. The apex Court in the case of A. Raghavamma and
another vs. A. Chenchamma and another, AIR 1964 SC 136
observed that young age of adoptive parents, and prospect of
having children, has to be noted. In the absence of special
circumstances the only son being taken on adoption appears to be
somewhat unusal and improbable.

13. Learned appellate court has rightly held that the
defendants failed to prove that the defendant no.1 is the adopted
son of Krushna Nayak.

14. The next question crops up as to whether disposition of
properties to the defendant no.1 is as a person designata or by
6

reason of his fulfilling particular legal status, e.g., the adopted son
of the donor ?

15. The Constitution Bench of the apex Court in the case of
Yelamanchili Siva Panchaksharamma vs. Yelamanchili Chinnabbayi
(deceased) thereafter Yelamanchili Basavamma, AIR 1967 SC 207
quoted with approval with the decision of the Privy Council in the
case of Fanindra Deb Raikat vs. Rajeswar Dass, (1882) 12 Ind App
72 (PC), where it was held:

“The distinction between what is description only
and what is the reason or motive of a gift or
bequest may often be very fine, but it is a
distinction which must be drawn from a
consideration of the language and the surrounding
circumstances.”

16. Taking a cue from Yelamanchili Siva Panchaksharamma
(supra), this Court in the case of Raghunath Behera vs. Balaram
Behera and another, 1995 (II) OLR-135 held that where a gift or
bequest is made to a parson who is described as an adopted son,
but such person is not adopted at all or if he was adopted, his
adoption is held to be invalid, validity of the gift or bequest depends
on the intention of the donor or testator to be gathered from the
language of the deed of gift or Will and from the surrounding
circumstances. If the intention is to be benefit the donee as persona
designata (that is a designated person), the addition of his supposed
relationship is merely a matter of description and the gift prevails
though description is incorrect. But if the assumed fact of adoption
is “the reasons and motive of gift and a condition of it” then the gift
cannot take effect if the adoption is pronounced invalid.

17. On a cursory perusal of Ext.C, it is evident that the gift
was made not an account of adoption. Gift was made to a person
designata. Even if the adoption has been pronounced not proved,
7

the gift cannot fail. Gift deed has been acted upon. The same is a
valid deed of gift.

18. The matter may be examined from another angel. There
is no prayer in the suit to set aside Ext.C. In State of Kerala vs. M.K.
Kunhikannan Nambiar, AIR 1996 S.C. 906, the apex Court held that
even a void order or decision rendered between parties cannot be
said to be non-existent in all cases and in all situations. Ordinarily,
such an order will, in fact be effective inter parties until it is
successfully avoided or challenged in higher forum. Mere use of the
word “void” is not determinative of its legal impact. The word “void”
has a relative rather than an absolute meaning. It only conveys the
idea that the order is invalid or illegal. It can be avoided. There are
degrees of invalidity, depending upon the gravity of the infirmity, as
to whether it is, fundamental or otherwise. The apex Court went in
depth into the jurisprudential concept of ‘void’ and ‘voidable’ and
held thus :

“7. In Halsbury’s Laws of England, 4th edition,
(Reissue) Volume 1(1) in paragraph 26, page 31, it
is stated, thus:-

“If an act or decision, or an order or
other instrument is invalid, it should, in
principle, be null and void for all
purposes; and it has been said that
there are no degrees of nullity. Even
though such an act is wrong and lacking
in jurisdiction, however, it subsists and
remains fully effective unless and until it
is set aside by a court of competent
jurisdiction. Until its validity is
challenged, its legality is preserved.”

The substantial questions of law are answered
accordingly.

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19. A priori, the judgment of the learned appellate court is
set aside. The appeal is allowed. Consequently, the suit is
dismissed. No costs.

……………………………….
Dr. A.K. Rath,J.

Orissa High Court, Cuttack
The 18th December,2017/Basanta

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