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Bhikari Padhi vs Abhedananda Mishra And Others on 16 March, 2018

HIGH COURT OF ORISSA: CUTTACK

SA No.33 of 1999

From the judgment and decree dated 15.10.1998 and 30.10.1998
respectively passed by Mr. B.K. Nayak, learned Additional District Judge,
Bolangir in T.A. No. 20/15 of 1991-92 confirming the judgment and
decree dated 28.01.1991 and 16.02.1991 respectively passed by Mr.
K.B. Swain, learned Sub-ordinate, Sonepur in T.S. No. 39/86.
———–

Bhikari Padhi …. Appellant

Versus

Abhedananda Mishra and others …. Respondents

For Appellant … Mr. Ramakanta Mohanty, Sr.Adv.
Mr. Tapas Kumar Mohanty, Adv.

For Respondents … None

JUDGMENT

PRESENT:

THE HONOURABLE DR. JUSTICE A.K.RATH

Date of hearing judgment: 16.03.2018

Dr. A.K.Rath, J Defendant no.1 is the appellant against a confirming
judgment.

02. The plaintiffs-respondent nos.1 to 7 instituted the suit for
partition. Case of the plaintiffs was that Kalicharan Padhi was the
common ancestor of the parties. The suit properties originally belonged
to him. Kalicharan died in June, 1958 leaving behind his widow Mathura,
widow of his pre-deceased son, Purandar and three daughters, namely,
2

Achala, Kumudini and Sandhyabali, plaintiff no.7. Achala died leaving
behind her six sons and daughters, plaintiff nos.1 to 6, and her husband,
defendant no.3. Kumudini died leaving behind her husband, defendant
no.4 and two sons, defendant nos.1 and 2. Purandar died at the age of
19 years leaving behind his widow Padmalata and parents. Padmalata
died issueless. Mathura died in July, 1984. The plaintiffs demanded for
partition of the suit properties, but the defendants maintained a stony
like silence. Defendant no.1 managed to mutate his name alone in
respect of the suit lands describing himself as the son of Purandar on the
basis of a registered deed of acknowledgement of adoption. Purandar
and his wife Padmalata or Mathura had not adopted defendant no.1 at
any point of time. There was no giving and taking ceremony. The deed
acknowledging adoption was a forged one. The same was not executed
by Padmalata or Mathura. With this factual scenario, they instituted the
suit seeking the relief mentioned supra.

03. Defendant no.1 filed a written statement denying the
assertions made in the plaint. He has not disputed the relationship of the
parties with Kalicharan. He is the natural son of Kumudini, one of the
daughters of Kalicharan. The specific case of the defendant no.1 is that
he was adopted by Purandar, when he was two years of age. There was
giving and taking ceremony. On 25.08.1975, Padmalata executed a
registered deed acknowledging adoption in his favour. Mathura gave her
consent to the execution of the deed. He is in possession of the suit
properties continuously, uninterruptedly and to the knowledge of the
plaintiffs and as such, perfected title by way of adverse possession.

04. On the, inter se, pleadings of the parties, learned trial court
struck six issues. Both the parties led evidence, oral and documentary,
to substantiate their cases. Learned trial court came to hold that the
defendant no.1 is not the adopted son of Purandar and Padmalata. He
3

has not perfected title by way of adverse possession. Held so, it decreed
the suit preliminarily. Feeling aggrieved, the defendant no.1 appealed
before the learned District Judge, Bolangir, which was subsequently
transferred to the court of the learned Additional District Judge, Bolangir
and renumbered as T.A. No. 20/15 of 1991-92. The learned appellate
court concurred with the findings of the learned trial court and dismissed
the appeal.

05. The Second Appeal was admitted on the following substantial
questions of law enumerated in the ground nos.(i), (ii) and (iii) of the
appeal memo:-

“(i) Whether the learned courts below were correct in dis-
believing the adoption of the appellant-defendant no.1 on
the assumption that no date of adoption is pleaded when
Ext.D, the deed of acknowledgment of adoption dated
25.08.1975 clearly acknowledges the adoption in
question ?

(ii) Whether the mere fact that the adoptive parents were
capable of procreating at the time of adopting appellant-
defendant no.1 can believe the factum of adoption which
has been established otherwise ?

(iii) Whether the learned courts below were correct in
rejecting the materials in support of adoption when all
the ingredients necessary to prove adoption including
giving and taking has been acknowledged under Ext.D
which has presumptive value under Sec.16 of the Hindu
Adoption and Maintenance Act ?”

06. Heard Mr. Ramakanta Mohanty, learned Senior Advocate
along with Mr. Tapas Kumar Mohanty, learned counsel for the appellant.
None appears for the respondents.

07. Mr. Mohanty, learned counsel for the appellant submits that
defendant no.1 is the adopted son of Purandar and Padmalata.
Padmalata had executed a registered deed acknowledging adoption on
25.08.1975 vide Ext.D. Merely because the adoptive parents were
4

capable of procreating a child at the time of adoption, the same is not
per se a ground to disbelieve the factum of adoption. There was giving
and taking ceremony. The courts below committed a manifest illegality
and impropriety in disbelieving the plea of adoption.

08. In the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504,
the apex court held that as an adoption results in changing the course of
succession, depriving wives and daughters of their rights and
transferring properties to comparative strangers or more remote
relations it is necessary that the evidence to support it should be such
that it is free from all suspicion of fraud and so consistent and probable
as to leave no occasion for doubting its truth.

09. This Court in Bauri Dei and others v. Dasarathi Sahu and
others, Vol.XLI (1975) CLT 267, held that the creation of documents is
not substitute for the fact of giving and taking which must be proved
independently de hors any document.

10. Learned appellate court came to hold that the adoptive
mother was 38 years and defendant no.1 was 26 years in the year, 1975
when Ext.D was executed. In case, defendant no.1 was adopted at the
age of two, as alleged, then the adoption took place in the year 1951,
when the adoptive mother was only 14 years old and adoptive father
was 33-34 years old. It further held that defendant no.1, in his
evidence, has stated that Padmalata had given birth to two daughters.
Thus she was capable of procreating a child. The plea that the adoptive
parents lost hope of begetting any issue for perpetuating their lineage is
baseless. The oral testimony led from the side of the defendant with
regard to adoption ceremony is very shaky, inconsistent and improbable.
The certified copy of the entry in the school admission register of Jaloe
U.P. School vide Ext.1 shows that the defendant no.1 is the son of
Sadhu Charan Panda, D.W.4. He was admitted in the school on
5

13.04.1959 in Class IV. It is a strong circumstance to belie the plea of
adoption, since the surname of defendant no.1 was not changed. In the
voter list of the year, 1970 vide Ext.8, defendant no.1 was described as
the son of Sadhu Charan Panda. The subsequent change of the father’s
name in the voter list was not done at the instance of defendant no.1.
These are essentially a finding of fact. 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 the aforesaid, the appeal, sans merit,
deserves dismissal. Accordingly, the same is dismissed. There shall be
no order as to costs.

……………………………

DR. A.K.RATH, J.

Orissa High Court, Cuttack.

The 16th March, 2018/Puspanjali

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