HIGH COURT OF ORISSA: CUTTACK
SA No.291 of 1994
From the judgment and decree dated 10.8.1994 and 27.8.1994 respectively
passed by Sri S.Naik, learned Civil Judge (Senior Division), Jagatsinghpur
in Title Appeal No.16 of 1987 confirming the judgment and decree dated
4.4.1987 and 18.4.1987 passed by Sri B.S. Mohapatra, learned Munsif,
Jagatsinghpur in Title Suit No.123 of 1980.
Grama Devati, Satabhauni
Thakurani others …. Appellants
Ranga Bewa others …. Respondents
For Appellants … Mr. S.R Pattnaik, Adv.,
Mr. Imran Khan, Adv.
For Respondents … Mr. Sushant Ku. Dash, Adv.,
Ms. Arunima Das, Adv.
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 08.12.2017 : Date of judgment: 18.12.2017
Dr. A.K.Rath, J Defendant nos.1 to 6 are the appellants against a
2. Fakir Charan Swain, predecessor-in-interest of
respondents 1(a) to 1(h) as plaintiffs, instituted the suit for
declaration of right, title and interest, confirmation of possession and
in the alternative for recovery of possession, if he has been
dispossessed during course of trial and permanent injunction. Case
of the plaintiff was that the suit schedule land originally belonged to
one Muli Swain. After his death, defendant nos.8, 9 and 10 were in
possession of the suit land. They sold the suit land to the plaintiff by
means of a registered sale deed dated 25.4.1979, vide Ext.1.
Defendant nos.1 to 6 claimed to have purchased the suit land from
the defendant no.7, who proclaimed to be the adopted son of Muli
Swain. Defendant no.7 executed the sale deed by impersonating
himself to be the adopted son of Muli Swain. Therefore, defendants 2
to 6 have no right, title and interest over the suit land. With this
factual scenario, he instituted the suit seeking the reliefs mentioned
3. Defendants 1 to 6 filed a joint written statement denying
the assertions made in the plaint. It was pleaded that Muli Swain
and his wife Badani adopted defendant no.7 when he was only two
years old. Since the day of adoption, defendant no.7 was residing in
the house of Muli Swain. In the school records and voters list,
defendant no.7 has been described as son of Muli Swain. Muli Swain
also executed a registered deed acknowledging the adoption.
Defendant nos.8 to 10 filed a joint written statement supporting the
stand of the plaintiff.
4. Stemming on the pleadings of the parties, learned trial
court struck eight issues. Parties led evidence, oral and
documentary, to substantiate their cases. Learned trial court came to
hold that Muli Swain had not adopted defendant no.7. The sale deed
executed by defendant no.7 is inconsequential in nature. Defendant
no.8 is the legally married wife of Muli Swain and defendant nos.9
and 10 are their sons. The sale deed Ext.1 was executed by
defendant no.8 and defendant nos.9 and 10, who were minors. It is
voidable at the option of the minors. Minors did not assail the sale
deed. Held so, it decreed the suit. Unsuccessful defendants filed Title
Appeal No.16 of 1987 in the court of the learned Civil Judge (Senior
Division), Jagatsinghpur, which was eventually dismissed.
5. The second appeal was admitted on 30.10.1995 on the
following substantial question of law.
“The appeal would be heard on the question of adoption.”
6. Heard Mr. S.R. Pattnaik, learned counsel along with Mr.
Imran Khan, learned counsel for the appellants and Mr. Sushant
Kumar Dash along with Ms. Arunima Das, learned counsel for the
7. Mr.Pattnaik, learned counsel for the appellants submitted
that Badani Dei was the first wife of Muli Swain. They had no issue.
They adopted defendant no.7 in the year 1933 when he was two
years. Defendant no.7 stayed in the house of Muli. After the death of
Badani, Muli remarried to Chanchali-defendant no.8. Defendant
nos.9 and 10 are the sons of Muli through second wife. To avoid
future complicacy, Muli executed a deed acknowledging adoption in
the year 1954, vide Ext.A. In the school leaving certificate,
consolidation ROR and voter list, defendant no.7 has been described
as son of Muli Swain. It is a case of ancient adoption. The factum of
giving and taking ceremony was not necessary. The registered deed of
adoption vide Ext.A coupled with school leaving certificate, voter list,
consolidation ROR (not final) vide Exts.A,B,D,F and G would
unerringly show that defendant no.7 is the adopted son of Muli
Swain. Learned trial court misconstrued and misapplied the decision
of this Court in the case of Bauri Dei and others v. Dasarathi Sahu
and others, 1974 (1) CWR 403, wherein it was held that the creation
of documents is not a substitute for giving and taking, which must
be proved independently de hors any document. The omission of the
day or date of adoption is vital and the deed of acknowledgment of
adoption loses its significance. In the instant case, the deed was
executed on 14.4.1954 acknowledging the adoption. The
acknowledgment of adoption has to be given full weight. The courts
below committed grave error in disbelieving the materials available
on record and held that giving and taking ceremony was not held. He
relied on the decisions of this Court in the case of Agani Bewa v.
Bhaskar Mallik, Vol.III (1961) OJD 196 and Balinki Padhano and
another v. Gopakrishna Padhano and others, AIR 1964 Orissa 117
and Agani Bewa (supra).
8. Per contra Mr. Dash, learned counsel for the respondents
submitted that in the deed of acknowledgment of adoption, vide
Ext.A, the name of defendant no.7 has not been mentioned. No
presumption under Sec.16 of the Hindu Adoption and Maintenance
Act is available in respect of a pre-Act adoption. The deed
acknowledging adoption must satisfy the requirements under law.
The deed must be signed by both the person giving and the person
taking the child in adoption. The same has not been done. Defendant
no.7 being the sister’s son of Muli, adoption is invalid. The evidence
of giving and taking ceremony is scanty. Entry in the voter list is not
sufficient to prove the adoption. Documents are not enough to hold
that Arjuna was adopted by Muli, when he failed to prove giving and
taking ceremony. Arjuna was not the adopted son of Muli. He has no
right to alienate the suit property of Muli in favour of defendant nos.1
to 6. The same does not create any title in their favour. Chanchala is
the legally married wife of Muli. Defendants 8 to 9 are the sons of
Muli and Chanchala. For legal necessity, they sold the land to the
plaintiff. Defendants 1 to 7 being the strangers, they cannot
challenge the sale deed. Defendant nos.8 and 9 were minors at the
time of execution of the sale deed. They are parties to the suit.
Neither they challenged the sale deed nor filed any counter claim. He
cited the decisions of this Court in the case of Priyanath Mohanty v.
Indumati Bewa, AIR 1971 Orissa 211, Ranjit Sahu v. Nilambar Sahu
and another, AIR 1978 Orissa 48, and Doctor Nahak v. Bhika Nahak,
77 (1994) CLT 523.
9. The apex court in the case of Kishori Lal v. Mt. Chaltibai ,
AIR 1959 SC 504, 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.
10. It is not a case of ancient adoption. D.W.1 was a witness
to the giving and taking ceremony. Defendant no.7 is the sister’s son
of Muli. The deed acknowledging adoption, vide Ext.A, reveals that
when defendant no.7 was two years old, he was adopted. The day
and date of adoption has not been mentioned. Ext.A was registered
on 14.5.1954. Muli was 29 years when alleged adoption took place.
As held by this Court in the case of Bauri Dei (supra), creation of
documents is no substitute for the fact of giving and taking which
must be proved independently de hors any document. Omission of
the day or date of adoption is very vital and the deed of
acknowledgment of adoption loses all its significances.
11. In Agani Bewa (supra), this Court held that where a deed
is executed by a person stating that a valid adoption had already
taken place, such an admission should be given its full weight, in the
absence of evidence showing that the admission was untrue or was
made by mistake or fraud or other vitiation circumstances and the
fact of adoption as well as is validity must be taken to be established.
12. 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.
13. In Priyanath (supra) this Court held that sister’s son
cannot be adopted, unless a custom in support of such adoption is
pleaded and established. The bar in Hindu Law against adoption of a
sister’s son is on the basis that the sister could not have been
married to the brother and thus the brother cannot adopt the sister’s
son. A fiction in law is created in the event of adoption for the
adopted son’s mother being the wife of the adoptive father. The
principle of factum valet also does not apply in the case of adoption.
14. Defendant no.7 is the sister’s son of Muli Swain. This is a
pre-Act adoption. Article 477 of Mulla’s Hindu Law (22nd edition)
provides that the adopted son must not be a boy, whose mother the
adoptive father could not have legally married, unless it is sanctioned
by the custom. There is no pleading or evidence with regard to
15. In Doctor Nahak (supra), this Court held that a person
would not normally adopt when he expects a son would be borne to
him. This is a strong circumstance to disbelieve adoption.
16. Judging the case from any angle, this Court is of
unhesitant opinion that defendant no.7 is not the adopted son of
Muli Swain. Defendant no.7 is a stranger. Alienation by defendant
no.7 in favour of defendants 1 to 6 cannot create any title in their
favour. Defendants 1 to 6 are strangers. A stranger cannot challenge
any transaction on legal necessity, unless he or she has interest in
the property. Further, defendants 8 and 9 are parties to the suit.
They have neither challenged the sale deed nor filed any counter
claim. The substantial question of law is answered accordingly.
17. A priori, the appeal fails and is dismissed. There shall be
no order as to costs.
DR. A.K.RATH, J
Orissa High Court, Cuttack.
Dated the 18th December, 2017/Pradeep