HARA DIBYA Vs. PRAVAKAR SATAPATHY

JUDGEMENT

(1.) IN the suit for partition the plea of adoption raised by the plaintiff having been accepted, the defendant has filed this appeal.

(2.) A brief adumbration of the factual aspect is necessary plaintiff claiming to be adopted son of late Chaitanya Satapathy, and present appellant Hara Dibya filed a suit for partition claiming half -share; asserting his adoption in the year 1960. This claim was resisted by the defendant -appellant on the ground that there was no adoption as claimed, and in any event her consent which is mandatorily prescribed having not been obtained there was no adoption in the eye of law and therefore, the claim of the plaintiff -respondent is untenable; the plaintiff -respondent is the natural born son of Joginath Satapathy and in all relevant documents including voters' list and educational records the aforesaid Joginath has been recorded to be the father of plaintiff respondent.

(3.) THE contentions raised need careful consideration. Since adoption in this case is claimed to have taken place after 1956, the provisions of Hindu Adoptions and Maintenance Act, 1956 (in short 'the Act') are applicable to the facts of the case. The burden of establishing that there was a valid adoption which deflected the ordinary course of succession, is on the party who pleads the case of adoption, (See AIR 1972 SC 2446 : Daulatrao Jairamji (since dead) by L. Rs. v. Harishchandra and Ors.). Under Hindu Law giving and receiving of a boy are absolutely necessary for the validity of an adoption; they are the operative part of the ceremony, being that part of deed which transfers the boy from one family to another; but the Hindu Law does not require that there would be any particular form so far as giving and acceptance are concerned for a valid adoption. All that the law requires is that the natural father would be asked by the adoptive parents to give his consent for adoption and that the boy would be handed over and taken for this purpose. (See AIR 1970 SC 1286 L. Devi Prasad (dead) by L. Rs. v. Smt. Tribeni Devi and Ors.) For a valid adoption, the physical act of giving and taking is an essential, requisite. As an adoption results in changing the course of succession, depriving the wife and daughters of their rights, 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 suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. (See AIR 1959 SC 504 Kishanlal v. Chaltibai). In the instant case, the alleged adoptive mother pleads absence of consent, and makes a denial of the adoption in question. Therefore, the burden of proof which initially lies on the claimant -plaintiff is more rigorous. The proviso to Section 7 makes it imperative that any male Hindu who desires adoption must have the consent of his wife if the latter is living, unless she has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. It is very clear that the adoptive mother has a vital role to play in the process of adoption. As indicated above, the onus becomes heavier when the alleged adoptive mother herself disputes the claim of adoption unless it is shown that he has special reasons for doing so and/or that the denial is actuated with oblique motives. A perusal of the evidence and the conclusions made therefrom by the learned Subordinate Judge leaves no scope for any doubt that presumption and conjecture has played a vital role in the adjudicatory process. Some of the major faux pass committed by the learned Subordinate Judge may be indicated. The entry in the voters' list has been discarded on the ground that the enumerator who prepared the voters' list has not been examined. The conclusion is clearly contrary to law as held in 1973 (2) CWR 1108, Linga Malik v. Ajodhya Malikani and Anr. and 38 (1972).CLT 82, Kirtan Sahu (after him) Uma Sahuani and Ors. v. Thakur Sahu and Ors. The learned trial Judge has committed an error of law in keeping out of consideration, the entry in the voters' list. Similarly the certificates issued by the schools where the plaintiff was studying, and the admission register of the school indicated the name of natural father. The plaintiff has accepted that when he took admission in the .Middle English School or took his matriculation examination, the alleged'' adoption had already taken place. Therefore, in normal course the name of the alleged adoptive father should have been indicated. The explanation given for recording the name of the natural father is not very convincing. Coupled with this fact, there is no clinching evidence for coming to the conclusion that the consent of the defendant existed at the time of alleged adoption. Even though this was the most vital question to be considered, the learned Subordinate Judge has not addressed himself to this aspect properly. Many of the conclusions arrived at by the learned Subordinate Judge are not really relevant. Actual giving and taking has been made a condition precedent for a valid adoption in terms of Clause (vi) of Section 11. Mere giving and taking, without the consent of the adoptive mother would not be sufficient for the purpose of a valid adoption. The learned Subordinate Judge has discussed the evidence relating to giving and taking at great length. From that he has inferred consent. For such inference, material evidence should have formed the foundation. Unfortunately in the present case that is lacking, one further feature which renders the conclusion of the learned Subordinate Judge unacceptable is his lightly brushing aside non -examination of the natural father. He has presumed that had the natural father been examined, his evidence may have been characterised as tainted with bias and interestedness. Such a conclusion is irreconcilable. As held by this Court in 34 (1968) CLT 778 Jadumani Patra v. Padan Patra and Ors., and 63 (1987) CLT 686 Puni Bewa and Ors. v. Bijaya Kumar Mohapatra and Anr., non -examination of the natural father affects the credibility of the claim of adoption. In the latter case the matter was remitted back to the trial Judge for examining the natural father as a witness. As indicated above, the evidence on the question of consent is also deficient. In the ends of justice I feel that this case is to be remitted back to the trial Judge for allowing the parties to lead further evidence on the question of consent or absence thereof, and for examination of the natural father, if the plaintiff so chooses. If the parties make proper applications for the purpose, the learned trial Judge shall consider them, and allow the parties to lead further evidence. The learned trial Judge shall also consider relevance of the entries in the voters' list and the educational registers where the name of natural father appears. Since the suit is of the year 1975, the learned trial Judge would ,do well to expedite disposal of the suit afresh as expeditiously as possible, preferably before 1991 sets in.