GOKUL CHANDRA BURMA Vs. BISWANATH NARAYANI DEI

JUDGEMENT

(1.) THESE three appeals arise out of one judgment of the Additional Subordinate Judge of Cuttack and are disposed of by one judgment.

(2.) THE main point in controversy in these appeals is whether the plaintiff Biswanath Poddar (principal respondent in all these appeals) is the validly adopted son of one Raghunath Poddar, a Marwari businessman owning a shop in Cuttack town who died on 9/-6/1957 leaving considerable properties. THE genealogical tree given below is helpful for appreciating the claims of the parties : THE plaintiff's case was that Raghunath had at a somewhat elderly age, married Shanti Dei (defendant No. 1) who was then a young woman, but did not beget a son through her. For sometime before his death, he was not keeping fit and apprehending death he adopted the plaintiff who is none else but his own sister's son, by taking the boy who was delivered to him by his parents. THE actual giving and taking was said to have taken place on 1-6-1957, but as Raghunath was not keeping well, the religious ceremonies connected with the adoption were postponed. Raghunath died eight days later, on 9-6-1957, without completing the ceremonies. It was therefore alleged that on his Sradh day, viz. 20-6-1957, his widow (defendant No. 1) completed the religious ceremonies connected with the adoption, including the performance of the Homa, tying the pugree on the head of the boy and taking him in a procession to the Temple and also executed a registered deed of adoption on 22-6-1957, acknowledging the plaintiff as her adopted son. Subsequently however differences arose because Shanti Del married an Oriya gentleman and also begot a son through him. THE plaintiff further alleged that his adoptive father Raghunath was a member of the joint family the line of his brother Ramlal became extinct, and his third brother is Muralidhar (original plaintiff No. 2) and defendant No. 4 a member of the joint family. THE last brother of Raghunath, named Harihar died leaving a widow, Narayani (defendant No. 2) but she relinquished her interest in the property by executing a valid Nadabi deed. Hence according to the plaintiff Muralidhar was entitled to 8 annas share of the properties and the plaintiff and defendant No. 1 were each entitled to four annas share.

(3.) THE lower court thought that the subsequent deed of adoption executed by defendant 1 on 22-6-57 (Ext. 3/a) is the best corroboration of the plaintiff's story of the earlier adoption. But in my opinion, it is the best evidence to discredit the story of adoption. THE original deed of adoption is said to have been destroyed and it is unnecessary to consider who was responsible for the same, as each party is accusing the other. But the certified copy has been proved and the ministerial officers of the Registration Department who prepared the certified copy have also been examined as witnesses (P.Ws. 7, 9 and 10). THE recital in the certified copy is indeed very strange. It is stated therein that Raghunath expressed on many occasions during his lifetime, a desire to adopt the plaintiff and that on 20-6-1957, the date when the Sradh ceremony was performed the adoption ceremonies were also completed. THE so called adoption of the plaintiff by Raghunath on 1-6-57 is completely omitted. On a fair construction of the document therefore it would appear that the story then put forward was that there was no adoption during the lifetime of Raghunath, that he merely expressed his desire on many occasions to his wife to adopt plaintiff, and that as authorised by him, defendant 1 adopted the plaintiff on his Sradh Day (20-6-1957). THE obvious question that arises for consideration is why the fact of first adoption was completely omitted in this document. It is the plaintiff's own case that on the date of execution of the document, viz. 22-6-1957 the parties were on friendly terms. Moreover the plaintiff's own natural mother Ratani, his grand uncle Parameswar Lal and his witness Mali Ram were all present when this document was being scribed and executed. His natural father Ramdayal was also there. With so many of his well-wishers and close relations present at the time of execution of the document it is obvious that the first adoption would have been mentioned therein if, in feet, it had taken place. THE facts were then fresh in the memory of all the parties because the document was being executed only 22 days after the date of first adoption. Of the story put forward in the plaint, viz. that the adoption was completed by Raghunath on 1-6-1957 and his widow (defendant No. 1) merely performed the customary religious rites on 20-6-1957 - after the death of Raghunath - be true, it would certainly have found place in the deed of adoption itself. None of the plaintiffs witnesses is in a position to give a satisfactory explanation for this fatal omission. Parameswar Lal (P.W. 2) was entirely silent on this point. This document is proved on behalf of the plaintiff and it was the duty of the plaintiffs witnesses to give a satisfactory explanation far this omission. Ratani is also silent and the only witness on the side of the plaintiff who has attempted some sort of explanation is Mallram (P.W. 11). He stated that as the draft of Ext 3/a was prepared by Advocate Shri Jugal Kishore Datta (since dead) he did not suggest the mention of the fact of previous adoption in the document. But this explanation is quite unconvincing. It was brought out during the cross-examination of defendant No. 4 by the plaintiff himself that the Advocate Shri Jugal Kishore Dutta was present when Ext. 3/a was being executed. If in fact the story of the first adoption said to have taken place on 1-6-1957, had been narrated to him by the parties, he would surely have mentioned that fact in the document, knowing its importance. As there is no suggestion of collusion between the Advocate Sri Jugal Kishore Dutta and defendant No. 1 it will be idle to surmise that he deliberately omitted to mention it in the document with a view to favour defendant 1 and that the plaintiff's witnesses were misled by his conduct. THE Advocate is now dead. He was said to be lying seriously ill in Calcutta when the evidence was being recorded by the lower Court. THE plaintiffs could easily have taken out a commission for his examination if they wanted to clarify the matter.