ARAKHITA SWAIN Vs. KANDHUNI SWAIN

JUDGEMENT

(1.) This appeal has been filed by the defendant against the confirming judgment of the learned Subordinate Judge, Aska. Plaintiff is the wife of Dandapani Swain and daughter of the late Choudhury Swain and Chitra Swain, who died in 1960 and 1962 respectively. Defendant is the son of the plaintiff and Dandapani.

(2.) The plaintiff's case may be briefly stated. She is the only daughter of her parents and after her marriage along with her husband she lived with her parents. By their joint efforts the late Choudhury and Dandapani acquired some landed properties. In 1953 there was misunderstanding between the late Choudhury and Dandapani and hence the properties were divided by a registered deed of partition between them on 26-4-1953. At this partition about Ac, 3.60 cents of land and a dwelling house fell to the share of the late Choudhury and his wife who possessed the said properties till their deaths in 1960 and 1962 respectively. Thereafter the plaintiff possessed the said properties being the only heir. However, in March 1976 the defendant who was staying jointly with his parents, the plaintiff and Dandapani, claimed the properties of the late Choudhury and the late Chitra exclusively as his own claiming himself to be the adopted son of the late Choudhury and the late Chitra. On enquiring into the matter in May, 1976 the plaintiff came to learn that the defendant had acquired a registered document eft; 23-4-1960, styled as Dutta Grahita Dastabija from the late Choudhury and the late Chitra. On 234-1960 the defendant was 16 years of age and not 12 years as stated in the deed. Neither the plaintiff nor her husband had given the defendant for adoption by the late Choudhury and the late Chitra and no giving and taking ceremony had taken place. There was no adoption and if there was any adoption as claimed by the defendant, it was not to the knowledge of the plaintiff and her husband and as such was void. On further enquiry the plaintiff learnt that the deed had been scribed under instructions of the defendant and the contents thereof were never explained to the executants who had signed the document without knowing the contents thereof. The defendant unduly influenced and prevailed upon the late Choudhury and the late Chitra to execute the document which was void and inoperative in law and as such the defendant acquired no status under the same. The defendant was never treated as the adopted son of the late Choudhury and the late Chitra. After the death of her mother, the plaintiff possessed the entire properties left by her as her only heir. The plaintiff has accordingly prayed for a declaration that the deed dt. 234-1960 is void and inoperative and as such the defendant has acquired no status under the same.

(3.) In his written statement the defendant has admitted that the late Choudhury and the late Chitra, his maternal grant-parents, had died in 1960 and 1962 respectively. The defendant was residing in the house of the late Choudhury and the late Chitra from his childhood where he was brought up by the latter. While he was 12 years of age, the late Choudhury and the late Chitra adopted him, and his parents, the plaintiff and Dandapani, gave him in adoption to the late Choudhury and the late Chitra who accepted the defendant as their adopted son. In token of this adoption the lat Choudhury and the late Chitra had executed the registered adoption deed dt. 23-4-1960. The deed was executed to the knowledge of the plaintiff and her husband. After the death of the defendant's adoptive parents, all the documents including the adoption deed remained in the custody of the plaintiff. The executants of the adoption deed had fully understood the contents of the deed before execution of the same in the presence of witnesses. The defendant had not exercised any influence on his adoptive parents. The adoption is not the outcome of fraud and misrepresentation. The deed is valid and has been acted upon. The defendant has accordingly prayed that the suit should be dismissed.