DOCTOR NAHAK Vs. BHIKA NAHAK

JUDGEMENT

(1.) Plaintiff is the appellant against dismissal of a suit for partition. Plaintiff is son of Anand. Defendant No. 1 Bhika is elder brother of Anand. Dhobani (defendant No. 2) is daughter Bhika. Case of the plaintiff is that when he was aged 10 years, Bhika adopted him on 28 -1 -1955. Bhika executed a registered deed of adoption on 9 -10 -1969 (Ext. 1) acknowledging the adoption. However, on 6 -9 -1976 Bhika cancelled the deed of adoption by another registered document and gifted his property to his daughter (defendant No. 2). Immediately thereafter suit was filed for partition on 15 -10 -1976.

(2.) CASE of defendants is that Bhika did not adopt plaintiff at any time. He being an old and illiterate man was assured by his younger brother of all help and assistance in his management of properties on condition that he executed the adoption deed in token of his son who with his wife would stay with defendant No. 1, cook food for him and serve, he executed the document recitals of which are not true. Being convinced later that the document was got executed by him to grab his properties, defendant No. 1 cancelled the same by another registered document voluntary. Defendant No. 1 had executed one gift deed in favour of his daughter on 28 -4 -1958 and another on 6 -9 -1976 out of this own volition and defendant No. 2 is in possession of the said properties.

(3.) ON consideration of materials on record, Trial Court held that plaintiff is not the adopted son. Trial Court disbelieved the oral evidence adduced in this regard, drew advise inference for non -examination of person who were claimed to be present by other witnesses. It gave importance to the fact that in Ext. 1 plaintiff was described as son of Anand Naik. Entries in voters' lists describing plaintiff as son of defendant No. 1 was not also given importance. Finding that plaintiff not being adopted son has no locus standi to object to the deed of gift, it was held in evidence that gift was voluntary.