RAGHUNATH BEHERI Vs. BALARAM BEHERA

JUDGEMENT

(1.) Raghunath (the plaintiff-appellant) and Balaram (defendant No. 1 - respondent No. 1) each claimed to be the adopted son of Kalandi Sahara and Nisa Bewa (defendant No. 2 - respondent No. 2) in a suit filed by Raghunath. The suit was one for a declaration that Raghunath is the adopted son, and not Balaram and that the deed relating to acknowledgment or adoption and gift, executed by Nisa in favour of Balaram is not valid and binding learned Munsif, Bhubaneswar non-suited the plaintiff holding that plaintiff was not the adopted son. She also concluded that Balaram was not the adopted son, and the document relating to acknowledgment of adoption and gift dated 13-2-1981 (Ext. B) is not valid and operative. Raghunath filed an appeal relating to the finding regarding adoption, while cross appeal was filed by the defendants relating to Balaram's claim of adoption and validity of deed dated 13-2-1981. Learned Additional District Judge, Bhubaneswar dismissed Raghunath's appeal, but allowed the cross-appeal in part holding that the deed (Ext. B) was valid and operative.

(2.) Before dealing with the rival submissions, a brief reference to inter se relationship between parties and their stands as pleaded is necessary. One Kirtan had three sons namely, Dharamu, Kalandi (husband of Nisa) and Arjun. Raghunath is the son of Dharamu. Kalandi had two daughters namely, Dhobani and Labani. Raghunath's claim is of adoption, as stated above to Kalandi and Nisa. Balaram is son of Kumar Behera, brother of Nisa. He also claims to have been adopted by Kalandi and Nisa. Raghunath's case is that having lost five sons in quick succession in their infancy, Kalandi and Nisa adopted him. At the age of five, he was given in adoption by his natural parents and were adopted by Kalandi and Nisa on 10th February, 1955. Balaram's stand is that for the first time in 1963, the idea germinated in the minds of Kalandi and Nisa to adopt a boy, as they had lost all hopes of begetting a male issue. That is how Balaram, an one year old boy was adopted on Basant Panchami day of 1964. He stayed with both his adoptive parents till 1980 when Kalandi breathed his last, and thereafter with Nisa.

(3.) In this appeal under Section 100 of the Code of Civil Procedure, 1908 (in short, the 'Code'), Raghunath calls in question the defensibility of the conclusions of the appellate court. It is his stand as presented by his learned counsel Miss Sanju Panda that the conclusions relating to adoption are perverse and have been arrived at by placing emphasis on irrelevant materials, and keeping out of consideration relevant materials. Giving and taking of the adopted boy which is the most vital aspect in adoption having been established, the courts below were not justified in accepting his plea of adoption by referring to inconsequential matters like Raghunath being the only son of his parents could not have been given in adoption, or the improbability of adoption when the alleged adoptive parents were young enough to beget a child. Courts below should not have taken note of his description in an alleged sale deed dated 22-1-1975 as son of Dharamu. The original deed was not produced, and it is not known who had executed it, as he was not a party to the said deed. So far as the deed (Ext B) is concerned, it is submitted that the claim of adoption as made by Balaram having been discarded as untenable, the gift deed executed on the footing that he was the adopted son was inoperative. The lower appellate court should not have held that the gift made in favour of Balaram was not on account of adoption. In any event it should have held that Nisa had no competence to dispose of coparcanery property.