FULLAMONI DEI Vs. NETRANANDA SAHU

JUDGEMENT

(1.) KANHEI Sahu had three sons Krupasindhu, Ramchandra and Bhagaban. Fullamoni (Plaintiff 1) is the wife of plaintiff 2. Deceased Ramchandra had five sons mukunda (D. W. 2), Sadananda, Netrananda (defendant), Kshetramohan and punananda. Jaykrishna, Basudeb and Banamali are the sons of deceased krupasindhu. On 11-2-58 plaintiff 2 executed a registered adoption deed (Ex. B)reciting therein that he had adopted the defendant ten years ago. On 12-2-58, just a day after, a registered partition deed (Ex, A) was brought into exist- nee to which plaintiff 2 and the sons of Krupasindhu and Ramchandra were parties. The properties were divided into three shares and the one-third share, to which plaintiff 2 was entitled, was allotted to plaintiff 2 and the defendant on a recital that the defendant had been adopted by plaintiff 2. The suit was filed on 8-2-61 on the averment that the plaintiffs did not adopt the defendant, that Ex. B was fraudulently procured and that the recital of adoption in ex. A was made without the knowledge of plaintiff 2. The suit was for a declaration that the defendant was not the adopted son of the plaintiffs and that Ex. B was not binding on them. It is to be noted that originally plaintiff 1 had alone brought the suit and plaintiff 2 was a defendant. Subsequently Bhagaban was transposed as plaintiff 2. The ''plaint was not, however, accordingly amended. The position is not disputed that the reliefs sought in the plaint by plaintiff 1 were the reliefs sought by both the plaintiff and on that basis the suit was fought out and evidence led. The defence was that the defendant was duly adopted by the plaintiffs on akshyatrutiya day in 1948 and that Exs. A and B were voluntarily executed by plaintiff 2 after having read their contents.

(2.) THE learned Subordinate Judge held that Exs. A and B were genuine and voluntarily executed by plaintiff 2 after fully knowing the contents thereof. Though initially Mr. Misra made an endeavour to assail this finding, ultimately he abandoned it and argued on the footing that the finding was correct. We have for ourselves also examined the relevant finding and are satisfied that the finding of the trial court and the concession made by Mr. Misra are well founded. The judgment would accordingly proceed on the finding that Exs. A and B were duly executed by plaintiff 2 after knowing the contents thereof.

(3.) THE learned Subordinate Judge found that the defence story of adoption was established. Section 31 of the Evidence Act lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels. Both in Exs. A and B plaintiff No. 2 admitted that the defendant was adopted by him. Such an admission, though not conclusive unless it amounts to estoppel, is decisive of the matter - unless successfully withdrawn or proved erroneous: see air 1960 SC 100, Narayan v. Gopal. The correct rule of estoppel applicable in the case of an adoption is that it does not confer status. It merely shuts out the mouth of the person who tries to deny the adoption. Where both parties are equally conversant with the true state of facts, the doctrine of estoppel has no application. The effect of the admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. The question of onus loses its efficacy when objection is not taken in the trial court and evidence has been laid by both parties: AIR 1959 8c S04, Kishori Lal v. Mst. Chalti bai. Mr. Mohapatra does not contend that any question of estoppel arises on the basis of Exs. A and B. The only question to be examined is whether the plaintiffs have been successful in establishing that the admission of plaintiff 2 in Exs. A and B about the adoption are wrong. In that regard the relevant matters to be examined are whether the ceremony of giving and taking has been performed and whether there are relevant facts militating against the theory of adoption.