BHIMA KOTHA Vs. SARAT CHANDRA

JUDGEMENT

(1.) The short but interesting question that arises for consideration in this second appeal is whether a male Hindu having a widowed daughter-in-law capable of adopting a child could validly adopt a child to himself. It will be convenient to quote ground No. 4 of the memorandum of appeal which was accepted at the time of admission of the appeal as raising a substantial question of law to be decided in the appeal :

(2.) The facts relevant for the purpose of the appeal may be shortly stated thus :- Sarat Chandra Kotha Dalai, respondent No. 1, filed the suit, Title Suit No. 99 of 1971 in the Court of the Subordinate Judge, Aska against the appellants, respondent No. 1 and predecessor in interest of respondents 3(a) and 3(b) for declaration of his title to the suit properties, for possession of the same after evicting the defendants and if the court finds that the suit properties are the joint family properties of late Butulu Kotha Dalai and his sons, for partition and separate possession of the share of the plaintiff. The case stated in the plaint was that the parties are Khandayats settled in Balliguda Taluk in the district of Phulbani. Succession to their properties is guided by the law of Mitakshara as prevalent in the ex Madras State of which Balliguda division formed a part. The properties described in the schedules to the plaint comprised of agricultural land and house situated at Dudugumma, a hamlet of Mohasingi village. The extent of the properties was about 12 acres as described in schedule 'B' to the plaint. According to the plaintiff, the suit properties were self-acquired properties of late Butulu Kotha Dalai. Butulu had two sons, Krushna Khota Dalai and Ramchandra Kotha Dalai, and two daughters, Janiphula and Badu alias Bimala Stree. Both Krushna and Ramchandra predeceased their father, the former having died in 1937 and the latter in 1946. Pirabati, the wife of Krushna Kotha Dalai, died during 1956 or 1957 leaving no issues. Kointara, defendant No. 3 (appellant No. 3), is the widow of Ramchandra Kotha Dalai. She has no issues. It was the further case of the plaintiff that with a view to perpetuate their line, Butulu and his wife decided to take a boy in adoption. They approached Pindika Patra, the natural father of the plaintiff, who was none else than the son-in-law of Butulu having married his daughter Janiphula to give the plaintiff to them in adoption. The natural parents of the plaintiff agreed to the proposal. Accordingly adoption ceremony was held on 18-6-1951 in presence of near relations. The giving and taking ceremony was performed and followed by a feast. From that day the plaintiff took the name of Sarat Chandra Kotha Dalai. Butulu also executed a deed of adoption evidencing the adoption of the plaintiff and recognising him as his sole heir on 18-6-1951. Butulu died during October, 1954 and his wife Tulsa died a year after, in October, 1955. After the death of Tulsa the suit properties were being managed by Pirabati and after her death by Kointara on behalf of the plaintiff who was then a minor. At this stage the father of the first defendant (appellant No. 1) and the mother of the second defendant (appellant No. 2) who were in no way related to the plaintiff or his family surreptitiously managed to get a deed of gift executed by Kointara on 25-6-71 conveying all the suit properties in their favour. Despite the said document the donees could not get possession of the suit properties and the plaintiff continued to possess the same. The plaintiff challenged the deed of gift as invalid and void on several grounds. It is not necessary to describe them in detail. The defendants 1 and 2 being armed with the invalid deed of gift trespassed upon the suit land on 29-8-71 during absence of the plaintiff from the village. On these averments the plaintiff sought the reliefs noticed earlier.

(3.) The suit was contested by defendants 1 to 3. In the joint written statement filed by the said defendants they denied the claim of the plaintiff that he was the adopted son of Butulu Kotha Dalai. According to them the suit properties were ancestral properties of Butulu to which he and his sons had right, title and interest. According to the defendants, Krushna and Ramchandra died in the year 1935 and 1949 respectively, leaving behind their widows Pirabati and Kointara, Janiphula and Bimala having been married away the entire suit properties were exclusively possessed by Kointara, widow of Ramchandra. According to these defendants, the plaintiff was never taken in adoption by Butulu and his widow. There was never any giving and taking accompanied by other religious ceremonies as alleged in the plaint. The adoption was also challenged to be illegal and contrary to law. Kointara being the sole surviving heir of the family possessed and enjoyed the entire properties till the date of alienation of the same by way of gift to defendants 1 and 2. Defendant No. 3 claimed to have acquired absolute right in the properties of Butulu Kotha Dalai under S.14 of the Hindu Succession Act, 1956.