DRAUPADI BEHERANI Vs. SAMBARI BEHERA

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against a reversing judgment of the learned subordinate Judge of Berhampur dated 31-1-1953. The plaintiffs commenced an action for recovery of possession of certain lands with mesne profits. The disputed lands originally belonged to one Pandaba Behera who died in about 1925 leaving behind him his widow Draupadi, plaintiff-1 and son, Dukha. Dukha married one rekha Beherani, defendant-2; On 11-9-1948, Dukha died leaving behind him his widow (defendant No. 2) and his mother, plaintiff No. 1. The plaintiffs case was that while Draupadi was still mourning the death of her son, she was prevailed upon by defendant-3, Benu Behera, to take his son sombari Behera (defendant-1) in adoption, and got him married to her widowed daughter-in-law, defendant-2. It was further represented to her that in that event defendants 1 and 2 would be of considerable assistance to her in her old age. Plaintiff-1 fell a prey to these proposals and accordingly on 24-9-1948, she executed a deed of adoption in favour of defendant-1 (Ext. A ). Between september 25 and 26, 1948, plaintiff-1 got defendant-1 married to defendant 2. The further allegation of the plaintiffs was that although plaintiff-1 executed a deed of adoption in favour of defendant-1, she had not in fact adopted him since by that time defendant-1 had already been married elsewhere. Accordingly she challenged the adoption, on the ground that the consent of the nearest reversioner had not been obtained. Shortly after the execution of the deed of adoption, defendants 1 and 2 began to ill-treat plaintiff-1. Hence on 23-7-1949, plaintiff No. 1 executed a registered deed cancelling the deed of adoption dated September 24 and subsequently took plaintiff-2 in adoption, and executed another deed of adoption in his favour on 24-11-1949. On 2-8-1949, defendants 1 and 2 having come to know about the cancellation of the deed of adoption in favour of defendant-1, they executed a registered deed of conditional sale in favour of defendant-3, the natural father of defendant-1 in respect of the disputed properties for a consideration of Rs. 700/ -. The plaintiff further alleged that this document is not a genuine one and there was no necessity for executing the same. In pursuance of the deed of sale, defendants 1 and 2 along with de-fendant-3 and his sons, defendants 4 and 5, were in unlawful possession of the disputed properties which compelled the plaintiff to commence the present suit.

(2.) THE defence of the defendants was that after the death of Dukha Behera the suit properties vested in his widow, Rekha Beherani (D. 2) and that with a view to divert the property from her, plaintiff-1, Draupadi, with the consent of the reversioners did in fact adopt defendant-1 and got him married to defendant-2, and it is not true that by the time of the adoption detendant-1 had already been married. Thus, the adoption of defendant-1 by plaintiff-1 was perfectly valid and accordingly he acquired a valid title to the disputed properties. The adoption of plaintiff-2 by plaintiff-1 is neither true nor valid since her power to adopt had been exhausted by then. It was further averred that plaintiff-1 having executed the deed of adoption in favour of defendant-1 and having by her representations caused a change in the latter's status as well as of defendant-2, plaintiff-1 is now estopped from disputing the validity of the adoption of defendant-1. They also stated that the deed of conditional sale executed by defendants 1 and 2 in favour of defendant-3 is not a fictitious document and in fact the amount of Rs. 700/-was secured to be utilised in discharging the family debts, the major part of which was contracted by plaintiff-1 herself.

(3.) THE learned trial Judge on a consideration of the above pleadings and the evidence on record held that the adoption oe defendant-1 was void on the ground that plaintiff-1 was incompetent to adopt in the presence of her widowed daughter-in-law (defendant-2), and further she had no authority from her husband to make such an adoption as also the consent of the reversioners was not obtained before defendant-1 was actually taken in adoption. The trial judge also held that in view of the fact that Dukha died leaving behind him his widow who at the time of the alleged adoption had not been remarried, plaintiff-1 had no power to make such adoption. Thus, accordingly he held that the adoption of defendant-1 was void ab initio. He further held that since after the adoption,, defendant-1 remarried defendant-2, the latter had suffered a civil death which gave power to plaintiff-1 to make an adoption, to her husband. In fact, she adopted plaintiff-2 with the consent of the reversioners and consequently plaintiff-2 is the legally adopted son of plaintiff-1. In view of the above findings the trial Court directed the plaintiffs to recover possession of the suit-properties after ejecting the defendants therefrom. With regard to the claim for mesne profits, he found that the claim had not been proved and accordingly he rejected the same. The defendants being aggrieved by the decision with regard to the recovery of possession preferred an appeal and the plaintiffs preferred a cross-appeal against the disallowance of the mesne profits.