ARJUNO NAIKO Vs. MODONOMOHONO NAIKO

JUDGEMENT

(1.) This appeal is brought by some of the defendants to a suit in which one Modonomohono Naiko was the plaintiff. The suit, in form a suit for partition, was in reality brought for the purpose of establishing that the plaintiff, as the adopted son of one Horikrushno deceased, was entitled to succeed to the Sirdarship of Gondadharo which had been held and enjoyed by Horikrushno in his lifetime. After Horikrushno's death (which occurred on 5 April 1924), questions arose as to the succession, and as to whether the plaintiff was in fact the adopted son of the late Sirdar. The Revenue Divisional Officer reported adversely to the plaintiff's claim; but the Board of Revenue having considered the evidence then adduced, most properly thought that the question was too complicated for a Revenue Court to decide, and directed that the petitioner (i.e., the plaintiff) should establish his claim in a competent Civil Court. The present suit was accordingly instituted on 3 August 1927, in the Court of the Subordinate Judge of Berhampur. The following pedigree shows the natural relationship of the parties : The respondents to the present appeal are the plaintiff and defendants 3, 5 and 6. A claim had been set up by defendants 1, 2 and 4, that Dondopani (defendant 2) was the adopted son of the late Sirdar, but both Courts in India have rejected this claim, and it may be ignored. The relief sought by the plaint was the allotment to the plaintiff of one-sixth of the joint property possessed by the undivided Hindu family of which the common ancestor was Brundabono. Obviously, the share which the plaintiff claimed could only be his if he were in fact the adopted son of Horikrushno. Of the issues framed in the suit only two are now material, viz. (1) whether the plaintiff is the adopted son of Horikrushno and (6) what are the respective shares of the plaintiff and defendants 1, 2, 3, 5 and 6 in the suit properties ? The Subordinate Judge found the first issue against the plaintiff. After a lengthy catalogue of the documentary and oral evidence, he states his decision in the following words : On a consideration of the whole evidence, I am of opinion that plaintiff has failed to discharge the burden that is on him to prove his alleged adoption in 1909, and even in the view that in fact the adoption did take place in 1909, it is invalid inasmuch as evidence on record conclusively shows that plaintiff was married before the date of the alleged adoption.

(2.) That in substance constitutes the judgment on the first issue. As regards the 6 issue, he decided that defendants 5 and 6 belonged to a divided branch, but that they together with defendants 1, 2 and 4 (the widow being entitled by will to Horikrushno's share), were entitled to the shares agreed upon between the parties as evidenced by a certain document, Ex. 31. A decree, dated 30 March 1929, was made accordingly. From that decree, three appeals were presented to the High Court of Judicature at Madras; (1) by the plaintiff asserting his adoption; (2) by defendants 5 and 6, asserting their title to a quarter share each in the entire family property ; and (3) by defendants 1 and 2 asserting the alleged adoption of Dondopani. Later, on the death of defendant 1, his other five sons (being with defendant 2, his legal representatives) were added as co- appellants in this third appeal. The High Court (Cornish and Varadachariar JJ.) delivered a careful and closely reasoned judgment. They dismissed the third appeal. As regards the two other appeals, they held that the plaintiff was the adopted son of Horikrushno, and that the shares in which the parties were entitled were as follows: One-sixth to the plaintiff as such adopted son, one sixth to defendant 1's branch, one-sixth to the third defendant's branch, and one-quarter each to the 5 and 6th defendants. A decree, dated 13 November 1935, was made accordingly. From that decree defendant 2 and the other legal representatives of Krupasindhu have appealed to His Majesty in Council and seek to have restored the decree of the Subordinate Judge. There are only two questions for decision in this case, viz. the question of the plaintiff's adoption, and the question of the shares in which the parties are entitled to the property. As regards the adoption, the Subordinate Judge, who had the advantage of seeing the witnesses who gave oral testimony before him, made the following observation in the course of his judgment : "There is a mass of oral evidence on record in this suit. The fight is between two brothers, and each is trying to secure the Sirdar's office for his own branch. Plaintiff has his own father-in-law, a rich and influential man, to back him up. Defendant 1 being the Sirdar at present, wields much influence, and there will be no lack of oral evidence in support of the respective versions on either side. The decision has to be reached in this case mainly on the documentary evidence based on probabilities."

(3.) The High Court agreed with his view and so do their Lordships. As to the oral evidence, it may be justly said that it the evidence favourable to the plaintiff could be accepted as truthful, the fact of adoption would be thereby proved beyond doubt; on the other hand, if the negative evidence given by various relations and connexions of the plaintiff were reliable, it would be difficult to understand how the plaintiff could have become the adopted son of the late Sirdar, without those relations and connexions having been aware of the adoption. Although, the testimony of witnesses who gave detailed evidence of the act and fact of the plaintiff's adoption was discredited by the Subordinate Judge, in some cases without reason assigned, and in others for what might appear to be insufficient reason, it will in their Lordships' opinion be safer, if possible, to arrive at a conclusion from a consideration of the documents and the inferences deducible therefrom. A few preliminary matters may be noted. The three brothers and their families, and defendants 5 and 6 (who had lost their father when very young) all lived together in one house, though occupying separate rooms. Krupasindhu seams to have taken a prominent part in the management of their affairs. The eldest brother, Horikrushno, the Sirdar, was a personage of wealth and importance : the Revenue Divisional Officer in his report to the Collector (in May l926), described him as "a big landed magnate," and said that he was looked upon "more or less as a petty potentate." There seems to be a suggestion by some witnesses that one or more sons had been born to the Sirdar and his wife Asili; on the other hand, both his will and an adoption deed executed by Asili contain statements that no male issue were ever born to them. However that may be, it is not disputed that no natural son was alive when the adoption is alleged to have taken place (viz. on 15 November 1909), or subsequently. Their Lordships now proceed to consider the relevant documents in the case. The first group relates to the plaintiff's school days. He was on 24 June 1909, admitted as a pupil in the training school at Russellkonda. The application form for admission (Ex. 2 (a)) is signed by his father Brojobondhu, and in the form Brojobondhu is given as the name of the pupil's "father or guardian." The same details appear in the school's register (Ex. 2) together with the additional information that the boy left the school on 7 February 1910. He then went to the secondary school at Russellkonda; and on 24 February 1910 i.e. after the date of the alleged adoption), Krupasindhu signed a form of application (Ex. 13 (a)) for his admission to that school. On the same day he signed similar forms for the admission of his own son Bhimo, and of Notoboro. In the two latter forms (Exs. 13 and 13 (b)) he gave his own name as the "name of parent or guardian"; but in the plaintiff's form he gave the name of Horikrushno. The plaintiff's natural father was then (and is still) alive; and, as the High Court observed, there is no conceivable reason other than the alleged adoption for the insertion by Krupasindhu of the name of Horikrushno as the parent or guardian of the plaintiff. In fact upon the original form the words "or guardian" have been struck out in ink which has not faded as has the ink in the other entries on the form; and this has led to a suggestion that the document has been tampered with. The document, however, was put in evidence by the defendants, and was produced from the custody of the school authorities. But the suggestion is of little moment, as even if the erasure of the words "or guardian" took place at some subsequent date the erasure in no way lessens the weight of the document, which came into existence many years before any question of succession to the Sirdarship had arisen.