MOSMAT CHANDRAWATI DEVI Vs. NEELKANTH BARNWAL

JUDGEMENT

(1.) This appeal has been filed against the judgment dated 31-1-1991 and decree dated 16-2-1991 passed in Title Appeal No. 6 of 1981 whereby and whereunder the learned Additional District Judge, 1, Deoghar allowed the appeal and set aside the judgement and decree of the learned court below and the suit was decreed.

(2.) The plaintiff-respondent brought the suit for declaration that the adoption deed dated 25-2-1977 was illegal, unlawful and not binding upon the plaintiff and for setting aside the deed of adoption and also for declaration that there was no such adoption of defendant 2nd party Radheyshyam by the defendant 1st party Mosmat Chandrawati Devi. As per plaint filed by the plaintiff, one Lakeshwar Modi of plaintiff family having no son or daughter adopted plaintiff Nilkantha Barnawal on Sri Basant Panchmi day in the year 1971 B.S. about 12 to 13 years ago after observing all the formalities by performing puja and necessary ceremonies and actual giving and taking ceremony in presence of agnates, relations, friends and villagers for spiritual benefit and for securing moksh and pinddan. It is further stated that adoption was illegal and unlawful as there was custom that brother's daughter's son in the caste and community of the adoptive father can be adopted and soon after adoption, the plaintiff lived with his adoptive father and mother, Mosmat Chandrawati Devi, defendant No.1 (now deceased) and looked after the agriculture as well as business works of adoptive parents. Lakeshwar Modi died on 29-12-1979 leaving behind his widow-defendant No. 1 and the plaintiff-adopted son as his legal heirs. In the meantime, the relationship between plaintiff and defendant first party became strained due to some misunderstanding in between them. Being an old lady having weak minds, she came in clutches of the defendant No. 2-4th party Jagdish Modi and his wife Smt. Bhona Devi, defendant No. 3 who persuaded her for taking their son Radheyshyam Modi-defendant No. 2 as her son and under their influence, defendant No. 1 executed a deed of adoption on 25-2-1977 in favour of his son Radheyshyam Modi, defendant-2nd party and also got it illegally registered at Deoghar on the same day by ignoring legal provisions of Hindu Adoptions and Maintenance Act,1956. It is asserted on behalf of the plaintiff that neither Puja nor any kind of ceremony was performed by the defendant- first party nor there was any actual ceremony of giving or taking of the so-called adopted son Radheyshyam Modi as required under the law and the said adoption deed is forged and fabricated and in fact, Radheyshyam Modi was not aged 13 years at the time of adoption; rather he was aged 18 years at the time of adoption. The plaintiff came to know about deed of adoption on 30-4-1977 and has filed this suit for apprehending injury to the right, title and interest to the property of Lakeshwar Modi and for future litigation and troubles.

(3.) On the other hand, defendant-appellants Nos. 1, 2 and 3 filed separate written statement denying allegation of the plaintiff-respondent in their respective written statement. Further, no written statement was filed on behalf of the defendant No. 4. The contesting defendants have filed separate written statement. Their case is more or less is same against the plaintiff and all the defendants have admitted correctness of the genealogy table accepting the statement of the plaintiff describing himself as adopted son of Lakeshwar Modi in the plaint. Defendants have denied that Nilkanth Barnawal was ever adopted by Lakeshwar Modi and his wife defendant No. 1 during their lifetime nor any ceremony was observed in this connection. They have also denied the fact that they have managed property of the defendant No. 1. The defendants have made out a case that Lakeshwar Modi has never adopted Nilkantha Barnawal or any son till he was alive. They also denied existence of custom in the family to adopt brother's daughter's son in case of adoption. On the other hand, they have alleged that there was no such custom and adoption from such relationship was prohibited under law and the plaintiff was totally incapable of being adopted. They have further stated that all ceremonies were held for adoption of Radheyshyam and allegation that he was 18 years old at the time of adoption is wrong; rather he was aged 13 years at the time of adoption and all rituals such as observance and formalities of taking over and giving over ceremony was observed.