The judgment emphasizes the importance of proving the execution of a gift deed and the requirement of attesting witnesses under Section 68 of the Indian Evidence Act, as well as the need to establish adoption and voluntary execution of the deed.

JUDGMENT :

Aruna Suresh, J. - Appellant has preferred this appeal against the judgment dated 9.8.1994 and decree dated 23.8.1994 passed in T.A. No. 4/93 by the First Appellate Court thereby confirming the judgment dated 6.11.1992 and decree dated 11.11.1992 of the Second Subordinate Judge, Cuttack.

2. Plaintiff (appellant herein) filed a suit through his natural mother, Jyostsnamayee Mohapatra against the State (respondents herein) i.e. defendant No. 1 to 3 and his adoptive father Jogendranath Pani (defendant no. 4) since deceased seeking following reliefs:

(a) that let it be declared that the deed of gift dated 18.2.1981 executed by defendant no. 4 in favour of defendant no. 2 in respect of schedule "A" of the property is fraudulent and illegal, null and void and to be set aside.

(b) that the possession of the suit property described in schedule "A" of the plaint be delivered to the plaintiff through the process of the Court.

(c) that let the cost of the suit be decreed against the defendants.

INDIAN LAW REPORTS, CUTTACK SERIES (2011)

(d) that any other relief or reliefs which is deemed and proper be granted in favour of the plaintiff against the defendants.

3. Case of the plaintiff in brief is that he is the natural born son of Biranchi Narayan Mohapatra and Jyotsnamayee Mohapatra. Jyotsnamayee Mohapatra is the natural born daughter of Jogendranath Pani (defendant no. 4). He was adopted by Jogendranath Pani. His adoptive father owned ancestral property No. 132 Sabik Plot No. 129 AO. 14 decimal, Plot No. 130 AO. 07 decimal which was the residential house at District-Cuttack, P.S.-Mahanga, Mouza Jankoti, corresponding to Consolidation Khata No. 412, Consolidation Plot No. 129, AO. 14 decimal; Plot No. 130, AO. 07 decimal. Plaintiff is legally entitled to get half share in the said properties as the family is ruled under the Mitakhyara Principle of Hindu Law.

4. In the garb of lease deed, a gift deed was executed on behest of Ashalata Das, sister-in-law of Jagannath Pani in favour of defendant no. 1 to 3 for running a Homeopathic dispensary. Natural mother of the plaintiff later on came to know of the fact that instead of lease deed, a gift deed dated 18.2.1981 was executed by defendant no. 4 when, she obtained a certified copy of the said document. Alleging that the gift deed dated 18.2.1981 is a sham and fraudulent document, the suit was filed.

5. Defendants no. 1 to 3 contested the suit of the plaintiff and filed joint written statement. Defendants disputed adoption of the plaintiff by Jogendranath Pani. As per their averment, the gift deed was executed by Jogendranath Pani voluntarily and he put his signatures on the same after knowing its contents and the deed was got registered and was acted upon. It is also averred that Jogendranath Pani had permitted the defendants to run a Homeopathic dispensary in the suit property with effect from 1.1.1981 and the gift deed was executed by him subsequently after the permission was granted by the Government to receive donations for running a Homeopathic dispensary. Jogendranath Pani had none else in the family and therefore, he voluntarily gifted the suit property to the Government for public charitable purpose i.e. for running a Homeopathic dispensary. It was also averred that the suit was barred by period of limitation and the plaintiff had no cause of action to file the suit and also that the suit, as filed was not maintainable.

6. The donor (defendant no. 4) was duly served with summons for settlement of issues but he did not care to appear and contest the suit. Hence, he was proceed ex parte by the trial court vide order dated

Jyotirmay Pani -V- State of Orissa (A. Suresh, J.)

17.11.1986. He died on 11.5.1989 during the pendency of the suit and his name was deleted from the record vide order dated 19.11.1990.

7. Trial Court held that plaintiff had failed to prove himself to be the adopted son of defendant no. 4 at the relevant point of time when the gift deed was executed and the suit was bar