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1993 Supreme(Ori) 247
IN THE HIGH COURT OF ORISSA
S.C. Mahapatra, J.
DOCTOR NAHAK - APPELLANT
Versus
BHIKA NAHAK AND ANOTHER - RESPONDENT
F.A.O. No. 113 of 1978
Decided On : 13-07-1993
Y.S.N. Murty, for the Appellant; B. Pal, N. Prusty and Ashok Mohanty, for the Respondent
In order to prove adoption, the plaintiff must provide clear and convincing evidence of the giving and taking of the child, as well as the consent of the natural parents. The absence of the natural mother's testimony and the failure to provide a satisfactory explanation for this omission weakens the plaintiff's case.
Headnote:
HINDU ADOPTION AND MAINTENANCE ACT, 1956 - ADOPTION - SECTION 16 - ADOPTION DEED - VALIDITY - REQUIREMENTS - PRESUMPTION - REBUTTAL - EVIDENCE - BURDEN OF PROOF - ADMISSION - INTERPRETATION - VOTERS' LIST - RELEVANCE - IMPROBABILITY - CONSIDERATION.
Fact of the Case:
Plaintiff claimed to be the adopted son of defendant No. 1 and filed a suit for partition. Defendant No. 1 denied the adoption and claimed that the adoption deed was executed under false pretenses and later canceled. The trial court dismissed the suit, finding that the plaintiff failed to prove his adoption.
Finding of the Court:
The court held that the plaintiff failed to prove his adoption by defendant No. 1. The court found that the oral evidence adduced by the plaintiff was not credible and that the documentary evidence, including the adoption deed and the voters' lists, did not support the plaintiff's claim. The court also found that the plaintiff's natural mother was not examined as a witness and that the plaintiff failed to provide a satisfactory explanation for this omission.
Issues: 1. Whether the plaintiff was adopted by defendant No. 1? 2. Whether the adoption deed was valid? 3. Whether the voters' lists were sufficient evidence to prove adoption?
Ratio Decidendi: 1. The court held that the plaintiff failed to prove his adoption by defendant No. 1. The court found that the oral evidence adduced by the plaintiff was not credible and that the documentary evidence, including the adoption deed and the voters' lists, did not support the plaintiff's claim. The court also found that the plaintiff's natural mother was not examined as a witness and that the plaintiff failed to provide a satisfactory explanation for this omission. 2. The court held that the adoption deed was not valid because it did not contain the date of adoption and was not executed by both the natural father and the adoptive father. The court also found that the plaintiff failed to rebut the presumption that the adoption deed was executed under false pretenses. 3. The court held that the voters' lists were not sufficient evidence to prove adoption because the plaintiff failed to prove that they were prepared in the regular course of official business.
Final Decision: The court dismissed the plaintiff's appeal and upheld the trial court's decision to dismiss the suit for partition.
JUDGMENT :
S.C. Mohapatra, J.
Plaintiff is the appellant against dismissal of a suit for partition.
1. Plaintiff is son of Anand. Defendant No. 1 Bhika is elder brother of Anand. Dhobani (defendant No. 2) is daughter Bhika. Case of the plaintiff is that when he was aged 10 years, Bhika adopted him on 28-1-1955. Bhika executed a registered deed of adoption on 9-10-1969 (Ext. 1) acknowledging the adoption. However, on 6-9-1976 Bhika cancelled the deed of adoption by another registered document and gifted his property to his daughter (defendant No. 2). Immediately thereafter suit was filed for partition on 15-10-1976.
2. Case of defendants is that Bhika did not adopt plaintiff at any time. He being an old and illiterate man was assured by his younger brother of all help and assistance in his management of properties on condition that he executed the adoption deed in token of his son who with his wife would stay with defendant No. 1, cook food for him and serve, he executed the document recitals of which are not true. Being convinced later that the document was got executed by him to grab his properties, defendant No. 1 cancelled the same by another registered document voluntary. Defendant No. 1 had executed one gift deed in favour of his daughter on 28-4-1958 and another on 6-9-1976 out of this own volition and defendant No. 2 is in possession of the said properties.
3. Plaintiff's claim depends on his adoption by defendant No. 1. Since natural line is disturbed by adoption plaintiff is to prove the same. Plaintiff examined himself as P.W. 1, his father Anand as P. W. 2, a priest as P.W. 3, a co-villager as P.W. 4 who claimed to be an invitee to the adoption being related and the front door neighbour as P.W. 5 to prove adoption. He also proved the deed of adoption (Ext. 1), deed of cancellation (Ext. 3) and three voters list of 1973 (Ext 2/a), another voter list dated 10-12-1974 (Ext. 2) and a third voters list of 1975 (Ext. 2/b). Defendants examined defendant No. 1 as D.W. 1 to deny the adoption. They examined D.W. 2 a relation who is attester witness to the gift deed to prove voluntariness of defendant No. 1. Both the deeds of gift were proved and marked as Exts. A and B.
4. On consideration of materials on record, Trial Court held that plaintiff is not the adopted son. Trial Court disbelieved the oral evidence adduced in this regard, drew advise inference for non-examination of person who were claimed to be present by other witnesses. It gave importance to the fact that in Ext. 1 plaintiff was described as son of Anand Naik. Entries in voters' lists describing plaintiff as son of defendant No. 1 was not also given importance. Finding that plaintiff not being adopted son has no locus standi to object to the deed of gift, it was held in evidence that gift was voluntary.
5. In case adoption of plaintiff is disproved, suit is to be dismissed. This is not disputed. Where natural father of the party is alive and other witnesses are also available to prove giving and taking, documents may corroborate their evidence of adoption, but will not be basis for a finding of adoption. As has been held in the decision of Supreme Court reported in Kishori Lal Vs. Mst. Chaltibai physical act of giving and taking is essential for a valid adoption. Normally, evidence of natural father who is to give is of great importance. Where, however, the person who is stated to have taken in adoption denies the adoption, clear evidence of giving and taking is necessary to be adduced to corroborate the natural father and clear circumstances which would lead to an inference that denial by the person to have taken in adoption is not correct, are to be brought to record. In this case, natural mother who is alive has not been examined. Trial Court has found that person who is related to both parties have not been examined. Explanation that he was suffering from gout was not accepted to be cogent since he could have been examined in Commission. Priest who was examined did
