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ORISSA HIGH COURT
Dr. A.K. Rath, J.
Maheswar Mukhi (dead) by L.Rs & Ors. —Appellants
versus
Sanu @ Sanatan Mukhi —Respondent
RSA No.315 of 2007
Decided on 26.8.2016
Counsel for the Parties:
For the Appellants:Mr. Ajodhya Ranjan Dash, Advocate
IMPORTANT POINT
Documents acknowledging adoption or containing recital regarding giving and taking of adoption are not sufficient themselves to constitute legal adoption in absence of evidence about actual giving and taking of child.
Headnote:Hindu Adoptions and Maintenance Act, 1956—Sections 6 and 10—Adoption—Proof of— Adoption results in changing course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth—Documents acknowledging adoption or containing recital regarding giving and taking of adoption are not sufficient themselves to constitute legal adoption in absence of evidence about actual giving and taking of child— Performance of funeral rites will not sustain validity of adoption unless it clearly appears that act itself was performed under such circumstances as would render it perfectly legal—Plaintiff has not proved factum of giving and taking ceremony by adducing cogent evidence and has taken inconsistent plea with regard to date of adoption—No independent witness had been examined to prove giving and taking ceremony—Deed of adoption is not a substitute for actual giving and taking ceremony with regard to alleged adoption—Evidence adduced by plaintiff do not inspire confidence—Appeal dismissed. (Paras 7 to 12, 14 and 15)
Result: Appeal dismissed.
Dr. A.K. Rath, J.—This is a plaintiffs’ appeal against confirming judgment.
2. Maheswar Mukhi instituted T.S. No.69 of 1999 in the court of the learned Civil Judge (Junior Division), Baripada for a declaration that he is the adopted son of Radha Mukhi and permanent injunction impleading the respondent as defendant. The case of the plaintiff is that one Radha Mukhi and his wife Chintamani Mukhi were issueless. They approached his natural father-Fakir Mukhi to give one of his son in adoption. His natural parents agreed to give him in adoption. On the day of Sripanchami of the year 1973, he was adopted by Radha Mukhi and his wife as their son. There was a giving and taking ceremony. His natural parents handed over him to his adoptive parents and his adoptive parents accepted him as their son. At that time he was nine years old. The further case of the plaintiff was that acknowledging the adoption, Radha Mukhi executed a registered deed of adoption in the year 1990. Since then he was brought up by Radha Mukhi and his wife as their son. Radha Mukhi performed his marriage. He stayed in the house of Radha Mukhi. On the death of Radha Mukhi and his wife, he performed their obsequies ceremony. It is further stated that the defendant became inimical to him and his animosity towards him grew after the death of Radha Mukhi and his wife. The defendant instigated other family members of Radha Mukhi not to treat him as the adopted son of Radha Mukhi and dissociated them from keeping any relationship with him. It is apt to state here that during pendency of this appeal, the original plaintiff died; whereafter his legal heirs and successors have been substituted as appellant nos.1 to 4.
3. Pursuant to issuance of summons the defendant entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendant is that he is the brother of Radha Mukhi. Radha Mukhi was a bachelor. Radha Mukhi had not adopted the plaintiff as his son. Pata Mukhi, mother of Radha Mukhi and Syama Mukhi, nephew of Radha Mukhi were staying with Radha Mukhi. They were looking after him. After the death of Pata, Shyama was looking after him most of the time. Chintamani Mukhi was the wife of one Sama Jena, who was the neighbour of Radha Mukhi. The plaintiff is a stranger to the family of Radha Mukhi and as such there was no question of the plaintiff performing the obsequies ceremony of Radha Mukhi.
4. Stemming on the pleadings of the parties, the learned trial court struck six issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf five documents were exhibited. The defendant had examined two witnesses and on his behalf three documents were exhibited. On an anatomy of pleadings and threadbare evidence on record, both oral and documentary, learned trial court held that the plaintiff failed to prove that he is the adopted son of Radha Mukhi. Held so, learned trial court dismissed the suit.
5. Assailing the judgment and decree of the learned trial court, the plaintiff filed RFA No.61 of 2005 in the court of learned District Judge, Baripada, which was subsequently transferred to the Addl. District Judge, Baripada and renumbered as RFA No.24 of 2007, which was eventually dismissed.
6. Criticising the judgment, Mr. A.R. Dash, learned counsel for the appellants, argued with vehemence that the natural father of the plaintiff was examined as P.W.2. P.W.2 stated that there was a giving and taking ceremony. By the time the suit was filed, the adoptive parents were dead. In view of the same, the courts below fell into patent error in not considering the evidence of P.W.2 to hold that there was a giving and taking ceremony. He submitted that the deed of adoption executed by Radha Mukhi vide Ext.3 shows that the plaintiff was adopted by Radha Mukhi in the year 1990. But then, on untenable and unsupportable grounds, learned courts below did not accept the same. He further submitted th
