IMPORTANT POINT
Evidence to support adoption should be such that it is free from all suspicion of fraud and so consistent and probable.

Dr. A.K. Rath, J.—This is an appeal against the judgment and decree dated 27.12.2008 and 9.1.2009 respectively passed by learned Additional District Judge, Talcher in R.F.A. No.1 of 2007 confirming the judgment and decree dated 21.12.2006 and 9.1.2007 respectively passed by learned Civil Judge (Sr. Division), Talcher in Title Suit No.107 of 2001.

2. The appellant as the plaintiff instituted T.S.No.107 of 2011 in the court of the learned Civil Judge (Sr. Division), Talcher for declaration that he is the legal heir and successor of Jataka and Purandar Behera. Case of the plaintiff is that schedule ‘A’ and ‘B’ properties originally belonged to Purandar Behera and Panu Behera. Jatak Behera after being deserted by her first husband, Banamali remarried to Purandar Behera. Purandar and Jatak were issueless. They adopted Bhadri Behera son of Badal Behera and Narangi as their son. Purandar and Badal were brothers. There were giving and taking ceremony. After adoption, Bhadri used to reside with his adoptive parents till his death. He performed obsequies of his adoptive father. He was in possession of the land fell to the share of Purandar. Due to his illness, he could not take steps in the settlement operation to record the land in his favour. The plaintiff being the natural born son of Bhadri Behera succeeded to the property. The defendants are not legal heirs of Purandar. When the defendants claimed to be the legal heirs of Purandar, he instituted the suit.

3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiff is no way related to the deceased Jatak Behera. The defendants are the legal heirs of Jatak Behera and Banamali Behera. After death of Banamali, Jatak-mother of defendant no.1 remarried to Purandar. Purandar had no child through Jatak Behera. They adopted the children born through Jatak Behera and Banamali. Purandar died in the year 1967. Jatak had not adopted any child. After death of Purandar, father of the plaintiff tried to garb the property of Jatak. A panchayat meeting was convened. Thereafter father of the plaintiff voluntarily withdraw his claim.

4. Stemming on the pleadings of the parties, learned trial court struck seven issues, out of which, issue no.3 is pivotal one. The same is:—

“(3) Whether the plaintiff is the legal heir/successor of Jataka Behera and Purander Behera ?”

5. To substantiate the case, the plaintiff had examined five witnesses and on his behalf, four documents were exhibited. On behalf of the defendants, six witnesses were examined and four documents had been exhibited.

6. The learned trial court negatived the plea of adoption of Bhadri Behera and dismissed the suit. The plaintiff unsuccessfully challenged the same in the court of the learned Additional District Judge, Talcher in R.F.A.No.1 of 2007, which was eventually dismissed.

7. Mr. S.K. Samatray, learned Advocate for the appellant, submitted that the learned courts below have failed to appreciate that it is a case of ancient adoption. No direct evidence was available. The plaintiff had successfully established that his father Bhadri was adopted by Purandar and Jatak, but the claim was negatived on untenable and unsupportable grounds. The submission is difficult to fathom.

8. In the case of Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504, the apex court held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the 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. In Rahasa Pandiani (dead) by L.Rs and others v. Gokulananda Panda and others, AIR 1987 SC 962, the apex Court held that if there are any suspicious circumstances, just as the propounder of