Decided on April 19,1973

Sankhi Bewa Appellant
Chandra Majhi Respondents


G.K.Misra, J. - (1.) ONE Kusha Majhi had two wives Gouri and Pama. Kusha died near about 1946 and Pama in 1956. Gouri died near about 1962. The Plaintiff claims to be son of Kusha through Pama. Gouri had admittedly no issues. The disputed properties belong to Kusha. The Plaintiff 's suit was for declaration of tide and recovery of possession. There was a proceeding under Section 145, Code of Criminal Procedure in between the Plaintiff and the Defendant which terminated in favour of the Defendant. The Plaintiff 's case was that Kanda Majhi, the husband of the Defendant, was kept, as a servant by Kusha ever since his childhood. The Defendant, on the other hand, contested the suit saying that Kanda was adopted by Kusha as Gouri bore no child to him and that the Plaintiff was not the son of Kusha nor Pama was his married wife.
(2.) THE learned subordinate Judge held that the Plaintiff was the son of Kusha and Kanda was kept by Kusha in the family as a servant and he disbelieved the story of adoption of Kanda, and accordingly decreed the Plaintiff 's suit for declaration of title and recovery of possession. Mr. Dasgupta appearing for the Defendant assailed the finding of the learned Subordinate Judge accepting the Plaintiff as the son of Kusha through Pama as his second married wife. Though Mr. Dasgupta assailed the finding nothing substantial was urged by him to satisfy us that the finding recorded by the learned Subordinate Judge was contrary to law or not based on materials on record. It is therefore, unnecessary for us to repeat the reasoning given by the learned subordinate judge in support of the finding that the Plaintiff is the son of Kusha Majhi. We accordingly accept that finding.
(3.) THE only question which was seriously canvassed was whether Kanda was the adopted son of Kusha. It is to be noticed that the Defendant also did not come out with the full truth in urging that the Plaintiff was not the son of Kusha. Though the Defendant did not admit the Plaintiff as the son of Kusha, she is not precluded from presenting her claim that her husband was the adopted son of Kusha. The onus rests very heavily on her to establish adoption which displaces the natural fine of succession. There is no documentary evidence in this case. The Defendant shall have to ordinarily prove that there was giving and taking ceremony which alone would validate the adoption. Admittedly there is no evidence of giving and taking. The Plaintiff was born in 1914. Kanda, as it transpires from the evidence, was about 6 to 10 years older than the Plaintiff. The defence story is that the adoption took place when Kanda was hardly 1 or 2 years old. The adoption if any, took place a bout 60 years back. It is, therefore, an ancient adoption and the evidence of giving and taking even if true has been obliterated. The case must, therefore, be decided on the basis of oral evidence as to treatment of Kanda in the family of Kusha over a length of years.;

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