G.K.MISRA, C.J. -
(1.) THE following genealogy as appended to the plaint would show the relationship amongst the plaintiff, defendants 1 to 3 and defendants 4 to 8. Dinabhandhu and Minei were brothers. Puni Bewa (D-3) is the widow of Hari. Defendant 1, plaintiff and defendant 2 are the sons of defendant 3. Defendants 4 to 8 belong to the branch of Minei. Admittedly the Branches of Dinabandhu and Minei are separate in status. Plaintiff filed the suit for partition claiming one-sixth share in Schedule B properties consisting of 15.29 acres asserting that they are the joint properties of the two branches of Dinabandhu and Minei. He claimed one-third share in Schedule C properties measuring 3.38 acres alleging that they are the self-acquired properties of the plaintiff and defendants 1 to 3 acquired out of joint family funds and joint effort and exertion of the members irrespective of their being recorded in the names of different members of the family. Schedule D properties are movables in which the plaintiff claims one-third share. Thus in the prayer for partition, plaintiff did not state that his mother, defendant 3, is entitled to a share also.
(2.) DEFENDANTS 1 to 3 filed a joint written statement on the following averments. Plaintiff was adopted by deceased Govind Chandra Sahu in 1932. He was living in the family of his adoptive father and had no connection with the family of defendants 1 to 3. There has been en amicable partition by metes, and bounds between the branches of Hari and Minei. The properties under lots 5 to 8 of Schedule C and those under lots 16 and 18 of Schedule B are the separate and self-acquired Stridhan property of Sita Dei, wife of defendant 1, who is not a party to the suit, and neither the plaintiff nor the defendants 1 to 3, have any right title or interest over the same. The properties covered under lots 1 to 3 of Sen. C are the self-acquired properties of defendants 1 and 2 which they purchased on 6-7-1958 out of their own separate earnings and not out of their joint family funds, and properties under lot No. 4 of Schedule C belong to Magu Sahu and others. Even if plaintiff's own allegation is accepted, plaintiff IB entitled to one-eighth share in Schedule B and one-fourth share in Schedule C properties.
The learned Subordinate Judge on an examination of the evidence on record held that the plaintiff was the adopted son of Govind Chandra Sahu and he was not in possession of any portion of the suit land since his childhood. He accordingly dismissed the plaintiff's suit.
In appeal our learned brother B.K. Ray, held that plaintiff was not the adopted son of Govind Chandra Sahu. He accordingly allowed the appeal and decreed the plaintiffs suit for partition granting one-sixth share in Schedule B and one-third share in Schedules C and D of the plaint. Defendants 1 to 3 are the appellants challenging this appellate decree.
Mr. Sinha, for the appellants, raised two contentions, (i) The finding of the learned Single Judge that plaintiff was not adopted by the late Govind Chandra Sahu is erroneous on facts and in law: and (ii) even assuming that the finding on adoption is correct the further finding giving one-sixth share in Schedule B and one third share in Schedules C and D to the plaintiff is not correct.
The second finding cannot be sustained on the very face of it, and Mr. Mohanty concedes the position. If partition is to be allowed, each of plaintiff and defendants 1 to 3 would be entitled to one-eighth share of Schedule B properties and one-fourth share in Schedules C and D properties, as in a partition amongst the sons, the mother is also entitled to a share equal to that of a son.
The main question for consideration in this appeal is whether plaintiff was adopted by Govind Chandra Sabu in 1932. Before examining the question of adoption. It would be appropriate to clarify the scope of Jurisdiction and power in a Letters Patient Appeal against the judgement of a single Judge deciding a First Appeal. The legal position is no longer res integra, and is concluded by the decision of the Supreme Court in Civil Appeal No. 232/61 disposed of on 11th January, 1963 in the case of Alapati Kasi Viswanatham v. A. Sivarama Krishnayya. In that case, their Lordships made the following observations :
"A Letters Patent Appeal from the judgement of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under Section 100 of the Code of-Civil Procedure, and therefore it cannot be held that a Letters Patent Appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent Appeal was from a decision of a learned Single Judge in a second appeal to the High Court In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent Appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two Courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the Letters patent Bench was not in law entitled to reverse the concurrent findings of fact must be negatived."
From the aforesaid passage it is clear that sitting in appeal over the judgement of the learned Single Judge in a first appeal, we are quite competent to fully go into the questions of fact and law, and the jurisdiction is not restricted in any manner.
The case of defendants 1 to 3 is that the plaintiff Govind Chandra Sahu in 1932. Adoption displaces the natural line of succession. Adoption can be valid if the ceremony of giving and taking of the plaintiff in adoption is satisfactorily established by defendants 1 to 3. The onus is very heavy on them. Ceremony of giving and taking is attempted to be proved in this case through the evidence of D.Ws. 1, 2 and 5. D.W. 1, Hadibandhu Sahu, is about 64 years' old. Defendants 1 to 3, plaintiff and Govind Chandra Sahu all belong to village Tarikunda. The village of D.W. 1 adjoins the village of the parties. Defendant 6 is the sister's son of D.W. 1. Hs has been on visiting terms with the parties since his 15th year of age. The Parties are his relations. He knew Hari Senapati the natural father of the plaintiff and Govind Chandra Sahu who are neighbours. His evidence is that he was present at the time of adoption. He saw the actual giving and taking. The natural lather, Hari, gave the plaintiff in adoption and Govind accepted him as his son, and since the date of adoption, plaintiff is staying in the house of Govind who got him married. He also deposes that after the adoption of plaintiff, Govind had two natural-born sons and that the adoption took place 2 to 3 days after Deva Snahn Purnima. After going through his evidences carefully, we are satisfied that he is a witness of truth. He is a relation of the parties, and was quite likely to have been invited to the adoption ceremony. His evidence had been disbelieved by the learned Single Judge by the following observation :
"He has kept no note of the Tithi or date when the adoption took place. He admits to have attended other adoption ceremonies subsequent to the adoption of the plaintiff, but curiously he does not remember the date or month of other adoptions whereas he remembers that the plaintiffs adoption took place, two to three days after Deva Snahn Purnima. He being directly related to defendant 5 is an interested witness, and his evidence cannot be accepted unless corroborated by other independent witnesses."
With great respect, we are not impressed by the aforesaid criticism. A witness cannot be disbelieved if he does not keep a .note of the Tithi or the date when the adoption took place. Adoption is of no concern to a relation, and there is no reason why a relation should be so over-zealous as to note the Tithi or the date of adoption of another relation. In, cross-examination he was asked whether he remembers the date or month of other adoptions he attended and the details thereof he failed to give. He might have attended other adoptions not as a relation but as a sight-seer. If he would have been put Questions with regard to specific adoptions and the reasons why he did not remember the details, he could have furnished satisfactory explanations. That criticism, based on a vague general question referring to denials of giving dates of other adoptions, does not impress us as a ground for rejecting the evidence of this witness. His evidence was rejected as being interested as he is related to defendant 6. Though defendant 6 supports the case of defendants 1 to 3 that plaintiff was adopted by Govind Chandra Sahu, by the decision of this case one way or the other defendant 6 would not gain. Accordingly neither defendant 9 can be said to be interested, and more so not D.W. 1, a relation of his. We are clearly of opinion that the learned Single Judge rejected the evidence of D.W. 1 on very unsatisfactory grounds.
Hari Bhoi (D.W.2) is a villager of the parties, He is about seventy year's old. He deposes to the ceremony of giving and taking. He also deposes to the fact that plaintiff used to call Govind as his father and Govind's wife as his mother. Being a villager he had the special means of knowledge to know the relationship between plaintiff. Govind and his wife which was evinced by plaintiffs conduct calling them as his father and mother. Such evidence is admissible under Section 50 of the Evidence Act. He worked as San-khua in the adoption ceremony and was a farm-servant of Govind. His evidence was discarded by the learned Single Judge on the following grounds :
"According to Ms evidence he left service as a farm-servant under Govind Chandra Sahu eight to ten years back before his deposition and he served under Govind Sahu for 3 to 4 years. It follows from the evidence of D.W. 2 that plaintiffs adoption took place about 13 to 14 years prior to his deposition in Court which was in the year 1966. But according to the defence case as per the written statement, the adoption took place in the year 1932. According to this witness the plaintiffs adoption took place three days after Deva Snhan-Purnima. This witness although admits in cross-examination to have witnessed other adoptions, is unable to say on what days those adoptions took place."
The first criticism of D.W. 2 is based on a mathematical calculation of the years given by the witness. These witnesses come from Mofussil. They generally have vague ideas of placing" incidents in correct year by calculation of years in relation to different incidents. We are not prepared to judge the evidence of this type of village witnesses by mathematical accuracy. The second criticism of his failure, in a general wav, to speak details of other adoptions is vulnerable to the same criticism which we have given In the case of D.W. 1. The criticism levelled against D.W. 2 by the learned Judge does not very much impress us. We are clearly of the opinion that the witness is reliable. Being a villager he was quite competent to attend the adoration ceremony and his statement in Court inspires confidence in us.
Puni Bewa (D.W. 5) aged about 65 years is the natural mother of the plaintiff and defendants 1 and 2. Her evidence is very straightforward. She is a witness of truth. It is difficult to imagine that she would disown her own son as having been adopted away unless the faction of adoption is true. Her evidence was discarded by the learned Single Judge by the following passage :
"She admits that after plaintiffs adoption Govind's wife gave birth to two sons of whom the first was born 8 to 9 years after the plaintiffs adoption. This evidence directly contradicts the documentary evidence, viz., Exhibit G relied upon by the defendants which shows that the difference of age between the plaintiff and the first-born son of Govind is only two years. According to her the plaintiff was adopted in the month of Falgun, which directly contradicts the evidence of D.Ws. 1 and 2. She is not able to give the name of the family Driest, and according to her the family priest did not attend the adoption ceremony. There is no reason why in a ceremony like this, the family priest was avoided and a stranger who is alleged to be dead was asked to officiate as a priest."
We are not also impressed by the aforesaid criticism of the evidence of D.W. 5. She is a village lady of 65 years. Admittedly she is the immediate neighbour of Govind Chandra Sahu. Whether there was adoption or not ordinarily there is a room for confusion on her part to say the difference in age between the plaintiff and the two natural-born sons of Govind. The difference that is found out on comparison of her statement with that in Exhibit G must clearly be one of confusion. Evidence of village witnesses cannot be discarded on the basis of mathematical calculation and lack of accuracy. The next criticism is that she refer-ed to the adoption taking in the month of Falgun which is not strictly accurate. Her exact statement is :
"Plaintiff was adopted m the month of Falgun, in the month when paddy is sown."
She had already stated that it was about three days after Deva Snahn Purnima. The second part of the aforesaid sentence fits in with her deposition in the examination-in-chief that the adoption took place two to three days after Deva Snahn Purnima. Paddy is sown in the month of Jyastha when Deva Snahn Purnima occurs. The learned Judge should not have omitted a Part of the statement and relied upon the other part giving the month as Falgun, which obviously is out of confusion. We take the aforesaid statement in the cross-examination as fitting in with her deposition that the adoption took place three days after Deva Snahn Purnima.
The categorical statement of D.Ws. 1, 2 and 5 is that one Bhikari Satpathy who dead attended the adoption ceremony. No question was put to D.W. 5 in cross-examination as to why the family priest did not attend the adoption ceremony, and consequently, no fid-verse inference can be drawn on that count if such a question would have been put to her, she might have replied by saying that either the family priest was ill or was absent on some other duty. Having the adoption ceremony performed through Bhikari Satpathy and not through the family priest is not therefore an adverse circumstance against the story of adoption. We have thus discussed fully the various criticisms advanced by the learned Single Judge against the evidence of D.Ws. 1, 2 and 5. We are not impressed that he took the correct view. The criticisms are based on purely technical grounds and mathematical calculations. We are impressed that these three witnesses are witnesses of truth and their evidence as to the manner in which tile adoption took place is quite natural and inspires confidence in us.
D.Ws. 1 and 5 admitted in a straightforward manner that P.Ws. 2 and 5 were present at the adoption ceremony. P.Ws. 2 and 5, however, denied to have been present in the ceremony. We have examined their evidence carefully and we do not place any reliance on them. Defendant 1 filed a criminal case under Section 379, L.P.C., against P.W. 2 and plaintiff was a witness in that criminal case on behalf of P.W. 2. P.W. 2 is interested in the plaintiff. Similarly, P.W. 5 was also a witness against defendant-1 in favour of the plaintiff in that very criminal case.
Our conclusion that the giving and taking ceremony has been satisfactorily established by the evidence of D.Ws. 1, 2 and 5 is fortified by the documentary evidence proved in this case. These documents would be examined is chronological order.
(3.) EXHIBIT F dated 6-5-1935 is the plaint in T. S. No. 205 of 1935 filed in the Court of the 1st Munsif, Cuttack. The plaintiff, who was a minor filed the suit as the adopted son of Govind Sahu through his maternal uncle Jadu Sahu as next friend to restrain defendant 1 of that suit from taking possession of the property in Ex. Case No. 225/34 arising out of O. S. 180/32. The plaintiff in that suit wanted to take delivery of possession of the property of Govind Sahu, and filed the plaint. EXHIBIT F for a declaration that he as the adopted son of Govind Sahu was not bound by the decree against Govind Sahu and asked for an injunction against the decree-holder from taking delivery of possession. On 29th of November, 1935, a sale-deed was executed by the plaintiff through Govind Sahu as the father-guardian for repayment of the dues decree in O. S. 180/32 in respect of which the afore-said execution case had been levied. On 30th November, 1935, O. S. No. 203/3S was compromised after the sale-deed. EXHIBIT C was executed by the plaintiff in favour of the decree-holder. The compromise decree is EXHIBIT J in which the plaintiff was represented through his maternal uncle. It would thus be seen that as early as 1935, three years after the alleged adoption in 1932, deceased Govind Chandra Sahu admitted the plaintiff as his adopted son. In EXHIBITs F and J. Govind Chandra Sahu was a defendant and did not challenge the plaintiff's claim in that suit on the footing of his being an adopted son of the former. EXHIBIT G is a document to which Govind Sahu himself was a party. He acted as a guardian for the plaintiff in transferring some property and described the plaintiff as his adopted son. These documents are admissible in evidence under Section 32(3) and (5) of the Evidence Act By admitting the adoption, the deceased Govind made a statement against his own pecuniary and proprietary interest as the plaintiff would get a share in his property. Under EXHIBIT G the sale-deed was executed in respect of the property belonging to Govind. The statement is also admissible under Section 32(5) as the statement relates to the existence of relationship between the plaintiff and Govind by adoption and Govind had special means of knowledge of knowing it and the statement was made before the question in dispute was raised. The aforesaid admission is a strong piece of evidence and is binding on the plaintiff. He has not been able to explain that the admission was wrong.
Exhibit A dated 5-2-1945 a usufructuary mortgage-bond executed by defendant 3 as guardian of defendants 1 and 2 in respect of their joint family property." The plaintiff has not been included as one of the transferors. Though the document does not constitute an admission of the plaintiff, it is admissible showing the conduct of defendant 3, the natural mother, that if in fact the plaintiff had not been adopted away, in natural course of events, he would have been made a party to this usufructuary mortgage-bond. Mr. Mohanty pointed out that defendant 7 identified D.W. 3 in Exhibit A and the document would not be given much importance. Defendant 7 was a member of the family and was competent to identify defendant 3. Exhibit A though not a very strong piece of evidence against the plaintiff as for his exclusion from the sale-deed he had no responsibility, yet it is a piece of admissible evidence to show that if he had not been adopted away, he would have been made a party to the document by the natural mother. (See AIR 1964 Orissa 117, Balinki v. Gopalkrishna).
Exhibit 1 dated 6-3-1948 is a sale-deed jointly executed by defendants 1 and 2, and plaintiff through his mother-guardian, defendant 3, defendants 4 and 5 through their mother-guardian and defendants 6 to 8 in favour of outsiders. Exhibit 2 of the same date is another sale-deed executed by the aforesaid vendors in favour of P.W. 3 and his brother. Strong reliance is placed by Mr. Mohanty on these two documents to show that the plaintiff hag been described in both these documents as the son of Defendant 3. The mother (D.W. 5) in her evidence states that she does not know anything of these two documents and they were never read over to her and she did not know the contents thereof. Admittedly, D.W. 5 is an illiterate lady (See P.W. 2's evidence). The onus is very heavy on the plaintiff to establish that Exhibits 1 and 2 were read over and explained to defendant 3 before she put her thumb-marks on them. There is absolutely no such evidence. In the circumstances, we have no other alternative but to hold that Exhibit 1 and 2 had not been executed by defendant 3. The statement in these two documents that the plaintiff was the son of defendant 3 cannot, therefore, be treated as an admission of defendant 3. The learned Single Judge rightly took feat view. The learned Judge, however, used both these documents adversely against defendants 1 to 3, as defendants 6 to 8 executed Exhibits 1 and 2 wherein the plaintiff has been described as the son of defendant 3. The conclusion of the learned Single Judge is contrary to law. Even though defendants 6 to 8 have executed Exhibits 1 and 2, the statement therein that the plaintiff is the son of defendant 3, is not an admission of theirs in the eye of law. As pointed out in AIR 1963 Orissa 45, (Harihar v. Nabakishore) it is not by virtue of a person's relationship to the litigation that the admission of one can be used against the other. It must be as used because of some privity of title or of obligation. In order to utilise the statement of defendants 6 to 8 against defendants 1 to 3, the plaintiff has to establish that they were all persons jointly interested in the disputed property, and the admission of defendants 6 to 8 would affect their own interest if they say that the plaintiff had been adopted away, and did not continue to be the son of defendant 3. The general rule is that an admission can only be taken in evidence against the party making it and not against any other party. The statement in defence by one defendant cannot be read in evidence either for or against his co-defendant unless they have joint interest. Admittedly defendants 4 to 8 would not gain or lose, whether the plaintiff is the adopted son of Govind Sahu or not. They are, therefore, not jointly interested and have no privity of title with defendants 1 to 3. Thus, though defendants 6 to 8 are parties to Exhibits 1 and 2, their acceptance of the position that plaintiff continued to be the son of defendant 3 does not adversely affect the right title or interest of defendants 1 to 3 in any manner. Law is well-settled that an admission is a substantive evidence of the fact admitted. In order to prove it the attention of the person admitting it need not be drawn to it before it becomes substantive evidence. The weight to be attached to an admission made by a party is a matter different from its use as admissible evidence : (See AIR 1966 SC 405. Bharat Singh v. Mst. Bhagirathi). On the aforesaid analysis, Exhibits 1 and 2 do not constitute admissions of defendants 1 to 3 as the documents were not read over and explained to defendant 3 and they are not admissions of defendants 1 to 3 as both sets of defendants are not jointly interested in the subject-matter of the, dispute. The learned Single Judge was not alive to this aspect of the law.
The next document in chronological order is Exhibit 4 dated 7-3-1959. It is a sale-deed executed by Govind Sahu in favour of the plaintiff describing him as son of Hari Senapati. Exhibit 4 is a self-serving document After adoption, Govind had two sons born to him, fix 1958 plaintiff was about 21 years' old and the two natural born sons of Govind were a few years younger. One of them had been born by 1935. By 1953, Govind appears to have devised ways and means to disown the plaintiff as his adopted son. Exhibit 4 is a piece of evidence whereby he wanted to disown the adoption of the plaintiff and described him as the son of his natural father. A self-serving admission is not admissible in evidence, unless it comes within any of the exceptions under Section 21 of the Evidence Act. This admission does not come within the ambit of Section 21, and is, therefore, inadmissible in evidence. By Exhibit 41 plaintiff was given some property. By describing the plaintiff as the son of his natural father, plaintiff would get a share in the property of his natural father in addition to the property that was given to him by Govind under Exhibit 4. For the aforesaid reasons. Exhibit 4 is not admissible, and cannot be used adversely to the interests of defendants 1 to 3.
Exhibit C dated 6-7-1953 is a sale-deed by which land was purchased by defendants 1 and 2 from outsiders. Reliance is placed on this document on behalf of defendants 1 to 3 to show that plaintiff was excluded because he was not a member of the family after being adopted away. This document is an innocuous one. Even if the Plaintiff would have continued as a member- of the family of defendants 1 to 3, it was open to defendants 1 and 2 to purchase lands In their name by ignoring him.
Exhibit E is a sale-deed executed by one Dhobei Sahu, father-in-law of defendants 1 and 2, in favour of the plaintiff on 4-9-1953 describing the plaintiff as the adopted son of Govind Sahu. The land comprised in the sale deed was four decimals in area, and the consideration was Rs. 20/-. If this document is genuine, it is a clear admission of the plaintiff that he was the adopted son of Govind Sahu. D.W. 4 proves this document Plaintiff was major by then. Nothing substantial has been urged by Mr. Mohanty to explain this document. He only argued that it was created by Dhobei Sahu, father-in-law of defendants 1 and 2, to establish the adoption of plaintiff. There is no evidence on record - much less convincing - to prove that Ext. E was the outcome of a conspiracy to create evidence of adoption. Plaintiff does not disown the property conveyed by Ext. E. This document is a very strong piece of evidence supporting the case of adoption. Similarly, Exhibit D is another sale-deed executed by D.W. 4 on 26-4-1957 in favour of the plaintiff describing him as son of Govind Sahu in respect of 0.5 acre of land for Rs. 30/-. For reasons given in connection with Exhibit E, Exhibit D constitutes an important admission on the cart of the plaintiff that he was the adopted son of Govind, plaintiff does not disown this piece of land, nor does be satisfactorily explain the existence of such a document. There was no controversy at that time for fabrication of such a document.