CHITRA CHOUDHURIANI Vs. PADHANUNI

JUDGEMENT

(1.) Plaintiff's case may be stated in short. The disputed properties of 7.69 acres and 5.40 acres which are not the subject-matter of the suit belonged to Agadhu Padhan who died in 1938 leaving behind him his widow Bhanu who died in 1955 and four daughters Chitra (plaintiff), Srimati (defendant No. 1) Kesiri (defendant No. 2) and Ketaki (defendant No. 5). Defendant No. 2 lived with Bhanu with her husband and children as she was poor. After Bhanu's death, the aforesaid 5 acres and odd were partitioned amongst the four daughters but the disputed properties had not been partitioned. Plaintiff's husband was in management of the disputed properties. There was a proceeding under Section 145, Cr. P. C. in M. C. Case No. 198 of 1963 between the husband of the plaintiff on one side and defendants 3 and 4 on the other. It terminated in favour of defendants 3 and 4 by an order (Ext. G) on 3-1-1964. In that proceeding it was disclosed for the first time by defendants 3 and 4 that defendant No. 3 had been adopted by Bhanu in 1948. The suit for partition was filed on 24-1-1964. The adoption of Sribataa (defendant No. 3) by Bhanu and Bhanu having authority to adopt from her husband were denied. The suit is for partition of the disputed properties and allotment of 1/4th share thereof to the plaintiff. Defendant No. 1 filed a written statement supporting the plaintiff's case. Defendant No. 5 supported the case of defendant No. 2. Defendants 2 to 5 took up the same defence that defendant No. 3 was adopted by Bhanu on the basis of an oral authority to adopt given by Agadhu in favour of Bhanu. In the written statement of defendants 2 and 5 the alleged adoption was stated to be in the year 1948 while in the written statements of defendants 3 and 4 the date of adoption was given as the Akshyatrutiya day in 1947. The suit was dismissed by the Additional Subordinate Judge on the finding that defendant No. 3 was duly adopted by Bhanu who had the authority to adopt. Plaintiff's first appeal was dismissed by our learned brother B. K. Ray, J. who affirmed the findings of the learned Subordinate Judge on both the points. Against his judgment this A. H. O. has been filed.

(2.) Mr. Sinha for the appellant challenges both the findings. It is to be noted that though the appeal before us is a second appeal, yet it is to be decided on the footing that this is a first appeal. In other words, we are at liberty to assess the evidence afresh and are not bound by the concurrent findings of the two courts. This is concluded by a Bench decision of this Court in (1973) 1 Cut WR 809 : (AIR 1974 Orissa 120) (Jagabandhu Senapati v. Bhagu Senapati). It is, however, to be emphasised that though the concurrent findings are not binding on us, we would be slow to disturb such findings unless we are satisfied that they cannot stand on a reasonable assessment of the materials on record.

(3.) We would first examine whether there was adoption of defendant No. 3 by Bhanu. The onus is heavy on defendant No. 3 to prove adoption as the natural line of succession is displaced thereby. D.Ws. 1 to 3. 6 and 7 deposed the factum of giving and taking. Defendant No. 4 (D.W. 1) is the natural father of defendant No. 3. He deposes to the fact of giving and taking. He handed over defendant No. 3 to Bhanu who accepted him as a son to her husband on Akhayatrutiya day of 1947. All the daughters of Bhanu were present at the ceremony. A year after the adoption. Bhanu executed a power of attorney (Ext. F) on 2-7-48 in favour of Kalu Choudhury (P.W. 6), husband of the plaintiff. He was to look after the properties of Bhanu under this document. In the plaint itself it is admitted that he was in charge of management of the properties of Bhanu. On the 3rd of July, 1948 two documents were registered. Ext. A is a registered Will executed by Bhanu in favour of her four daughters whereby 5.40 acres of land were given to them. On 2-7-1948 a deed of adoption was executed wherein the factum of adoption and authority to adopt were referred to. These documents will be dealt with at the appropriate stage later. D.W. 2 younger brother of Nilamani Padhan (D.W. 7) also speaks of giving and taking ceremony at the time of adoption. D.W. 3 corroborates the evidence regarding the factum of giving and taking. Satyabadi Kavi (D.W. 6), husband of defendant No. 5, also speaks of the adoption and giving and taking and so also D.W. 7 who is distantly related to Bhanu. The evidence of these witnesses who were present at the time of giving and taking ceremony has been critically examined by the learned Subordinate Judge and the learned Single Judge. Mr. Sinha took us through the evidence of these witnesses and after having heard him we find no sufficient reasons to take a different view. Much emphasis was made of the fact that in the proceeding under Section 145, Cr. P. C. as well as in the written statement of defendants 2 and 5 there were statements that the adoption was in 1948 though the positive defence in the written statements of defendants 3 and 4 and in evidence is that it was on Akhayatrutiya day of 1947 when the giving and taking ceremony took place. In the proceeding under Section 145, Cr. P. C. the factum of adoption was referred to for historical purposes as to the origin of the title. It had no bearing on the question in issue as to who was in possession of the lands on the date of the preliminary order. The registered deed of adoption was in fact executed on 3-7-48. There is, therefore nothing unusual in referring to adoption in the year 1948 in Ext. G. Defendants 2 and 5 filed their written statement on 2-5-1964 while two written statements were separately filed by defendants 3 and 4 on 13-5-64 - 11 days after. The Advocates appearing for defendants 2 and 5, and 3 and 4 were different. In the written statements of defendants 2 and 5 adoption is stated to be in the year 1948 while in the written statements of defendants 3 and 4 it is clearly mentioned to be on the Akhayatrutiya day of 1947. During hearing, when these matters were brought to our notice we were little surprised as to why two different sets of written statements were filed on behalf of defendants 2 to 5 though they had a common case. Possibly, defendants 2 to 5 were advised that they should file a separate written statement so as to avoid any comment that defendant No. 5 sails with defendants 2 to 4. We confess that we have not been able to obtain any reasonable explanation but we are satisfied that the advocate for defendants 2 and 5 was careless and did not properly carry out the instruction given by defendant No. 4 at the time of drafting of the written statement. As the deed of adoption was of the year 1948 the Advocate for defendants 2 and 5 did not take care to be vigilant in giving the date of adoption in 1947. It is only eleven days after, defendants 3 and 4 filed two different written statements making clear averments that the adoption took place on the Akhayatrutiya day of 1947. Our learned brother B. K. Ray, J. accepted the explanation that sometimes 1948 was stated as the year of adoption because there was a registered deed of adoption of that year. Taking an overall picture of the entire evidence we endorse that view. The witnesses to the execution of Ext. B are clear. On the plaintiff's side there is merely a denial of the factum of adoption and the ceremony of giving and taking. Plaintiff did not pledge her testimony that she was absent on the date of adoption.