S.P. Rajkhowa, J. - (1.) This second appeal is directed against the appellate judgment and decree dated 21.12.84 passed by Sri T. P. Chatterjee, Additional [District Judge, 4th Court, Midnapore dismissing the Title Appeal No. 32 of 1981 and affirming the judgment and decree passed in the Title Suit No. 77 of 1976 by the Subordinate Judge, 3rd Court, Midnapore.
(2.) The main point for decision is as to whether the defendant/appellant Sri Ganesh Chandra Hazra is the legally adopted son of the plaintiff/respondent Sm. Sajani Bala alias Ludan Bala Hazra. Both the courts below came to a concurrent finding that the defendant is not legally adopted son of the plaintiff. This court sitting over a second appeal would generally be reluctant to interfere with the concurrent findings of the courts below. But Sri Roy chowdhury, learned counsel for the appellant has submitted that both the courts below came to an erroneous finding as because all the evidence on record was not considered by them and has urged before us to peruse the evidence on record in its entirety to come to a correct finding. He is supported by two decisions of the Supreme Court in Budhwanti and another v. Gulabchand Prasad AIR 1987 SC 1484 and Dilbagrai Panjabi v. Sharad Chandra, AIR 1988 SC 1858 . The subject matter of these two reported decisions are not similar to the case in hand. But the principle enunciated by the Supreme Court in these two reported cases will apply, because an interference by the High Court is permissible when the findings of the lower courts are vitiated by application of wrong test. Accordingly, as urged by the learned counsel for the appellants, we have gone into the entire evidence on record as well as the judgments of both the courts below. The plaintiff-respondent's contention is that the defendant/appellant is not her adopted son and her deceased husband Mahendra did not give her any authority to adopt the defendant Kherson. She contends that the documents relating to the adoption of the defendant and filed and proved by the defendant regarding his adoption by ne plaintiff are not valid documents and she did not execute any such paper. Being an illiterate woman she did not know the contents of these documents tad the defendant got these documents executed by exercising undue influence on her. Ext. 1 is the unregistered deed of adoption. The limned Subordinate Judge found fault in Ext. 1 on the following grounds : (1) That there is averment regarding giving of adoption but there is no averment regarding acceptance of the defendant in adoption by the plaintiff; (2) that the father of the defendant executed Ext. 1, but his mother (natural mother) did not execute the same ; 3 that the natural mother was absent at the time of Sampradan. However, after such findings he observed that these Irregularities should not be viewed rigidly. But then he examined together Ext. 1 and Ext. A which is the registered deed of declaration by the plaintiff accepting the defendant as her adopted son, along with the evidence on record and came to the conclusion that the adoption of the defendant did not take place in a valid way and this finding clinches the issue in favour of the plaintiff The learned Subordinate Judge also observes in his judgment that he fails to understand as to why the defendant was not taken into adoption by Mahendra Nath Hazra while he was alive. According to the learned Subordinate Judge, the defendant simply stayed at the house of the plaintiff like a son and not as a son adopted. He further observes that the plaintiff is an illiterate woman and the defendant exerted undue influence on her.
(3.) The learned lower appellate court agrees with the finding of the learned Subordinate Judge that Ext. 1 is obviously an irregular document of adoption. He also throws the burden on the defendant to prove as to why Mahendra did not adopt him while he was alive. He also came to the conclusion that the authority of Mahendra to plaintiff to adopt the defendant as her son remains not proved. According to him neither the defendant nor any of his witnesses had said anywhere in the evidence that Mahendra, before his death, gave verbal direction to the plaintiff for the adoption of the defendant. But the lower appellate court held 011 erroneous view of the law of adoption when it says that under the Old Hindu Law (the instant case is governed by the Old Hindu Law) the power to give a boy in adoption had to be exercised both by the father and the mother and the same could never be exercised by any one of them alone. As Ext. 1 was signed by the father alone and not jointly with his mother, the lower appellate court held and concurred with the finding of the learned Subordinate Judge that Ext. 1 is an irregular document of adoption. By discussing the evidence on record the lower appellate court observes that there is no whisper either in the evidence of the defendant himself or in the evidence of anyone of his witnesses that the defendant's mother also was present on the alleged date of the adoption and gave her consent in the matter along with her husband. Upon such findings the learned lower appellate court dismissed the appeal. Being aggrieved, the defendant has come before us in the second appeal.;