Dismissed

Manoj Kumar v. Shri Durga Narayan Shrivastava

Patna HC15 May 2013SA/331/2009

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a partition suit based on alleged adoption. The Patna High Court upheld the first appellate court's finding that the appellant failed to prove the factum of adoption, noting a lack of specific date/place for the ceremony and contradicting documentary evidence of living with the natural father.

What did the court decide?

The second appeal is dismissed.

Manoj Kumar Vs Shri Durga Narayan Shrivastava — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.331 of 2009

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Manoj Kumar son of Bindhyachal Prasad Shrivastava (natural father) resident of village Meenapur Balaha; P.S. Piprahi; Distt-Sheohar at present resident of Mohalla Rajopatti; Sonabati Colony; P.S. Sitamarhi (adopted son of Durga Narayan Shrivastava-resident of Mohalla-Rajopatti, South of Apna Bazar, P.S. & District-Sitamarhi.

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Plaintiff.... Respondent.... Appellant Versus

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Shri Durga Narayan Shrivastava son of Late Mukhdeo Narayan Shrivastava, resident of village- Hemayupur, P.S. Bajpatti, DistrictStiamarhi at present residing at Mohalla Rajopatti South to Apna Bazar Ward No. 22(23), Dumra Road, District-Sitamarhi.

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Sumit Kumar son of Sri Shankar Prasad, Sitamarhi Kapraul Road, Ward No. 9, P.S. + Distt. Sitamarhi.

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Sanjeev Kumar son of Shankar Prasad, Sitamarhi Kapraul Road, Ward No. 9, P.S. + Distt. Sitamarhi.

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Defendant.... Appellant.... Respondent/s

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Appearance :

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For the Appellant : Mr. Suman Kumar

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Mr. Kumod Kumar Shrivastava

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For the Respondents : Mr. Y.V. Giri, Sr. Advocate

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Mr. Vikas Ratan Bharati

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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19 The present second appeal arises out of a partition suit filed 15-05-2013 by the appellant seeking partition from his adoptive father, who has been impleaded as respondent No. 1 in the present appeal.

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The respondent No. 1 disputed the very factum of adoption as alleged by the appellant-plaintiff. The Trial Court (Sub Judge-I, Motihari) decreed the Partition Suit No. 13/93 vide Judgment and decree dated 06.06.2001 and 21.06.2001 respectively in favour of the plaintiff/appellant. The judgment and decree of the trial Court

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was set aside by learned first appellate Court in Title Appeal No. 26/01/04/07 vide Judgment and decree dated 06.06.2001 and 21.06.2001 respectively holding that the plaintiff could not prove adoption and thus dismissed the suit. Hence this second Appeal under Section 100 of the Code of Civil Procedure.

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As indicated above, Durga Narayan Shrivastava, respondent No. 1, was the defendant before the Trial Court who, according to the plaintiff was his adoptive father. Respondent No. 2 and 3 are the purchasers of certain properties from the said Durga Narayan Shrivastava.

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I have heard learned counsel for the appellant and learned counsel appearing on behalf of the respondents No. 2 and 3 at length.

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As per the appellant / plaintiff, Durga Narayan Shrivastava is said to have expressed his desire to take plaintiff in adoption as he did not have any issue, to Vindhyachal Prasad Shrivastava, natural father of the plaintiff, who became ready and willing to give plaintiff in adoption out of his own free will. It was the specific case of the plaintiff that after performing all religious rites in the year 1975, he was duly adopted by respondent No. 1 / defendant No.1. According to the plaintiff‟s case, an agreement of adoption was also prepared in the year 1975. After he attained

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majority, the plaintiff negotiated for his marriage and with the consent of the adoptive parents, his marriage was solemnized on 10.02.1992, i.e. 17 years after the plaintiff was said to have taken in adoption. Plaintiff asserted that the adoptive parents performed various religious rites and participated in functions in the marriage ceremony.

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According to the plaintiff /appellant, one Srinath Prasad Shrivastava, the brother-in-law of defendant No. 1, was making efforts to gain over and influence defendant No. 1 so as to usurp the joint family properties of the plaintiff and defendant No.1. As per the appellant‟s case, he requested Respondent No. 1 (his adoptive father) to partition the properties as mentioned in schedule-1 of the plaint but he being in collusion with said Srinath Prasad Shrivastava, was avoiding partition, which necessitated the appellant to file the suit. The respondent No. 1 / defendant contested the suit by filing written statement. He questioned the maintainability of suit, also on the ground that in the absence of any relief seeking declaration of his adoption by respondent No.1, he could not maintain his suit for partition. The defendants denied the assertion that the plaintiff was taken in adoption by respondent No. 1 or that Respondent No. 1 executed any adoption deed.

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On the basis of the rival pleadings, learned Trial Court

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framed seven issues including issue No. 4 which in fact is the only issue involved in the present lis and is being quoted hereinbelow:-

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“4. Is the story of adoption as alleged by the plaintiff

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“true”?

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After issues having been framed, the parties adduced evidence both oral and documentary.

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From the judgments of the courts below, it appears that plaintiff examined altogether 31 witnesses who have been described in paragraph-19 of the Trial Court judgment. Out of these 31 witnesses, 19 were the formal witnesses. In course of trial P.W.-10 Arjun Pandit claimed to be the scribe of deed of adoption. He is said to have stated that adoption took place on 14.10.1975 in his presence at Bhairwa, Nepal, according to Hindu rites. He is said to have drafted the deed of adoption on the direction of the adoptive father which was read over to them over which the defendant / respondent put his signature. According to him, one Ramchandra Prasad and Janardan Prasad signed as witness on the deed of adoption. The said deed is on record as Exhibit-„5‟.

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Janardan Prasad, another witnesses on the deed of adoption, as per the plaintiff‟s case, was examined as P.W.-12. According to him, the plaintiff was adopted by the

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defendant/respondent. He further said that the deed of adoption was written by Arjun Pandit in his presence who read over it to the defendant/respondent No. 1. He put his signature over the deed of adoption. The natural father of the plaintiff Bindhyachal Prasad was examined as P.W.-26 who is said to have stated that the adoption took place on 14.10.1975 with full religious rites and the deed of adoption written by the scribe Arjun Pandit was signed by the defendants and other witnesses. He also stated that after adoption, the plaintiff started living with the defendants and all relations with his natural father were cut off. Ramchandra Prasad, other witnesses of adoption was examined as P.W.-27 who also stated that adoption took place in his presence following all religious rites and deed of adoption was written by Arjun Pandit which was read over to the defendants.

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There is no dispute about a crucial fact that the deed of adoption was not registered and did not bear the name of place where the adoption is said to have taken place.

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In course of trial, the plaintiff / appellant brought on record certain photographs in support of the fact that the adoptive parents actively participated in the marriage ceremony of the plaintiff as father and mother so as to support his case that after adoption he lived with the adoptive parents and cut off his all

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relationship from his natural father.

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It appears that several witnesses were examined for the defendant so as to counter the case of the plaintiff, the story of adoption as developed by the plaintiff.

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Learned Trial Court on the basis of such evidence on record came to a finding that the story of adoption was fully proved and decided issue No. 4 in favour of the appellant / plaintiff. Having held so, learned Trial Court also held the plaintiff / appellant to be entitled for a decree of partition to the extent of his 1/3 shares in the suit property.

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The defendant / appellant herein, preferred first appeal vide Title Appeal No. 26/01/04/07. Learned first appellate Court vide judgment and decree dated 09.06.2009 and 20.06.2009 respectively set aside the judgment and decree of the Trial Court and dismissed the suit.

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The present second appeal has thus been preferred by the plaintiff / appellant Manoj Kumar, against the judgment and decree dated 09.06.2009 and 20.06.2009 respectively passed in Title Appeal No. 26/2001/04/07 by learned Additional District Judge, F.T.C.-VII, Sitamarhi, whereby he reversed the judgment and decree dated 06.06.2001 and 21.06.2001 passed in T.S. No. 13/93 by Sub-Judge-4, Sitamarhi.

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Learned counsel for the appellant has vehemently submitted that there was sufficient evidence adduced in course of trial to prove adoption of the appellant / plaintiff by defendant / respondent No. 1. He submits that the judgment of the learned first appellate court reversing the findings of the Trial Court is based on irrelevant considerations. He submits that the deed of adoption to which the respondent No. 1 himself was a party, was sufficient evidence in support of adoption even though it was not registered. He further submitted that there was sufficient oral evidence also to prove adoption and the fact that adoption had in fact taken place. He would further submit that the facts subsequent to date of adoption in course of trial also suggested that plaintiff was taken in adoption by the defendant / respondent No. 1.

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In view of these submissions, learned counsel for the appellant has submitted that these aspects were not taken into consideration in its proper perspective by the learned first appellate Court while reversing the findings of the Trial Court. He has further submitted that the judgment of the first appellate Court is in breach of mandatory provisions of Order 41 Rule 31 of the Code of Civil Procedure. Accordingly, he submits that the second appeal involves a substantial question of law as to whether the lower Court was justified in not appreciating and considering

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the provision of Order 41 Rule 30 and 31 of the Code of Civil Procedure to frame its own points for determining the appeal. The other substantial question of law which according to him arises in the present second appeal is:-

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“As to whether the first appellate Court was justified in not considering the statement of D.W.-33 of the defendant who found signature of the Respondent No. 1 on Exhibit-„5‟, the deed of adoption?”

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He submits that the judgment under challenge is perverse and not sustainable in the eye of law.

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Learned counsel appearing on behalf of the respondents No. 2 and 3 on the other hand has supported the judgment of the first appellate Court contending that the plaintiff failed to prove the factum of adoption, inasmuch as there was absolutely no evidence to prove actual giving and taking in adoption nor there was any evidence to prove as to the nature of religious rites / ceremonies performed for such adoption. Referring to certain documentary evidence on record, learned counsel for the respondent has submitted that the plaintiff / applicant had made an application for his employment giving name of his natural father as his father and not respondent No. 1.

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Having heard learned counsel for the appellant and

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respondent No. 2 and 3, the only aspect which requires to be considered in the present second appeal is as to whether the findings arrived at by learned first appellate Court can be said to be perverse, contrary to evidence or without any evidence. This is also required to be considered as to whether, by reversing the findings of the learned Trial Court, learned first appellate Court has considered and met the reasoning assigned by learned Trial Court for decreeing the suit in favour of the plaintiff.

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On plain reading of the judgments of learned Trial Court and learned first appellate Court, it will appear that none of the plaintiffs witnesses i.e. P.W.-10, the scribe P.W.-26, the natural father P.W. 7, witness of the adoption deed stated any thing as regards adoption ceremony. They did not say anything to prove that appellant / plaintiff was given in adoption by his natural father and that he was taken in adoption actually by respondent No. 1 / defendant No. 1. Even in the plaint, date of adoption and place of adoption was not mentioned. The vague oral evidence was only to the effect that all religious ceremonies were performed at the time of adoption. From the judgment of the first appellate Court, it appears that the so-called adoption deed (Exhibit-5) said to have been executed on 14.10.1975 did not bear the name of place where it was executed. Learned first appellate Court

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considered the evidence of natural father Vindhyachal Prasad Shrivastava (P.W.-26) who failed to state the exact date and place of adoption.

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From paragraph-22 of the judgment of the learned first appellate Court, it appears that it considered the documentary evidence filed on behalf of the defendant / respondent No. 1 (Exhibit-„J‟) which was an application given by the plaintiff to the District Registrar, Sitamarhi on 02.05.1985 which was an admitted document. The said petition was given by the plaintiff himself to the District Registrar, Sitamarhi, for his appointment as Clerk in which he mentioned the name of his natural father Vindhyachal Prasad Shrivastava as his father and entered his permanent and correspondence address of his natural father in his petition. On analysis of such document, learned first appellate Court came to a finding that even after 10 years of alleged adoption, the plaintiff / appellant was living with his natural father Vindhyachal Prasad Shrivastava. Learned first appellate Court also considered Exhibit-„K‟ and-„K/1‟ which was an application filed by the plaintiff in Election Office to change his father‟s name and address as Durga Narayan Shrivastava and his address. This fact was enquired by Panchayat Sewak and Block Development Officer of the concerned area who reported that the plaintiff was

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not living with Durga Narayan Shrivastava. From the judgment of the first appellate Court it appears that the said report was submitted before filing of the suit by the plaintiff. Learned first appellate Court also dealt the other documentary evidence brought on record by the defendant / respondent No. 1 i.e. voter lists of 1985, 1988, 1993 and 1995 and on the basis of such documents it came to the conclusion that the plaintiff was residing with his natural father and not with respondent No. 1. On the basis of analysis and scrutiny of such evidence, learned first appellate Court came to the conclusion that the appellant / plaintiff failed to prove his story of adoption and the alleged deed of adoption was prepared fraudulently in order to file partition suit on the basis of adoption to grab the properties of defendants. I have perused the judgment of learned Trial Court. The same on the face of it, appears to be perfunctory as it has failed to discuss in detail the oral and documentary evidence adduced in course of trial.

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I am of the opinion that learned first appellate Court after analysis, scrutiny and appraisal of evidence on record came to a finding that the plaintiff could not prove his case of adoption.

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Learned counsel for the appellant has failed to point out that any finding of the first appellate Court is contrary to evidence. Finding of fact arrived at by the first appellate Court is binding on

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the High Court in a proceeding under Section 100 of the Code of Civil Procedure unless the same is shown to be perverse.

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Section 11 of the Hindu Adoption and Maintenance Act, 1956 deals with the conditions of a valid adoption. Sub-section (vi) of which is relevant and is being quoted hereinbelow:-

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“11(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or a child whose parentage is not know, from the place or family where it has been brought up] to the family of its adoption:”

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The said provision mandates that a child to be adopted

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must be actually given and taken in adoption by parents or guardian concerned. In order to prove a valid adoption, onus is heavy upon the person who claims adoption, to prove that the child was „actually given and taken in adoption by the parents or guardian concerned or under their authority with an intent to transfer the child from the family of his „birth‟ to the Adoptive family. From the evidence adduced on behalf of the plaintiff in course of trial, which has been discussed by the Trial Court as well as the learned first appellate Court it appears that the plaintiff / appellant miserably failed to prove the case of adoption.

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Learned counsel for the appellant has given much emphasis on the photographs which were brought on record in course of trial to show that the defendant/respondent No.1 with his

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wife participated in the marriage ceremony of the plaintiff as his father and mother which was an evidence to support that after adoption the plaintiff had cut off all relationship from his natural father. I am of the opinion that such evidence cannot be a proof of adoption. In order to prove adoption, burden is upon the person who claims adoption that the child was transferred from one family to another. Other circumstances cannot prove that adoption had actually taken place. This is to be kept in mind that here is not a case where a plea of adoption was being disputed after several years of such adoption so that other circumstances could also be considered for proof of adoption. In the present case, as per the plaintiff, he was adopted in the year 1975 and the suit was filed in 1993. The plea that the judgment of the learned first appellate Court does not meet with the requirement of the Order 41 Rule 31 of the Code of Civil Procedure has been raised by the learned counsel for the appellant to be rejected. From the perusal of the judgment of the learned first appellate Court it would appear that the only point which required to be determined by them was as to whether the plaintiff was able to prove his adoption by defendant No. 1. This point has been elaborately considered by the learned first appellate Court, discussed and determined. I do not find any such infirmity in the judgment of the learned first appellate Court

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so as to raise any substantial question of law in the present second

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appeal.

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In view of the above, the appeal is dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Manoj Kumar v. Shri Durga Narayan Shrivastava

Case brief

What is this about?

What did the court decide?

Manoj Kumar v. Shri Durga Narayan Shrivastava

Case brief

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What did the court decide?

What the court decided

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