KARUNAKAR RANSINGH AND OTHERS vs KUNTALA DEI AND OTHERS

Dr. A.K. Rath, J.Â

Defendant nos.1, 2 and 4 are the appellants against a reversing judgment. Â

Plaintiffs-respondent nos.1 to 4 instituted the suit for declaration that the defendant no.1 is not the adopted son of defendant no.3 and plaintiff no.1

and certain other ancillary reliefs. The case of the plaintiffs is that plaintiff no.1 is the wife of defendant no.3. Plaintiff nos.2 to 4 and defendant no.2

are the daughters of defendant no.3. Defendant no.3 has no male issue. To look after the property, defendant no.3 wanted to keep a person as illatom

son-in-law. He approached the father of the defendant no.1. The father of the defendant no.1 did not agree to the same and gave a proposal to

execute a deed of adoption in favour of defendant no.1. At the time of writing of the alleged deed of adoption dated 21.2.1973, the deed writer

expressed that the adopted son cannot marry the daughter of defendant no.3. He suggested to mention the name of defendant no.2 as the adopted

daughter of defendant no.4. There was no giving and taking ceremony. Plaintiff no.1 was not aware of any deed acknowledging adoption. If there

was any adoption, then defendant no.1 could not have married the daughter of plaintiff no.1 and defendant no.3. The specific case of the plaintiffs is

that defendant no.1 is the illatom son-in-law of plaintiff no.1 and defendant no.3. With this factual scenario, they instituted the suit seeking the reliefs

mentioned supra. Â

The defendant nos.1, 2 and 4 filed written statement. The case of the defendants was that after birth of the youngest daughter, Basanta, plaintiff

no.3, the defendant no.3 and plaintiff no.1 lost their hopes of begetting a male issue. They thought to adopt a child to perpetuate the line of succession.

Defendant no.3 requested the natural father of defendant no.1 for the said purpose. Defendant no.1 was adopted by the defendant no.3 on Sri

Panchami day of Magha, 1967. There was giving and taking ceremony in the presence of priest, relatives and village gentry. Since then, he lived with

the adoptive parents. At the instance of plaintiff no.1 and defendant no.3, his father’s name was changed in the school admission register. He is

an employee of Railway. In his service record, he has been described as the son of defendant no.3. In the voter’s list, he had described as the son

of defendant no.3. His adoptive parents performed his marriage with the defendant no.2. The defendant no.3 had executed a deed acknowledging

adoption in favour of defendant no.1. It is apt to mention here that during pendency of the second appeal, the defendant no.4-appellant no.3 died. The

legal heirs have been substituted.Â

On the interse pleadings of the parties, learned trial court struck ten issues. Parties led evidence. Learned trial court dismissed the suit holding inter

alia that there was giving and taking ceremony. Defendant no.1 is the adopted son of defendant no.3 and plaintiff no.1. Assailing the judgment and

decree of the learned trial court, the plaintiffs filed T.A. No.3 of 1994 before the learned Civil Judge (Sr. Divn.), Khurda. Learned appellate court

came to hold that the natural father of defendant no.1 had not signed on the deed acknowledging adoption, Ext.A. Ext.A was executed in the year

1973 whereas the alleged adoption took place in the year 1967. D.W.2 in his cross-examination had stated that Ext.A was executed before defendant

no.4 adopted Pramila, defendant no.2. Defendant no.4 adopted defendant no.2 when she was 4 years old. Defendant no.3, the so-called adoptive

father, denied the factum of adoption. The natural father of defendant no.1 was not examined as witness. Defendant no.1 was not adopted in the year

1967. Ext.A was executed at the time of marriage between defendant no.1 with defendant no.2. Held so, it allowed the appeal. Â

The second appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii), (iv), (v) and (vi) of the memorandum of

appeal. The same are:

“(i) Whether the impugned judgment and decree are vitiated on account of the learned lower appellate court omitting to take into consideration the

voter lists for the year 1984 and 1988 (marked Exts.C and    D) having great evidentiary value wherein defendant no.3 has been recorded as the

father of defendant no.1.

(ii) Whether over-looking of materials, by the learned lower appellate court such as evidence of witnesses present at the time of adoption about the

factum of giving and taking; admission of plaintiff no.1 (examined of P.W.1) to the effect that in the Railway Department the father’s name of

Karunakar has been recorded as Dhwaja Ransingh who is her husband and in whose place Karunakar has been posted, the registered deed marked

Ext.B executed by plaintiff no.4 which shows her admission about the adoption of defendant no.1; renders the judgment and decree vulnerable.

(iv) Whether the learned lower appellate court committed an error of law in outsightly rejecting the registered deed of acknowledgement of adoption

marked Ext.A.

(v) Whether the conclusion of the learned lower appellate court that the suit is not barred by limitation and the reasons assigned in arriving at such

finding are supportable and in accord with the provision of law.

(vi) Whether the simple suit for declaration is not maintainable in view of the embargo created in the proviso appended to section 42 of the Specific

Relief Act and if so, the impugned judgment and decree are vitiated.â€​

Heard Mr. K.B. Kar, learned counsel for the appellant. None appears for the respondents.Â

Mr. Kar, learned counsel for the appellant, submits that defendant no.3 and plaintiff no.1 had three daughters. They lost all hopes of begetting a

male child. They approached the father of defendant no.1 to adopt defendant no.1. The adoption took place on Sri Panchami day of Magha, 1967. The

giving and taking ceremony took place in the house of defendant no.3 in the presence of the priest, relatives and village gentry. Accordingly, the

defendant no.3 executed a deed acknowledging adoption, Ext.A. In the school admission register, service record as well as voter’s list, the name

of defendant no.1 had been described as son of defendant no.3. On a threadbare analysis of the evidence on record as well as pleading, learned trial

court came to hold that the defendant no.1 is the adopted son of defendant no.3. But untenable and unsupportable ground, learned appellate court

upset the said finding. The duty of the learned appellate court is to see whether the evidence taken in whole can reasonably justify the conclusion

which trial court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court

outweigh such finding. Â

The scope of interference in an appeal under Sec.96 C.P.C. is well known. The apex Court in the case of B.V.Nagesh and another vs. H.V.

Sreenivasa Murthy, 2010 (13) SCC 530 held:

“3. How regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41

CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:

a) the points for determination;

b) the decision thereon;

c) the reasons for the decision; andÂ

d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless

restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore,

reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth, and

pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and

the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on

questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in

support of the findings. (Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and others vs. Sangram

and others, (2001) 4 SCC 756)

In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation

placed on it as a first appellate Court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The

appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of

considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside

the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with

law.â€​

Reverting to the facts of the case and keeping in view the enunciation of law, this Court finds that defendant no.2 is the natural born daughter of

defendant no.3 and plaintiff no.1. Defendants’ plea that defendant no.1 married to defendant no.2. By no stretch of imagination, the adopted son

can marry the natural born daughter of adoptive parents.

The submission of Mr. Kar, learned counsel for the appellant, that defendant no.2 was adopted by defendant no.4 by the time the deed of

acknowledgement was executed is difficult to fathom. Even in such a case, he also cannot marry to defendant no.2. Mere mentioning the name of

defendant no.1 in the school admission register, service record, voter’s list is not suffice. Learned appellate court, on a vivid analysis of the

evidence and pleadings, disbelieved the deed acknowledging adoption, Ext.A and held that the defendant no.1 is not the adopted son of defendant no.3.

There is no perversity or illegality in the said finding. The substantial questions of law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to

costs.   Â