Lakhindra Soren And And Ors vs Dinesh Hembrom And Ors

This Second Appeal has been filed against the judgment and decree dated 04.12.1990 and 17.12.1990 respectively passed by 4th Additional District Judge, Santhal Parganas, Dumka in Title Appeal No. 52 of 1986, whereby, the judgment and decree dated 31.07.1986 passed by the Additional Subordinate Judge, Dumka in Title Suit No. 15 of 1983/02 of 1985 was confirmed by the appellate court.

The appellants herein instituted a suit for declaration that the registered deed of adoption dated 23.03.1983, said to have been executed by Mostt. Rakhouni Devi (since deceased), widow of Late Surendra Soren in favour of Kali Charan Hembrom and his wife Maino Soren for adoption of their son namely Dinesh Hembrom, is ab initio void and inoperative. The other prayer in the suit was for cancellation of the deed under reference and also for cost of the suit.

It transpires from the judgments of the trial court as well as the appellate court that it was the case of the appellants/plaintiffs that the plaintiffs and defendants 1st party and 2nd party are Santhals by caste and they are governed by Santhal customary law. Under the Santhal customary law, an issue-less Santhal widow has got no right of inheritance of her husband's property and such widow is only entitled to maintenance till her death from her husband's property, as also such widow has got no right to adopt a son. It was alleged that registered deed of adoption dated 23.03.1983 said to have been executed by Mostt. Rakhouni Devi (since deceased), widow of late Surendra Soren in favour of Kali Charan Hembrom and his wife Maino Soren for adoption of their son namely Dinesh Hembrom is invalid, inoperative and spurious transaction. It was also alleged that it is false to say that Mostt. Rakhouni Devi adopted Dinesh Hembrom, son of Kali Charan Hembrom and his wife Maino Soren in adoption ceremony held in the house of Mostt. Rakhouni Devi in village Khatangi in presence of village community.

There are three sets of defendants in the suit, namely, defendants 1st party, 2nd party and 3rd party, out of these sets of defendants, defendants 1st party entered appearance in the suit, filed their written-statement and contested the suit. They pleaded that the suit is not maintainable and the plaintiffs have got no valid cause of action or right to sue. It was also pleaded that under Santhal customary law, an issue-less Santhal widow has got right of inheritance in her husband's property and such widow is entitled to adopt a son. It was also pleaded that on 18.02.1983, Mostt. Rakhouni Devi (since deceased) adopted Dinesh Hembrom, son of Kali Charan Hembrom, defendant no.2, and his wife Maino Soren, defendant no.3, in presence of village community and village officials in her house at Khatangi and after adoption, Mostt. Rakhouni Devi named Dinesh Hembrom as Thakur Soren. Thereafter on 23.03.1983, Mostt. Rakhouni Devi executed a registered deed of adoption in favour of Kali Charan Hembrom and his wife Maino Soren in respect of adoption of their son Dinesh Hembrom and this deed of adoption is genuine, valid and operative and on these grounds, it was asserted by the defendants that this is a fit case for dismissal of the suit with costs to the defendants.

On the basis of the above pleadings of the parties, the trial court framed 6 issues and entered into to decide the lis. The plaintiffs examined 7 witnesses, whereas, the defendants examined 6 witnesses. The trial court after discussing the evidence adduced on behalf of the parties, came to the finding that adoption-deed which was marked as Ext.-A is valid one and also came to the finding that the plaintiffs have got no valid cause of action or right to sue and, therefore, they are not entitled to any of the reliefs as sought for in the suit and, accordingly the suit was dismissed, against which, the plaintiffs preferred an appeal, which was numbered as Title Appeal No. 52 of 1986, which was decided vide judgment dated 04.12.1990 by 4th Additional District Judge, Santhal Parganas, Dumka. The appellate court, while considering the issue of adoption of Dinesh Hembrom, considered the evidence of D.W.1 to the effect that at the time of adoption Jogmanjhi and Gorait were present. D.W.1-Nunulal Soren @ Lakhindar is himself a village official known as Hari Manjhi. He has stated in his evidence that adoption of Dinesh Hembrom was actually done by Rakhouni Devi. It was argued on behalf of the appellants/plaintiffs that Jogmanjhi and Gorait have not been examined in the case through it has come in the evidence of P.W. 1 that they were present at the time of adoption ceremony. D.W.6- Kali Charan Hembrom has stated in his evidence that he along with his wife Maino Soren placed their son Dinesh into the lap of Mostt. Rakhouni Devi and she in her turn adopted Dinesh Hembrom as her adopted son on 18.02.1983 and on the same place Rakhouni named Dinesh as Thakur Soren. The appellate court also came to the finding that after adoption, Dinesh Hembrom began to live along with Mostt. Rakhouni Devi. The evidence of the witnesses stand substantiated and corroborated by the evidence of D.W.1-Nunulal Soren, who is one of the defendants in the suit. In the cross-examination of the witnesses, nothing doubtful has come out with regard to adoption-deed which was marked as Ext.-A. The appellate court came to the finding that adoption-deed is valid one and after discussing all the issues, the appellate court also came to the finding that there is no merit in the appeal and, accordingly, the same was dismissed. Being aggrieved with the judgment of the appellate court dated 04.12.1990, the appellants have preferred the present Second Appeal.

This Second Appeal was admitted on 13.03.1992 on following substantial questions of law:

"(i) Whether the court below erred in law in holding that a childless Santhal widow of Santhal Parganas is not entitled to make adoption?

(ii) Whether Section 24 of the Santhal Parganas Tenancy Act gives any indication to hold that a childless Santhal widow cannot make adoption?"

Mr. Sanjeev Kumar Sahay, learned counsel appearing for the appellants submits that both the trial court as well as the appellate court have erred in coming to the finding that Santhal widow of Santhal Parganas is entitled to make adoption.

With regard to first substantial question of law, it appears that issue in question has already been set at rest by this Court in the case of Narayan Soren and others v. Ranjan Murmu and others, reported in 2013 4 JLJR 18 by a coordinate Bench of this Court vide judgment dated 12.12.2008.

Paragraph 16 of the said judgment is quoted herein below:

"16. From the aforesaid discussions, it is evidently clear that custom prevailing in the Santhal community has undergone a great change. The rules against female succession among santhals whether christen or non-christens are changing owing to the force of public opinion. The change which is occurring is in the direction of uplifting the condition of women and giving them right in the family as also in the property. From the books of the great scholars who are the authors of many books including the books in Survey and Settlement quoted herein before, it is manifestly clear that there are instances where a sonless male or female have taken in adoption a grandson or any of the agnates of the family."

In view of the aforesaid judgment, the coordinate Bench of this Court came to the finding that where the plaintiff asserts that adoption of a child by female is not customary in Santhals and the defendant discharged the onus by adducing evidence to show that adoption of child by female Santhal is customary then heavy onus lies on the plaintiff for proving that such custom of adoption of a child is not customary in Santhals.

As this issue has already been decided by the coordinate Bench of this Court that female under Santhal Parganas is also competent to adopt a child, nothing remains to be decided by this Court and, accordingly, first law point is answered, in terms of the judgment passed in Narayan Soren & Ors. (supra).

With regard to second law point i.e. Section 24 of the Santhal Parganas Tenancy Act, it appears that second law point is similar to first law point and as first law point has been answered in affirmative that the widow of Santhal Paraganas is entitled to adopt a child, second law point could not come in way or to indicate that childless Santhal widow cannot make adoption, particularly in the fact when the appellants/plaintiffs have failed to prove their case in the courts below. Accordingly, second law point is also decided to the effect that Section 24 of the Santhal Parganas Tenancy Act does not give any indication to hold that a childless Santhal widow cannot make any adoption. Both the courts below have come to concurrent finding and as both the law points have been answered in favour of the respondents/defendants, this Court finds that there is no illegality in the judgment passed by the appellate court dated 04.12.1990 in Title Appeal No. 52 of 1986. Hence, this Second Appeal stands dismissed.

Office is directed to proceed accordingly. Office is also directed to communicate this order to the court below, forthwith.