Ratha Behera and Others vs Gangei Behera and Others

L. Mohapatra, J.—Defendants 1 to 3 are appellants before this Court against a confirming judgment.

Respondent No. 1 filed the suit for partition of the suit properties and allotment of 3/4th share in his favour. The suit having been preliminarily decreed the defendants 1 and 3 preferred an appeal before the learned Additional District Judge, Jajpur and the appeal having been dismissed the present Second Appeal has been filed by defendants 1 to 3.

Case of the plaintiff-respondent is that late Sindhu Behera was the original owner of the suit properties and the plaintiff is his natural born son. Prior to birth, his parents had adopted one Bali Behera, father of defendants 1 to 6. Sindhu Behera died sometime in the year 1926 and the current settlement operation having been completed by that time, name of Sindhu Behera appeared in the record of rights without any correction. Further case of the plaintiff is that he being the natural son of late Sindhu Behera is entitled to 3/4th interest in the properties, whereas Bali Behera being the adopted son is entitled to 1/4th interest in the suit properties. It is alleged by the plaintiff that since the defendants started creating trouble in peaceful possession of the plaintiff over the suit land, he requested the defendants on 14,4.1982 for partition of the suit properties, but they did not agree and accordingly the suit was filed for partition and allotment of shares. Defendants 7 to 9 being purchasers were impleaded as parties.

Defendants 1 to 6 contested the suit by filling a written statement and it is the specific case of the defendants 1 to 6 that late Bali Behera was not, the adopted son of Sindhu Behera, but was the natural born son through first wife of Sindhu. It is further case of these defendants that plaintiff is the son of second wife of Sindhu Behera and as per the prevailing custom the plaintiff is entitled to 7 annas interest whereas Bati is entitled to 9 annas interest in the properties it is further case of the defendants that Bali Behera being illiterate and deaf, the plaintiff created some documents showing Bali Behera as adopted son of Sindhu without knowledge of Bali Behera. It is further averred by these defendants that heirs of late Bali Behera have succeeded to his interest and it is claimed to be 9 annas interest.

Defendant No. 9 is one of the purchasers and filed a separate written statement stating that he had purchased Ac. 1.45 decimals from out of the suit land from the plaintiff by registered sale-deed dated 15.10.82 and Ac. 0.25 decimals by another registered sale-deed dated 26.3.80. According to this defendant, after execution of the sale-deeds possession was delivered to her and she is in possession of the same since the date of purchase. She also further averred in the written statement that Bali Behera was the adopted son of Sindhu and the plaintiff was the natural born son.

On the basis of the pleading of the parties learned Subordinate Judge, Jajpur framed four issues and issue No. 3 relates to the question as to whether Bali Behera is the adopted son or natural born son pf Sindhu. Considering the oral and documentary evidence available on record the learned Subordinate Judge came to a finding that Bafi was the adopted son of Sindhu and was not his natural born son. While answering issue Nos. 1 and 2 relating to maintainability of the suit as well as entitlement of share by the plaintiff, the learned Subordinate Judge referring to Article 497 of the Hindu Law held that not only the suit is maintainable but also the plaintiff is entitled to 3/4th interest in the properties left by Sindhu, whereas defendants 1 to 6 are entitled to 1/4th interest therein. On the above finding the suit having been decreed preliminarily an appeal was carried before the learned Addl. District Judge, Jajpur by defendants 1 and 3. The lower Appellate Court considering the evidence adduced by both parties concurred the finding of the Subordinate Judge and dismissed the appeal giving rise to the present Second Appeal.

At the time of admission of the Second Appeal this Court formulated the following substantial questions of law to be adjudicated.

"(i) The parties being Sudras the adopted son has right to claim share in the property equally with that of a natural born son taking birth after adoption which is found in Dattaka Chandrika.

(ii) As has already been stated the concurrent findings of the Courts below that Bali was the adopted son of Sindhu is liable to be set aside as the entire evidence is inadmissible either u/s 50 of the Evidence Act or Section 90 of the Evidence Act, as already indicated in the memorandum of appeal.

(iii) As material facts regarding adoption of Bali by Sindhu were not pleaded in the plaint, evidence in that regard, should not have been allowed in the trial stage, in contravention of Order, Rule 2 of CPC."

Shri Dey, learned counsel appearing for the appellants referring to the substantial questions of law on which the appeal has been admitted submitted that admittedly the parties are sudras by caste. Orissa was a part of Bengal till 1912 and in Bengal Dattaka Chandrika governs determination of shares between adopted son and a natural born son who took birth after adoption. According to the Dattaka Chandrika right of an adopted son is to share equally on partition of joint family properties with a legitimate natural born son of adoptive father taking birth subsequent to such adoption. In this connection, reliance is placed on the decision of the Calcutta High Court in the case of Brahmananda Mohanty v. Krishna Chandra Pattnaik, 14 Calcutta Law Journal 183. Learned counsel for the appellants also relied upon another decision of this Court in the case of Karunakar Sahu v. Hadibandhu Sahu and Ors. 28 (1 962) CLT 29. In the decision rendered by the Calcutta High Court referred to above question raised was whether an adopted son is by Hindu Law entitled only to 1/2th of share of his adoptive father had there been a partition between the adoptive father and his brothers during life time of the adoptive father. The question was answered in favour of the adopted son taking into consideration paras 24 and 25 of Section (V) of Dattaka Chandrika. While deciding the said question it was observed by the Court that it was unnecessary to decide the point in that case that as the members of the family are Sudras and by para 29 of the Dattaka Chandrika. Section 4 the preceding para 25 does not apply to families of that caste. The aforesaid decision of the Calcutta High Court was referred to by this Court in the case of Karunakar Sahu v. Hadibandhu Sahu and Ors. (supra). This Court in the aforesaid decision referred to the Calcutta decision as well as the decision of the Privy Council reported in AIR 1922 PC 71 and accepted the view that if the parties are Sudras the adopted son is entitled to equal share with an after born natural son. Question that arises for consideration in this case is whether the aforesaid principle laid down by the Calcutta High Court approved by this Court is applicable in the present case or not. There is no dispute that Sindhu Behera father of the plaintiff as well as adoptive father of late Bali who died in the year 1926. Right to claim a share in the properties of late Sindhu Behera accured only after his death. As admitted in the appeal memo, Orissa was a part of Bengal till 1912 and being a part of Bengal Dattaka Chandrika was in force and an adopted son could claim a share equal to that of a natural born son after such adoption, Right to claim partition having arisen in the year 1926 after death of Sindu Behera. I am of the view that the said principle laid down by Calcutta High Court and later approved by this Court has no application to the present case.

So far as second and third questions of law are concerned it was pleaded by Sri Dey, learned counsel for the appellants that there was no pleading in the plaint with regard to adoption of Ball Behera by Sindhu Behera and therefore the question as to whether Bali Behera was adopted son of Sindhu Behera or not was not open for discussion or to be decided by the courts below. In this connection para 1 of the plaint may be referred to. It is specifically averred that the plaintiff is the natural born son of late Sindhu Behera and prior to birth of the plaintiff, his father had adopted Bali Behera, father of defendants 1 to 6. This averment of the plaintiff was denied by the defendants 1 to 6 in the written statement and it was claimed that Bali Behera is not the adopted son of Sindhu Behera, but natural born son of Sindhu Behera through his first wife. On the basis of such averments made in the plaint as well as in the written statement the learned Subordinate Judge framed a specific issued i.e., issue No. 3 relating to the question as to whether Bali Behera was the adopted or natural born son of Sindhu Behera and answered the said issue in favour of the plaintiff and against the defendants 1 to 6. Both the courts below referring to the oral evidence as well as documents placed before the Courts, concurrently held that Bali Behera was the adopted son of late Sindhu Behera and after such adoption the plaintiff was born. While deciding the issue some documents were referred to by both the Courts below wherein Bali Behera has been described as adopted son of Sindhu. In view of the concurrent finding of fact arrived at by both the Courts below on referring to oral and documentary evidence, there is hardly any scope for this Court to take a different view. In support of such rival claims, documents were produced and evidence was led. On consideration of such evidence only the Courts below found that Ball was the adopted son of Sindhu. The learned counsel for the appellants could not impress the court as to which documents were inadmissible in evidence and were relied upon by the Courts below. In view of the discussions made above the other two questions of law stand answered against the appellants.

I do not find any merit in the appeal and the same stands dismissed.