L. Mohapatra, J.
1. The sole deceased-defendant who has been substituted by her legal heirs had filed this appeal against the reversing judgment in a suit for declaration that the plaintiff-respondent is the adopted son of the defendant and her deceased husband Banamali Baral.
2. Case of the plaintiff-respondent as per plaint is that the plaintiff is the natural born son of Sri Udayanath Baral and Smt. Mana Dei and he was born in the year 1930. When he was aged about 4 years late Banamali Baral and his wife defendant Sebati Baral adopted him as per a giving and taking ceremony accompanied by Data Homa ceremony. Since the time of adoption he is being treated as the adopted son of Banamali Baral and Sebati Baral and as such Sebati Baral has no manner of right to alienate any property of Banamali Baral as the plaintiff has succeeded to the property after death of Banamali Baral as adopted son. But ignoring the plaintiffs right as an adopted son. Sebati Baral wife of late Banamali Baral has sold away the landed property of Banamali Baral as per the sale deed Nos. 4,5702, 3684, 3013 and 5001 on 1-1-81, 28-8-80, 18-5-81, 22-4-80 and 28-8-80 respectively, for which the suit was filed.
In the written statement the defendant-Sebati Baral denies all the averments made against her In the plaint and stated that the plaintiff is not the adopted son of herself and her husband late Banamali Baral. It is stated further in the written statement that the plaintiff was never adopted by them as per a giving and taking ceremony and the plaintiff was not born in the year 1930 and was not adopted by them at the age of 4 years. That the defendant and her deceased husband were quite young during the year 1934 and had not lost hope to beget children by which period of time she was only 25 years of age and her husband was only three years older than her. It is also stated in the written statement that the plaintiff is a stranger to the family to the defendant Banamali Baral and he had got no manner of right, title and interest over the property of late Banamali Baral. The sole defendant succeeded to the property of Banamali Baral.
Maintainability of the suit was also challenged on the ground that the suit had been filed for declaration without any consequen-
3. Considering the pleadings of the parties, the trial Court framed the following issues :
(1) is the suit maintainable?
(2) is the suit barred by limitation?
(3) is there any cause of action?
(4) is plaintiff the adopted son of Banamali Baral and the defendant?
(5) Whether the adoptive parents of the plaintiff had agreed not to alienate their property?
(6) Shall the plaintiff alone succeed to the property of Banamali?
(7) To what other relief the plaintiff is entitled?
4, Answering the issue No. 4 with regard to the adoption of the plaintiff by Nanamali Baral and his wife, original defendant Sebati Baral, the trial Court held that the plaintiff is not the adopted son of Banamali Baral and Sebati Baral.
So far as issue Nos. 5 and 6 are concerned, trial Court held that since the plaintiff is not the adopted son of Banamali Baral and the defendant, question of any agreement by his adoptive parents not to alienate any property does not arise and also question of succeeding to the property of late Banamali Baral by the plaintiff does not arise.
With regard to maintainability of the suit even though an issue was framed, trial Court held that in view of the finding with regard to adoption, the suit is not maintainable and there was no cause of action to file the suit.
5. The lower appellate Court reversed the finding of the lower Court with regard to the adoption and relying on the evidence of P.W. 2 accepted the plea of adoption and held that the plaintiff cannot claim absolute right over the entire property left by Banamali, and the defendant being admittedly the widow of Banamali has also got a share. He further held that there is no evidence to hold that the adoptive parents of the plaintiff had undertaken not to alienate their property and such an undertaking is not enforceable in a Court of law.
6. The Second Appeal has been admitted on the ground No. 17(b), (c) and (d) of the appeal memo. Substantial questions of law on which this appeal has been admitted are quoted below :
17(b). Whether in the case of ancient adoption where the plaintiff stated that there is no eye-witness to the adoption is alive is it permissible on the appellate Court to rely on the evidence of other witnesses viz.; P. Ws. 2, 3, 4 and 5 who are highly interested in the plaintiff.
(c) Whether the findings of the learned lower appellate Court are sustainable in law when the appellate Court has committed grave error of record in considering the pleadings and the evidence of the parties.
(d) Whether in the case of ancient adoption where no direct evidence is available the Court should examine the series of records of right such as Ext. A to D/4 series and whether the findings are legal and correct in view of the non-consideration of the same.
7. Shri Baug, learned counsel for the appellant submitted that P.W. 2 who alleges to be the adopted sister of Banamali Baral had come to depose with the hope that in case the plaintiff succeeds she will get share out of the same as she is the adopted daughter of Banamali’s father. According to Sri Baug P.W. 2 is an interested witness and her evidence should have been disbelieved by the lower appellate Court. He further submitted that the evidence of P.W. 2 being full of contradiction in all material parts with regard to the date of adoption, age of plaintiff as well as the age adoptive parents, no reliance could have been placed on the evidence of P.W. 2 by the lower appellate Court. It is further contended that when the adoption mother has specifically denied the adoption, heavy onus lies on the plaintiff to prove the adoption which has not been discharged by the plaintiff. Shri Baug also contended that the lower appellate Court has not whispered a single word with regard to the reason why he disbelieved P.W. 1 the defendant who is stated to have adopted the plaintiff. It is also stated that the performing of ‘Sudhi’ ceremony by the plaintiff even though believed cannot be sole criteria to believe adoption as alleged by the plaintiff. He further submits that categorical admission of the plaintiff in his deposition that none of the people who had seen adoption are alive, the evidence of P.Ws. 2 to 5 with regard to adoption cannot be believed. In absence of any document in support of such adoption and in absence of cogent evidence with regard to giving and taking ceremony, learned lower appellate Court could not have re-
versed the finding of the lower Court with regard to adoption of the plaintiff.
8. With regard to maintainability of the suit learned counsel for the appellant submits that mere suit for declaration that the plaintiff is the adopted son without consequential relief challenging the alienations made by the defendant is hit by proviso to Section 34 of the Specific Relief Act and consequently the suit is not maintainable at all. The consequential relief was very much available to be prayed for by the plaintiff for which he has already filed another title suit and the same has been stayed by this Court. Learned counsel for the appellant relies upon a decision reported In AIR 1961 SC 1378 (Laxman Singh Kothart v. Smt. Rup Kanwar) submits that there must be giving and taking and to achieve the object of giving and taking it is essential to have a formal ceremony. Law requires that the natural parents shall handover the adoptive boy and the adoptive parents shall receive him. He has also relied upon a decision reported in (1990) 2 Ori LR 1989 (Hara Dibya v. Pravakar Satapathy) and submits that in case of adoption, mother has vital role to play in the process of adoption. Once the adoptive mother denies such adoption onus becomes heavier on the plaintiff to prove such adoption.
9. In course of argument he has drawn attention of this Court to the evidence adduced on behalf of both parties. Plaintiff examined himself as P.W. 1. In cross-examination P.W. 1 has stated, that people who have seen his adopting parents bringing him from Udayanath Baral are not alive and there is no adoption deed. In examination-in-chief, he has stated that at the time of adoption he was aged 4 years. He has also stated that Sridhara Baral and Sahadeba Baral and Ors., of his village know about his adoption, but neither Sridhar Baral nor Sahadev Baral were examined in Court.
P.W. 3 is the uterine brother of the plaintiff. He has stated in his evidence that his father Udayanath Baral physically handed over the plaintiff to Banamali Baral and Banamali Baral physically accepted him as son. He has stated that Banamali Baral celebrated adoption by giving a feast to the villagers and the villagers attended the feast. In cross-examination he has stated that he is 30 years older than the plaintiff and the adoption took place 30 to 32 years back and
at that time he was aged about 16 to 17 years. If the said witness is 30 years older than the plaintiff, then his statement that adoption took place when he was 16 to 17 years old cannot be believed.
P.W. 4 is a neighbour of late Banamali. In his evidence he has stated that Udayanath Baral physically handed the plaintiff to Banamali in his presence and thereafter took him to his house and Banamali Baral gave feast to the villagers on the eve of adoption. His presence during the adoption has been ruled out by the plaintiff himself.
10. Evidence of P.Ws. 3 and 4 cannot be
believed with regard to actual giving and taking since the plaintiff himself in his deposition has admitted that none of the people who had seen the adoption are alive. Much reliance has been placed by the lower Court in the evidence of P.W. 2 on the ground that she being an old lady of 72 years and sister of late Banamali Baral should be believed. Such witness in her evidence has stated that adoption took place in her presence and at that time she was not married. In cross-examination she has stated that when the plaintiff was adopted her son was aged about 4 to 5 years. This goes contrary to her evidence in examination-in-chief that she was not married when the adoption took place. In para 5 of her cross-examination she has also stated that after the adoption ceremony they came back home with the plaintiff. Thereafter the plaintiff was going to his mother for breast feeding and was returning back to her house. This part of the evidence is also not believable in view of the fact that the plaintiff was aged about four years at the time of adoption. In cross-examination she has also admitted that there was no feast for the adoption of the plaintiff. In para 5 of the cross-examination she has stated that she had come to the Court with the hope that she would get share out of the property of her father if the plaintiff gets her father’s property. In view of such nature of evidence no reliance can be placed on P.W. 2. So far as the evidence of P.Ws. 3 and 4 with regard to adoption is concerned, same cannot be accepted in view of the admission of P.W. 1 that none of the persons who had seen the adoption of plaintiff are alive.
11. D.W. 1 the deceased-defend ant has categorically denied such adoption in her evidence. In view of such denial in the written statement as well as in evidence, heavy
onus lies on the plaintiff to prove the actual giving and taking ceremony of adoption and on perusal of the evidence adduced on the part of the plaintiff, it is found that giving and taking ceremony has not been proved in accordance with law. In para 4 of the plaint though it is stated that physical act of giving and taking was accompanied by “Datta Homa” ceremony, no evidence has been adduced on behalf of the plaintiff with regard to such Datta Homa ceremony. Though P.Ws. 1. 3 and 4 stated that the ceremony was followed by feast, the same has been denied by P.W. 2. P.W. 2 in her evidence has stated that there was no feast for the adoption of the plaintiff.
12. Considering such evidence on record, I am of the view that such alleged adoption has not been proved in accordance with law. There is no acceptable evidence with regard to giving and taking ceremony of adoption and the presence of P.Ws. 3 and 4 at the time of adoption cannot be believed. Relying on the decision, reported in AIR 1961 SC 1378 (supra) and 1990 (11) Ori LR 1989 (supra), 1 am of the view that neither there was giving and taking ceremony for the adoption nor it was followed by feast and accordingly the plaintiff has failed to prove adoption as alleged in the plaint.
13. The appeal is allowed, the judgment and decree of trial Court is confirmed and the judgment and decree of lower appellate Court is set aside.