B.P.DAS, J. FIRST APPEAL NO.54 OF 1982 (Decided on 21.05.2010) NAYAN SUNDARI BEWA (DEAD) BY L.Rs. ………. Appellants. .Vrs. SUBASH CHANDRA BEHERA & ORS. ………. Respondents. (A) CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – SEC.96. (B) HINDU LAW (C ) LIMITATION ACT, 1963 (ACT NO.36 OF 1963) – ARTICLE 95. For Appellant - M/s. Bidyadhar Mishra, P.K.Rout, P.C.Panda, G.K.Agrawal, M.Mishra & B.C.Panda. M/s. Tapan Mishra & G.K.Agarwalla. For Respondent –M/s.B.M.Patnaik, B.D.Mohanty, J.K.Mishra, P.Mohanty, S.Mantry & A.K.Sharma. M/s.N.C.Das, S.R.Das & A.K.Das.M/s. N.P.Pattnaik. B.P.DAS, J. This First Appeal arises out of the judgment and decree dated 3.10.1981 and 5.11.1981 respectively passed by the Additional Subordinate Judge, Cuttack in Title Suit No.142 of 1972. 2. The plaintiff appellant-Nayana Sundari Bewa having died during pendency of the appeal has been substituted by her legal heirs, who are appellant nos.A.1/a to A.1/g. Defendant-respondent no.1 having died during pendency of this appeal, has been substituted by his legal heirs, i.e., R.1/a to R.1/i. Respondent nos.6 and 7 were expunged respectively by order no.36 dated 1.12.1989 and order no.53 dated 2.3.1989. The names of respondent nos.8 and 9 were deleted by order no.67 dated 13.1.1992. This appeal stood dismissed as against respondent no.9 vide order no.61 dated 8.4.1990. 3. The present appellants 1/a to 1/g are all sons and daughters of plaintiff-Nayana Sundari Bewa, who filed the aforesaid suit bearing T.S.No.142/1972 for a declaration that D-1-Subash Chandra Behera, is not the adopted son of the plaintiff’s husband, late Bansidhar Behera, and as such, he is not entitled to the status and benefit of a son by virtue of the deed dated 29.2.1960, which is a void document ; and for a declaration that the preliminary decree passed by the Sub-Judge, Cuttack in Title Suit No.74/1962 and further proceedings based thereon are null and void and the said Subash Chandra Behera is not entitled to any share thereunder and further to direct Subash Chandra Behera to render accounts of the management of the estate of the plaintiff during his agency and a Pleader Commission be appointed to take proper accounts to be submitted by Subash Chandra Behera and for a permanent injunction restraining Subash Chandra Behera from interfering with the estate of the plaintiff’s husband, which was vested on her. For the sake of convenience, the genealogy given in the plaint is extracted herein below :- Gajendra Behera _____________________________________________ Bansidhar (dead) Dibakar (dead) Nayana Sundari Bewa (Plff.) Jania sundari Bewa (D-6) Subash Chandra Behera (Alleged adopted son) (D-1) Prakash Umesh Parasmani Saudamani (D-2) (D-3) (D-4) (D-5) 4. The case of the plaintiff as pleaded in the plaint is that late Gajendra Behera had two sons, Bansidhar and Dibakar. Plaintiff is the widow of Bansidhar and defendant no.6-Janaka Sundari is the widow of Dibakar. While Bansidhar and Dibakar were living in a joint Hindu family, Banshidhar, the husband of plaintiff- Nayana Sundari Bewa, died on 29.12.1955 in a state of jointness with his brother- Dibakar, who died in 1963 leaving behind his widow, sons and daughters, who were defendant nos.2 to 6 in the suit. 4(a). The joint family of Bansidhar and Dibakar was a well-to-do family in Cuttack town having vast landed property and considerable estate. After the death of her husband, the plaintiff inherited the properties left by her husband. Shortly after the death of Bansidhar Behera, dissension started in the family and both the branches were separated in mess and residence. Dibakar picked up quarrel with the plaintiff and filed T.S. No.5 of 1956 in the Court of the Sub-Judge, Cuttack against the plaintiff for partition of the joint family moveables. The plaintiff being a Pardanashin illiterate lady was unable to look after her estate, for which she had to take the assistance of her brother-Naba Behera, and her son-in-law Madhusudan Behera. Naba Behera was a neighbour of the plaintiff at Bada Jobra, Cuttack. The suit filed by Dibakar ended in compromise. The plaintiff obtained succession certificate in respect of the estate of her deceased husband from the court of the District Judge, Cuttack, in Misc. Case No.8 of 1956. 2 4(b). The plaintiff’s brother having frequently found fault with her son-in-law in managing the estate, the son-in-law of the plaintiff expressed his inability to continue to manage her estate any further and therefore, the plaintiff had no other alternative than to depend upon her brother for management of her estate in view of the hostility of Dibakar and his family members with the plaintiff. Some time thereafter, plaintiff’s brother wanted the estate to be looked after by his son-Subash Chandra Behera-Defendant no.1 and Defendant no.1 continued to live with the plaintiff at her house since 1958 and managed the estate of the plaintiff. Thus the plaintiff had to trust Defendant no.1 and his father who were successfully protecting her interest against the red eyes of Dibakar Behera and his family members. Taking advantage of the trust reposed by the plaintiff, her brother advised the plaintiff to adopt defendant no.1, as her son so that defendant no.1 would develop an attachment towards the plaintiff and would be sincere to look after her estate. The plaintiff had to accept the proposal. Defendant no.1 pressed upon the plaintiff to give her final consent to the adoption and the plaintiff agreed that she would execute a deed of adoption in favour of defendant no.1 as a token of evidence of adoption and the power of attorney executed in favour of her son-in-law would be cancelled and a fresh power of attorney would be executed in favour of defendant no.1 to facilitate him in managing the plaintiff’s estate. Subsequently, the plaintiff’s brother took her to the house of defendant no.1’s father-in-law at Dargha Bazar, Cuttack and asked her to put her L.T.Is. on some papers which she was told to be deed of adoption and the power of attorney. The said documents were written and scribed by a scribe arranged by defendant no.1’s father-in-law and were attested by the supporters of defendant no.1’s father-in-law, who was a shrewd and influential litigant of the locality. The scribe, attesting witnesses and the identifier to those documents were strangers to the plaintiff and believing defendant no.1 and their representation, his father-in-law in good faith that it was a deed of adoption the plaintiff, subscribed her L.T.I. on the said documents. The contents of the documents were never read over nor explained to the plaintiff. The Sub-Registrar was requisitioned to the house of defendant no.1’s father-in-law and the plaintiff had no occasion to know the contents of the documents. On the same day, defendant no.1 and his father-in-law also obtained a deed of cancellation of the power-of-attorney in his favour the same way without the contents of that document being read over or explained to her. 4(c). Defendant no.1 having induced Sidha Behera, a tenant under her son-in-law to refuse the tenancy in respect of some properties gifted by the plaintiff and her husband to her son-in-law the latter instituted T.S. No.167 of 1962 in the Court of the Munsiff, Second Court, Cuttack, against the tenant in which the plaintiff and defendant no.1 were pro forma defendants. In the said suit, defendant no.1 having influenced the son-in-law of the plaintiff to admit him (defendant no.1) as the adopted son of the plaintiff, the said suit was compromised. The deed of compromise was never read over or explained to the plaintiff. Defendant no.1 engaged a lawyer of his choice and asked the plaintiff to subscribe her L.T.Is. on some papers and at times the plaintiff also put her L.T.Is. on same blank papers which, according to defendant no.1, were necessary to be filed in different litigations. 4(d). Thereafter Dibakar Behera instituted O.S.74 of 1962 in the Court of Sub- Judge, Cuttack, against the plaintiff for partition of the joint family immovable properties and defendant no.1 was also impleaded as a co-defendant along with the 3 plaintiff in the said suit. At the intervention of the well-wishers of the family, the said suit was compromised and it was settled that the plaintiff would get seven annas interest in the suit properties since Dibakar Behera had expired during the pendency of that suit. It was also decided that a compromise petition would be filed in the suit and defendant no.1 was looking after the said suit on behalf of the plaintiff. He wanted a deed of partition to be also executed and registered before filing of the compromise petition. Accordingly, the plaintiff put her L.T.I. on the deed of partition that was prepared by the scribe and the attesting witnesses arranged by defendant no.1 without apprising the plaintiff of the contents of the said document. The compromise petition was also written and without the contents of the same being read over or explained to the plaintiff, she was asked to put her L.T.Is. on it. The suit was preliminarily decreed in terms of compromise and during the final decree proceeding which was started on the petition of defendant nos.2 to 6 for the first time, defendant no.6, the widow of late Dibakar Behera, having passed a taunting remark that defendant no.1 whom she had trusted would deprive her of the properties and turn to the streets, suspicion arose in the mind of the plaintiff and she engaged Sri N.P.Choudhury, Advocate, to look after the final decree proceeding. To her utter surprise, the plaintiff was informed by Sri N.P.Choudhury, Advocate, that the plaintiff along with defendant no.1 has been declared jointly entitled to 9 annas interest in the suit properties in the compromise decree. The plaintiff came to know this in August, 1969 and thereafter, obtained the certified copy of the preliminary decree to confirm her suspicion of fraud practised on her. The plaintiff having enquired it from defendant no1., the latter gave an impression to the plaintiff that the same would be corrected as a mistake had crept in, the plaintiff would be entitled to 9 annas interest and is not along with defendant no.1. 4(e). Since defendant no.1 did not take any step for correction of compromise decree, the plaintiff filed a petition during the final decree proceeding which was disallowed by order dated 11.2.1970 against which the plaintiff preferred Civil Revision No.181 of 1970 before this Court. During pendency of the Civil Revision, the plaintiff was advised that the same could be rectified by filing a suit and therefore, she had to withdraw C.R. No.181/70 and filed T.S. No.152/71 in the Court of the Sub-Judge, Cuttack. In the said suit the plaintiff also filed a petition under Order 39 Rule-1 C.P.C., which was numbered as Misc. Case No.348 of 1971, for temporary injunction for restraining defendant no.1 from proceeding with the final decree in the previous suit. For the first time, defendant no.1 produced a document purporting to be an acknowledgement of previous adoption dated 29.2.1960 and on perusal of this document, the plaintiff came to know for the first time that defendant no.1 had fraudulently obtained the said document by false recitals that he was the adopted son of Basidhar Behera, the deceased husband of the plaintiff. Since the fact of adoption was not challenged in T.S. No.152 of 1971, the plaintiff had to withdraw the suit and filed the present suit for redress. According to the plaintiff, her husband had never adopted defendant no.1 at any time nor the plaintiff and the recitals contained in the document dated 29.2.1960 are all false and imaginary. 4(f). Defendant no.1 taking advantage of his fiduciary relationship with the plaintiff and taking advantage of being an agent of the plaintiff having created confidence on 4 her has got a document executed in his favour evidencing his adoption by the plaintiff’s husband without the contents thereof being read over or explained to her and keeping the plaintiff in darkness of the contents of the document, the petitions and decree were obtained in his favour. The compromise decree passed in T.S. No.74 of 1962 did not clothe defendant no.1 with any right or interest in the properties of the plaintiff’s husband and the same not having been acted upon was void and thereby did not clothe the defendant no.1 with any right, title and interest. Although defendant no.1 was removed from the agency of the plaintiff since March 1971, he had not rendered any accounts for the period of his management. After withdrawal of Civil Revision No.181 of 1970, defendant no.1 was emboldened to interfere with the plaintiff’s possession and so the document dated 29.2.1960 and the compromise decree having thrown a cloud on the title of the plaintiff, she was obliged to come to Court and hence filed the present suit. 5. Defendant no.1 in his written statement denied all the allegations made in the plaint. According to him, it was false to say that shortly after death of the plaintiff’s husband, dissension cropped up in the family and there was separation in mess and properties between the branches which resulted in the institution of T.S. No.5 of 1956 by Dibakar Behera, that the plaintiff was a Paradanashin illiterate lady, that she was unable to look after the affairs, that she took the help of her brother and son-in- law, that there was estrangement between the plaintiff and her son-in-law, that the plaintiff had to depend solely on her brother for the management of the estate left by Banshidhar Behera, that the estate of the plaintiff’s husband was protected with the assistance of this defendant and his father, that they were the protectors and beneficiaries of the estate of the plaintiff, that this defendant pressed upon the plaintiff for his adoption, that the plaintiff’s brother advised her to execute a deed of adoption and a deed of cancellation of power of attorney in favour of her son-in-law and to execute a power of attorney in favour of this defendant; that the plaintiff was taken to the house of the father-in-law of this defendant by her brother; that she subscribed her L.T.Is. to the deed of adoption and power of attorney without the contents being read over and explained to her; that the said documents were scribed with the own scribe and the witnesses and the identifiers of this defendant and his father-in-law; that the scribe and the witnesses and the identifiers were strangers to the plaintiff; that misrepresentation was made to her without the contents of the document being read over and explained to her; that this defendant put pressure on the son-in-law of the plaintiff to admit him as the adopted son of Bansidhar Behera in the compromise petition filed in T.S. No.167 of 1962; that the contents of the said compromise petition were not read over and explained to her; that T.S. No.74/62 was filed by late Dibakar Behera without the knowledge of the plaintiff and that it was decided in the said suit that the plaintiff would alone be entitled to 9 annas share and the heirs of Dibakar to 7 annas share in the family properties. It was equally false to say that the plaintiff had to throw all the responsibility on this defendant; that this defendant persuaded the plaintiff to remain silent as he would get the mistakes in the compromise decree rectified; that the plaintiff came to know of the previous adoption of this defendant only during the pendency of Misc. Case No.348 of 1971 in the Court of the Sub-Judge, Cuttack. 5(a). According to this defendant, in spite of long marital life when the plaintiff had no male except a daughter and after taking medical advice when late Bansidhar 5 Behera and the plaintiff were convinced that no son would be begotten, late Bansidhar Behera in order to perpetuate his line along with the plaintiff proposed to adopt the son and in their said desire proposed to the natural parents of this defendant that in case a son is born to them, he would be adopted by late Bansidhar Behera and the plaintiff. 5(b). Sometime thereafter late Bansidhar Behera having got information that the natural parents of this defendant were blessed with a child, the plaintiff on the direction of Bansidhar came to the house of the natural parents of this defendant and wanted to take this defendant as adopted son. In her eagerness and to satisfy her desire, the plaintiff took this defendant to her house from his mother on the third day of his birth though the giving and taking was performed on the 21st day of his birth, when at the request of Bansidhar Behera and the plaintiff, the natural father and mother of this defendant handed over this defendant to the adoptive father and the defendant was named as Subash from that day. Subsequently, this defendant was being called as Suno by way of affection. This defendant was born on 5.5.1939. After defendant no.1 left her mother’s breast, he was brought to the house of Bansidhar permanently where he was nursed and was looked after by the plaintiff. Late Bansidhar Behera educated him and the plaintiff performed the marriage ceremony of defendant no. 1. This defendant continued as a member of the plaintiff’s family and got the properties left by Bansidhar by survivorship along with the plaintiff who was a post-Act widow. Bansidhar Behera, the adoptive father expired during the minority of this defendant and Dibakar Behera with the plaintiff and her son-in-law-Madhusudan Behera in order to deprive this defendant with his legitimate share in the properties left by Bansidhar Behera created some documents and tried to misappropriate huge amount that were lying in different banks and Government offices in the name of Bansidhar Behera. When this defendant came to know about such foul game played by Madhusudan Behera and Dibakar Behera, the plaintiff was surprised to know about the same and the plaintiff was eager to fulfil the desire of her husband and, accordingly, executed a deed of adoption on 29.2.1960 acknowledging the adoption of this defendant by her husband and also executed and registered a power of attorney in favour of the defendant to look after the litigation and the properties. She also cancelled the power of attorney executed in favour of her son-in-law. Thereafter several purchases have been made by this plaintiff and defendant along with defendant no.6 and they have also transferred some of their family properties. The plaintiff entered into a compromise in T.S. No.167 of 1962 wherein she had also acknowledged the adoption of the defendant by her husband. The contents of the documents were all read over and explained to the plaintiff who was a shrewd lady of Cuttack town, and this defendant having lost all his interest in the family of his natural father had severed all connection with the said family. 5(c). The plaintiff having acknowledged the adoption of this defendant in several documents, she is now estopped from challenging the adoption and being under the ill-advice of her son-in-law, Madhusudan Behera, who, in order to get a lion’s share in the properties left by Bansidhar Behera, after the death of the plaintiff has got this false suit filed in order to deprive the defendant of his legitimate right. This defendant has performed the sudhi ceremony of late Bansidhar Behera and is offering annual Pinda to the knowledge of the plaintiff. He has been recorded in respect of the family 6 properties in the present settlement record of right and is paying all the public dues. He being a member of the family having legitimate share in the properties, the question of his rendering accounts does not arise. 5(d). Therefore, according to defendant no.1, the suit is not maintainable in law; the plaintiff has got no cause of action to bring the suit, the suit is barred by law of limitation and hit by estoppel and acquiescence, the suit properties have been grossly undervalued and proper court-fees have not been paid, the suit is bad for misjoinder of parties and also for non-joinder of necessary parties and also for multifariousness. Therefore, the defendant prayed for dismissal of the suit with costs. 6. Defendant nos.2 to 6 in a separate written statement have almost admitted the averments made in the plaint and denied their knowledge about the fraud and misrepresentation played on the plaintiff by virtue of the documents referred to in the plaint. They have specifically stated that defendant no.1 was never adopted either by the plaintiff or by her husband. 7. Defendant no.7 filed a separate written statement stating that the suit was not maintainable in law and no relief having been claimed against him by the plaintiff, the suit was bad for misjoinder of parties and was liable to be dismissed so far as this defendant is concerned. Defendant no.7 supported the case of defendant no.1 and stated that defendant no.1 was adopted by Bansidhar Behera during his life time. He further stated that the properties described in the schedule of the written statement were acquired by late Bansidhar Behera, the plaintiff’s husband, who while in possession gifted it to this defendant who is an ascetic and hermit in 1948 over which this defendant started a Math and accepted the gift made by the plaintiff’s husband. He constructed a pucca house and is in possession of the same. The said gift has been confirmed by way of registered gift deed executed by the plaintiff and defendant no.1 on 11.6.1960 rectifying the earlier gift. This defendant has mutated his name in Tahasil Office and it was assessed to Municipal Taxes. This fact has been admitted by the plaintiff in the compromise entered into in T.S. No.7/1962 and therefore, according to this defendant, the challenge to the gift made on 11.6.1960 in the present suit is barred by law of limitation. The suit is hit by estoppel and acquiescence and the suit properties have been grossly undervalued. Therefore, this defendant prayed for dismissal of the suit with costs. 8. Defendant no.9 in a separate written statement also denied the allegations made in the plaint and supported the case of defendant no.1. According to her, she obtained a permanent lease in respect of Ac.2.725 decs. of land appertaining to plot no.1258 in khata no.206 of Mouza-Sikharpur from the plaintiff under the registered deed of lease dated 21.8.1961 and is in possession thereof. She has been recorded as such in the settlement record of right. The plaintiff and defendant no.1 also jointly sold Ac.0.160 decs. of land out of plot no.354 in khata no.25 of Mouza-Badajobra to defendant no.8 by registered deed of sale executed on the same day, i.e., 21.8.1961 and defendant no.8 is in possession of the said properties as owner thereof. According to her, the suit is not maintainable in law and barred by law of limitation. It is bad for non-joinder and miss-joinder of parties and the plaintiff has got no cause of action to bring the suit and there being no allegation against her in the plaint and 7 no relief having been sought for against her, the suit is bad for miss-joinder of parties. Defendant no.8 by a separate written statement adopted the written statement filed by defendant no.9. 9. Defendant no.10 did not contest the suit and so he was set ex parte. 10. The Court below, on the pleadings of the parties, framed the following issues :- a) Is the suit as laid maintainable ? b) Has the plaintiff any cause of action to file this suit ? c) Is the suit barred by law of limitation, estoppel and acquiescence ? d) Has the suit been properly valued and proper court fees have been paid on the plaint ? e) Is the suit band for multifariousness ? f) Is the suit bad for miss-joinder and non-joinder of parties ? g) Is defendant no.1 adopted son of Bansidhar Behera ? h) Has the deed of acknowledgement of adoption dated 29.2.1960 been executed by the plaintiff ? i) Has the compromise petition on which preliminary decree passed in T.S. No.74 of 1962 in the court of the 3rd Addl. Sub-Judge, been executed