Judgment:
A. Pasayat, J.
1. Raghunath (the plaintiff-appellant) and Balaram (defendant No, 1-- respondent No. 1) each claimed to be the adopted son of Kalandi Sahara and Nisa Bewa (defendant No. 2 -- respondent No. 2) in a suit filed by Raghunath. The suit was one for a declaration that Raghunath is the adopted son, and not Balaram and that the deed relating to acknowledgment or adoptionand gift, executed by Nisa in favour of Balaram is not valid and binding learned Munsif, Bhubaneswar non-suited the plaintiff holding that plaintiff was not the adopted son. She also concluded that Balaram was not the adopted son, and the document relating to acknowledgment of adoption and gift dated 13-2-1981 (Ext. B) is not valid and operative. Raghunath filed an appeal relating to the finding regarding adoption, while Cross-appeal was filed by the defendants relating to Baiaram's claim of adoption and validity of deed dated 13-2-1981. Learned Additional District Judge. Bhubaneswar dismissed Raghunath's appeal, but allowed the cross-appeal in part holding that the deed (Ext. B) was valid and operative.
2. Before dealing with the rival submissions, a brief reference to inter sc relationship between parties and their stands as pleaded is necessary. One Kirtan had three sons namely, Dharamu, Kalandi (husband of Nisa) and Arjun. Raghunath is the son of Dharamu. Kalandi had two daughters namely, Dhobani and Labani. Raghunath's claim is of adoption, as stated above to Kalandi and Nisa. Balaram is sort of Kumar Behera, brother of Nisa. He also claims to have been adopted by Kalandi and Nisa. Raghunath's case is that having lost five sons in quick succession in their infancy, Kalandi and Nisa adopted him. At the age of five, he was given in adoption by his natural parents and were adopted by Kalandi and Nisa on 10th February, 1955. Baiaram's stand is that for the first time in 1963, the idea germinated in the minds of Kalandi and Nisa to adopt a boy, as they had lost all hopes of begetting a male issue. That is how Balaram, an one year old boy, was adopted on Basant Panchami day of 1964. He stayed with both his adoptive parants till 1988 when Kalandi breathed his last, and thereafter with Nisa.
3. In this appeal under Section 100 of the Code of Civil Procedure, 1908 (in short, the 'Code'), Raghunath calls in question the defehsibility of the conclusions of the appellate court. It is his stand as presented by his learned counsel Miss Sanju Panda that the conclusions relating to adoption are perverseand have been arrived at by placing emphasis on irrelevant materials, and keeping out of consideration relevant materials. Giving and taking of the adopted boy which is the most vital aspect in adoption having been established, the courts below were not justified in accepting his plea of adoption by referring to inconsequential matters like Raghunath being the only son of his parents could not have been given in adoption, or the improbability of adoption when the alleged adoptive parents were young enough to beget a child. Courts below should not have taken note of his description in an alleged sale deed dated 22-1-1975 as son of Dharamu. The original deed was not produced, and it is not known who had executed it, as he was not a party to the said deed. So far as the deed (Ext B) is concerned, it is submitted that the claim of adoption as made by Balaram having been discarded as untenable, the gift deed executed on the footing that he was the adopted son was inoperative. The lower appellate court should not have held that the gift made in favour of Balaram was not on account of adoption. In any event it should have held that Nisa had no competence to dispose of coparcanery property.
4. Mr. Ashok Mukherjee, learned counsel for the respondents submitted that the conclusions arrived at by the lower appellate court being essentially factual in character, there is no scope for interference in the second appeal.
5. As Manu stated, he whom his father and mother give to another as his son, provided that the donee have no issue, if the boy be of the same class, and affectionately disposed is considered as a son given, the gift being confirmed by pouring water. Adoption is the admission of a stranger by birth to the privileges of a child by a recognised form of affiliation. The Hindu Adoptions and Maintenance Act, 1956 (in short, the 'Act') amends and codifies the law relating to adoptions and maintenance and gives overriding application to the provisions on the two subjects contained in it. In the law of adoption it brings about some fundamental and important changes and the result is that immediately onthe coming into operation of the Act the law on the subjects of adoptions and maintenance hitherto applicable to Hindus whether by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having force of law ceases to have effect with respect to all matters dealt with in it. The requirements of a valid adoption under the Act are : --
(i) the person adopting must have the right to take and be lawfully capable of taking a son or daughter in adoption (Sections 7 and 8);
(ii) the person giving in adoption must be lawfully capable of doing so (Section 9);
(iii) the person adopted must be lawfully capable of being taken in adoption (Section 10); and
(iv) the conditions relating to adoption including actual giving and taking of the childwith the intention of transferring the child from the family of its birth must be compliedwith (Seetion 11).
6. Adoption is the legalised recognition of a person as one's son. According to Hindu notions, a son is necessary to a person not only to continue the lineage but also to offer oblation to the means or the ancestors to the fourth degree. The soul of a person dying issueless will not be saved. So this institution has been founded on the Hindu law. The person adopted has all the privileges of a natural born son except that there is a reduction in the share of property, different accord-ing to the various schools of Hindu Law, if a natural son is born subsequent to the adoption. Certain caremonies are necessary for adoption. There are five kinds of adopted sonsof which Dattaka and Kritrima are the two forms ordinarily found in India. The object of adoption in the context of personal law has always been spiritual as well as temporal. Not only adoption results in de jure transference of person from one family to another, but confers on adopted son rights like natural or legitimate son, in adoptive family. The origin of the custom of adoption is lost in antiquity. The ancient Hindu Jaw recognised twelve kinds of sons; of whom, as stated above, five were adopted. The old law of adoptionsamong Hindus was developed by the ancient commentaries like Dattaka Mimamsa and Dattaka Chandrika. It is peculiar only to Hindus and not recognised by other religions like Muslims or Christians. The object of old Hindu law of adoption was based more on secular reasons and religious motives as pointed out by the Privy Council in Bal Gangadhar. Tilak v. Srinivas Pandit, AIR 1915 PC 7 and Amareadra Mausing v. Sana-tan Singh, AIR 1933 PC 155, In V. T. S. Chandrasekhara v. Kulandaivela, 'AIR 1963 SC 185 apex Court observed that it may be safely held that the validity of adoption has to be judged by spiritual rather than temporal considerations and the devolution of property is only of secondary importance. In Hem Singh v. Harnam Singh, AIR 1954 SC 581 it was observed that under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have therefore been held to be mandatory and compliance with them regarded as a condition_of the validity of the adoption. The theory of adoption is that it makes the adopted boy to all intents and purposes the son of his adoptive father as completely as if he had begotten him in lawful wedlock. Where an adoption is made by a member of a joint family governed by the Mitakshara law, the adopted son becomes a member of the coparcenery from the moment of his adoption and the adoptive father has no power after adoption either by deed or will to interfere with the right of survivorship of the adopted son in the coparcenery property. An adoption may either be made by the man himself or by his widow on his behalf.
7. Under the amended provisions of Section 100 of the Code a second appeal lies only on a substantial question of law and a substantial question of law has to be formu-lated. Questions of law and fact are some-times difficult to disentangle. The expression 'fact' means and includes (a) anything, state of things, or relation of things capable of being perceived by the senses, and (b) any mental condition of which any person is conscious. A question whether any such fact exists or does not exist is a question of fact and a finding therein is a finding of fact. Aninference of fact must be distinguished from an inference of Law. Where from evidentiary facts and documents an inference is drawn as to the existence or non-existence of another fact, then the inference is one of fact; and the question as to the inference a question of fact. But when the question is whether certain facts give rise to a legal right or liability, the inference is one of law, and the question of such inference, a question of law. The relevancy of evidence is a question of law. Where there is evidence from which a conclusion of fact can be drawn, the weight of the evidence or the sufficiency of proof is a question of fact and the finding of the lower court is not to be interfered with in second appeal. Sections 100 and 101 of the Code taken together distinctly prohibit second appeals on questions of fact unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. It may be that the evidence is unsatisfactory or insufficient, or that it has not been properly appreciated it may be that the High Court is inclined to take a different view or that the decision is open to doubt it may even be that the finding may seem to be grossly and inexcusably erroneous, still if there is some legal evidence for the finding, and there is no such error or defect as enumerated in Section 100 of the Code, the High Court cannot interfere. A finding of fact can be set aside in second appeal, (a) where it is not based on any evidence or on legal evidence or on a judicial consideration of the evidence adduced,.(b) where the evidence is disbelieved 'for no reason, (c) where it is based on a misconception of the real point in controversy in the case, (d) where the conclusion of fact is not warranted by the facts on which it is based or is inconsistent with other findings in the case or is opposed to the case set up by the party in whose favour it is drawn, or is contrary to pleadings and evidence in the case, (e) where it is contrary to the facts found or is inconsistent with the statement of reasons therefor in the judgment or is based on quaint reasoning, or is vague, or indefinite or ambiguous, (f) where it is arbitrary or vitiated by prejudice, or is based on a distorted view of the evidence, or is based on surmises or extraneous considerations or where no reasons have been given for the finding, (g) where material facts or evidence have been ignored in arriving at the conclusion of fact and (h) where finding is perverse in the sense that no normal person could have arrived at that finding. It is true, as observed by the apex, Court in Dilbagrai Punjabi v. Shavad Chandra, AIR 4988 SC 1858 High Court while hearing appeal under Section 100 of the Code has no jurisdiction to reappraise the evidence and reverse the conclusion, arrived at by the lower court. The lower appellate court is under a duty to examine the entire relevant evidence having direct bearing on the disputed issue and if the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court will be fully justified in setting aside the finding.
8. Coming to the facts of case, appellant relies on the school admission register (Ext. 1), oral evidence of P.Ws. 3 to 7 and submits that conclusions of the courts below that there was no adoption cannot be sustained. It is further submitted that erroneously it has been held that the appellant being the only son of his natural parents could not have been given in adoption. Natural father's evidence has also been discarded without any reason. It is stated that in the admission register, appellant has been described as son of Kalandi Behera. So far as the deed is concerned, it has been styled as acknowledgment of adoption-cum-gift deed. It is submitted that appellate court fell into grave errors of law by holding that the same can be construed as a gift deed notwithstanding conclusion that defendant No. 1 was not the adopted son of Kalandi and Nisa. Learned counsel for respondents on the other hand submitted that highly unsatisfactory nature of evidence has been highlighted by the courts below. So far as adoption is concerned, it is submitted that the school admission register has been discarded by the courts below because entries were made there in different inks which was indicative of manipulation. In the sale-deed (Ext. A) the appellant was described as the son of Dharamu Behera. Additionally, in the voters' list also appellant has been described as the son of DharamuBehera.
9. So far as entry in admission register is concerned, such an entry is a very important piece of evidence as observed by the apex Court in L. Debi Prasad (dead) by L. Rs. v. Smt. Tribeni.Devi/AIR 1970 SC 1286. It has considerable value because in most of the cases it is in contemporaneous to the date on which adoption is claimed. Courts below have found that the LTI of Kalandi in the register, though has been stated to have been attested, attestor's identity is not indicated and it has been indicated in a different ink. It being a factual finding, not falling into category of perverse conclusion, there is no scope for interfering with the conclusion. Though there is no legal bar that the only son cannot be given in adoption, it being somewhat unusual, the Court has to assess evidence with care and caution. As observed by apex Court in A. Raghavamma v. A. Chanchamma, AIR 1964 SC 136 young age of the adoptive parents, and prospect of having children, has to be noted. In the absence of special circumstances the only son being taken in adoption appears to be some what unusual and improbable, though it is pleaded that after loss of several sons during infancy, Kalandi and Nisa wanted to adopt a son: Be that as it may, plea of adoption has not been discarded only on the ground of the only son being given in adoption. So far as voters' list is concerned, electoral roll being a public document is admissible evidence and it is not necessary to prove source of information on the basis of whereof facts stated in the roll were recorded, nor is it necessary that the person who prepared electoral roll has to be examined. Section 35 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') is relevant in this regard. To render a document admissible under the said section, three pre-conditions must be satisfied; first of all the entry that is relied upon must be one in any publication or other official book, register or record. Secondly, it must be an entry stating a fact in issue or a relevant fact, and thirdly it must be made by a public servant in discharge of his official duty, or by any other person in performance of the duty specially enjoined by taw. Such documents have been made admis-sible in evidence on account of their public nature, though their authenticity be not conformed by usual tests of truth, namely the swearing and the cross-examination of the persons who prepared them. They are entitled to the extraordinary degree of confidence partly because they are required by law to be kept, and partly because their contents are of public interest and notoriety; but principally because they are made under the sanction of oath of office, or at least under that of official duty by accredited agents appointed for that purpose. Reliance has been placed by the appellant on a decision of this Court in Kali Devi v. Adermani Dei, (1981) 51 CLT 384 to contend that voters' list has no evidentiary value. Facts involved in that case are entirely different, because list that was relied upon was a copy of preliminary roll, and not the voters' list and it did not contain signature of the relevant persons. In the peculiar facts of that case, the decision was rendered. Certified copy of sale-deed (Ext. A) on which reliance has been placed is of little consequence, because authenticity of this document has been challenged and in any event original has not been produced and evidence in regard to this document is scanty. Even if this document is kept out of consideration, on taking an overall view plea of adoption as raised by appellant has not been successfully proved. The courts below therefore, were justified in discarding that plea. The only other question that remains to be considered is defensibility of conclusion of lower appellatecourt that the deed was operative as a deed of gift, even if plea relating to adoption of defendant No. 1 is not accepted. Ext. B is relevant document. It is styled 'Pesyaputra Dattak Grahan'. Neither any deed of gift and acceptance executed and registered nor deed of acknowledgment acknowledging adoption is sufficient by itself to constitute legal adoption in the absence of actual giving and taking. It is not a substitute for actual giving or taking. Omission of day on date of adoption in a deed of acknowledgment is very vital. Such a deed loses all its significance. In Ext. B no mention of the date of adoption is there. The conclusions of the courts below about adoption of P.W. 1 as claimed has been rightly discarded.
According to respondents gift was made as a persona designata and document was mixture of adoption and gift. Intention of gift could be gathered from the recital of the document. Operation of gift is not dependant on the adoption. I find that without any elaborate discussion, the lower appellate Court has come TO a abrupt conclusion that the deed was one of gift.
10. Where a gift or bequest is made to a person who is described as an adopted son, but such person is not adopted at all or if he was adopted, his adoption is held to be invalid, validity of the gift or bequest depends on the intention of the donor or testator to be gathered from the language of the deed of gift or will and from the surrounding circumstances. If the intention is to benefit the donee as persona designata (that is a designated person), the addition of his supposed relationship is merely a matter of description and the gift prevails though description is incorrect. But it the assumed fact of adoption is 'the reasons and motive of gift and a condition of it' then the gift cannot take effect if the adoption is pronounced invalid. See AL PR Ranganathan Chettiar v. AL PR AL Periakaruppan Chettiar, AIR 1957 SC 815 and Yelamanchaili. Siva Panchaksharamma v. Yelamanchili Chinnabhavi . (deceased) thereafter Velamanchili Basararnma, AIR 1967 SC 207. Statements made to the effect that a person is the adopted son cannot be regarded as determinative of the question of adoption by any rule of law or prudence. The description as an adopted son may be merely description and not necessarily as a motivation. Validity of an adoption often becomes material while deciding such a question.
In that background, Ext. B is clearly, indicative of fact that gift was made on account of adoption and not bereft of it. But where gift or bequest is made to a person as possessing a particular character, intention may be to benefit a designated individual. Word referring to character or relationship being merely a matter of discretion, in the latter case ifidentification is complete, gift or bequest prevails though description turns out to be incorrect. The distinction between what isdescription only and what is reason or motive of gift or bequest may often be very fine but its distinction which must be drawn from a consideration of the language and the surrounding circumstances. Where therefore assumed fact of donee's adoption is reason and motive of gift and indeed a condition of it gift fails and if it turns out that there is no valid adoption, Where however a gift is made to a person in the erroneous belief that he is adopted son but intention is to benefit him in any event, it is gift to a person, A bare perusal of the deed in question leaves no manner of doubt that reason and motive of gift assumed fact of adoption. Since adoption has been pronounced to be not proved, the gift cannot take effect. The appellate Court was therefore, not justified in holding it to be a valid deed of gift. In essence the judgment and decree of trial Court are restored and those of lower appellate Court are set aside. The appeal is allowed in part. Parties are to bear their on,w costs.