P.K. Tripathy, J.
1. Defendant No. 1 in Title Suit No. 18 of 1978 of the Court of Sub-Judge, Athagarh is the appellant as against a decree for partition granted by the said Court on the prayer of the plaintiff/respondent No. 1, vide the impugned judgment delivered on 9th August, 1979.
2. Landed properties described in Schedule 'A' to 'E' are the subject matter of dispute in the suit for partition. Schedule 'A' property has been recorded in the name of Jairam Gochhayat, i.e. the adoptive father of the plaintiff and the defendant No. 1. The rest of the properties have been recorded in their names along with some other co-owners. The respective recorded tenants of Schedule 'C' to 'E' properties and their heirs figured as defendants 2 to 7 in the Court below. So far as the Schedule 'B' property is concerned, one Nabin was a co-recorded tenant. Plaintiff did not add any person as the heir and successor of Nabin on the ground of non-availability of any such heir and therefore, claimed half of the said property to his share and the other half share to defendant No. 1 out of the Schedule 'B' property.
3. According to the case of the plaintiff, he is the adopted son of Jairam Gochhayat and defendant No. 1 is the widow of the brother of said Jairam. His further case is that during the life time of Jairam and his wife Srimati, they lived jointly with defendant No. 1 and after their death also the property remained joint between himself and defendant No. 1, and since defendant No. 1 has attempted to dispossess him from the suit property, therefore he filed the suit for partition.
4. In her written statement, defendant No. 1 challenged to the status of the plaintiff as the adopted son of Jairam but did not dispute to the case of the plaintiff regarding joint ownership of the suit property with the family of Jairam. Defendant No. 1 claimed that they were all living jointly and after their death being the sole survivor she has become the absolute owner of the suit property to the extent of her own interest over the property besides to the interest of Jairam and after him his widow. She has asserted that plaintiff being a stranger to that joint family he is not entitled to any share out of the same. She has further pleaded that plaintiff being the son of the brother of Srimati (Widow of Jairam) and since said Srimati died leaving no issue, therefore, Ram Chandra Swain, the natural father of the plaintiff has engineered such a false case to grab a share from the property. She has also pleaded that the co-recorded tenant Nabin has died leaving a nephew named Naya Gochhi and the suit is bad for non-joinder of the heirs of said Nabin.
5. Defendants 2 to 7 filed a joint written statement admitting to the claim of the plaintiff relating to his status as the adopted son of Jairam as well as to his claim for partition.
6. Issues were recast on 9-7-1979 and the following three issues were taken up for adjudication of the suit :
'(i) Is the plaintiff the adopted son of late Jairam Gochhayat, and was there any giving and taking ceremony according to Hindu custom?
(ii) Is the suit maintainable, whether the suit lands are liable for partition amongst the parties, and what will be the share of each party?
(iii) Does the suit suffer from non-joinder of necessary parties, whether heirs of Nabin Rout are necessary parties or not?'
7. In course of hearing, plaintiff examined himself as P.W. No. 1 and adduced evidence of defendant No. 2 Nityananda Gochhayat as P.W. No. 2, Hadibandhu Satpathy the priest as P.W. No. 3 and Jadumani Barik a barber as P.W. No. 4, to prove his status as the adopted son of Jairam Gochhayat. In that context, he also proved Ext. 1, a Transfer Certificate granted by a school to show that he has been described as the son of Jairam. The record of rights with respect to Schedule 'A' to 'E' properties were marked as Exts. 2 to 2/g. Defendant No. 1, in reply, examined herself as D.W. 1 and also examined two other witnesses namely Shyam Sundar Barik and Natha Ojha (D.Ws. 2 and 3 respectively) to disprove the status of the plaintiff as the adopted son of Jairam. Out of them, D.W. 2 proved the entry in the School Admission Register marked Exts. A and B wherein it has been indicated that plaintiff was got admitted in the Institution by his natural father Ram Chandra Swain. D.W. No. 3. a co-villager has stated that Jairam and his widow died issueless leaving the entire property to defendant No. 1 and plaintiff is not the adopted son of Jairam.
8. On assessment of such evidence on record, trial Court recorded the finding by deciding the issues in favour of the plaintiff. In that process trial Court accepted plaintiff as the adopted son of Late Jairam, found the suit not bad for non-joinder of necessary parties and decided that plaintiff is entitled to a share as claimed.
9. Defendant No. 1/appellant argues with vehemence challenging to the findings recorded by the Court below on the ground of unreasonability in appreciating the evidence and losing sight of the position of law both on Evidence Act and Hindu Law while considering the issue of adoption. Before dealing with that aspect, it may be pointed out that in their evidence P.Ws. 2, 3 and 4 have stated about the fact that in the house of the natural father of the plaintiff the adoptive parents sought for adoption of the plaintiff and by performing a ceremony of giving and taking accompanied with some 'Pujas' the adoption ceremony was completed on the 'Basanta Panchami' day. P.W. 2 as an agnetic uncle, being a cousin of Jairam P.W. 3 as the family priest and P.W. 4 as the barber for the family, have deposed in that manner. While not disputing to the status of P.W. 2 as a cousin of Jairam, his evidence has been challenged with the suggestion that he was deposing falsehood. Evidence of P.W. 3 was challenged with assertion that he was not the family priest and similarly the evidence of P.W. 4 that he was not the family barber. In course of cross-examination of P.Ws. 1 to 4 defendant No. 1 even did not think of giving a suggestion that one Padma Satapathy is the family priest in the family of Jairam. However, in course of giving her evidence, she stated that Padma Satpathy is their family priest and therefore, the evidence of P.W. 3 shall not be accepted as the family priest. Court below rejected the aforesaid contention of defendant No. 1 and found the aforesaid evidence adduced by plaintiff credible in proof of the ceremony of giving and taking and adoption of the plaintiff in the family of Late Jairam.
10. While attacking to the finding, learned counsel for the appellant argues that the Court below did not properly consider and evaluated the evidence or record. His contention is that when P.W. 3 has not been proved to be the family priest and P.W. 4 has not been proved to be the family barber, their evidence should not have gathered credibility. That argument is heard to be rejected inasmuch as Defendant No. 1 has not examined the said Padma Satpathy or has not produced any acceptable evidence to show or suggest that said Padma Satpathy is the family priest or that P.W. No. 3 is not their family priest. On the other hand, P.W. 3 in the cross-examination has stated that Padma Satpathy was staying at Calcutta and returned to the village about 3 years back (from the date of that deposition). Evidence of P.W. 3 is also challenged on the ground that he does not know all the family members, i.e., daughters of Jairam, he does not know their 'Gotra' and who their ancestors were. In that respect, it reveals from the evidence of P.W. 3 that he knows the 'Gotra' and he was capable of speaking about the names of the ancestors but he could not tell if Jairam had sisters, but he knows Jairam's sister's son. It is apparent from that evidence that P.W. 3 was not capable of stating the name of the sister of Jatram. That circumstance is not sufficient to discard or discredit evidence of P.W. 3 on the issue of adoption and status of plaintiff being coming short of the provision in Section 50 read with Section 60 of the Evidence Act. Evidence of P.W. No. 4 as the barber who attended the ceremony also stands on the same standard like the evidence of P.W. No. 3. Mere suggestion to P.W. No. 4 that he is not the barber for the family is not sufficient to discard his evidence when P.W. No. 4 has denied to that suggestion and because defendant No. 1 has neither adduced credible evidence that some other persons are the family priest and barber nor she has examined those persons who were named by her as the family priest and barber.
11. In challenging to the credibility to the evidence of the P.Ws. and particularly to the evidence of P.W. Nos. 3 & 4 appellant has relied on the case of Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378. Apex Court has propounded in that case that no particular form is prescribed for adpption ceremony but the law requires that there must be a giving and taking ceremony in as much as the natural parents shall hand over the adoptive boy and the adoptive parents shall receive him. Therefore, the cited authority has not considered relevancy of the opinion evidence in accordance with Section 50 read with Section 60 of the Evidence Act or to discard evidence of the type which was deposed by P.Ws. 3 and 4. It is not out of place to note here that in their evidence all the three witnesses to the adoption have consistantly stated about the giving and taking ceremony.
12. Section 50 of the Evidence Act provides that when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a Member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. Section 60 of the Evidence Act provides that oral evidence must be direct. Therefore, when P.Ws. 2, 3 and 4 have deposed about adoption claiming personal knowledge about that ceremony and out of them P.W. No. 2 is the uncle of the plaintiff being an agnetic causin of Jairam and brother-in-law of defendant No. 1 and the rest two are the family priest and barber, their evidence does not fall short of the requirement as provided in Section 50 read with Section 60 of the Evidence Act. When each of the P.Ws. 2, 3 and 4 fulfil the condition that they have special means of knowledge in the above noted manner, such opinion evidence is relevant evidence to be considered on the issue as to whether plaintiff is the adopted son of late Jairam.
13. Learned counsel for the appellant argued that it appears from Exts. A and B that Jairam has not been described as the father of the plaintiff and Ram Chandra Swain got the plaintiff admitted in the School, therefore, the entry in Ext. 1 showing the plaintiff as the son of the adoptive father is not sufficient to prove his status as the adopted son of Jairam. In that respect he also relies on the case of Bhim Mandal v. Magaram Corain, AIR 1961 Patna 21 and (1995) 2 Orissa LR 135 : (AIR 1996 Orissa 38) (Raghunath Behera v. Balaram Behera). In both the above decisions, the cited authorities have propounded about admissibility of an Admission Register in view of the provision in Section 35 of the Evidence Act. There is no dispute to the admissibility of Exts. A and B either by the plaintiff or in the findings recorded by the Court below. A document if admissible in accordance with Section 35 of the Evidence Act, will automatically not be credible simply because it has been admitted as evidence. A document admitted as evidence is to be considered subject to relevancy and by assessing the evidence as a whole and not in isolation. In that context the trial Court has taken the pain to examine all the relevant evidence which includes Ext. 1, the School Leaving Certificate of the plaintiff and Ext. A i.e. the copy of relevant entries of the admission Register of Sarpeswar M.E. School and Ext. B i.e. the copy of the School Leaving Certificate from that School. Trial Court has held that Ext. 1 indicates that plaintiff was admitted into the Primary School by the adoptive father and, therefore, the adoptive father's name was noted in the School Leaving/Transfer Certificate. That entry in Ext. 1 runs consistent to the oral evidence adduced by the plaintiff in proof of his status as the adopted son of Late Jairam Gochhayat. On the other hand, it appears from Ext. a that Ram Chandra Swain, the natural father of the plaintiff took the plaintiff to Sarpeswar M.E. School, Balarampur for the purpose of admission. In that Admission Register Plaintiff's name was noted as Krushna Chandra Gochhayat whereas as against Column No. 4 the person who got him admitted has been noted as Ram Chandra Swain, the natural father of the plaintiff. Therefore, description of said Ram Chandra Swain in Ext. 2 as the father of Krushna Chandra Gochhayat is an incorrect description. The trial Court, therefore, found that Exts. A and B do not prove the status of the plaintiff as the son of Ram Chandra Swain and do not dislodge the plea of adoption advanced by him. On a close scrutiny of the evidence on record, this Court finds no incorrect or illegal approach by the Court below in that respect.
14. Learned counsel for the appellant also argues that when Ram Chandra is alive, he was not examined by the plaintiff to prove regarding the factum of possession (adoption?) so also under what circumstance he went to get the plaintiff admitted in the educational institution. In that respect the appellant relies on the ratio in the case of Lachman Utamchand Kripalini v. Meena alias Mota. AIR 1964 SC 40 and State of Rajasthan v. Bhola Singh, AIR 1994 SC 542. In the first case (supra), in a proceeding under Section 10(1) and 9 of Hindu Marriage Act, the Apex Court per majority view decided to draw adverse inference under Section 114, illustration (g) of Evidence Act against the husband for not examined his mother to prove the negative aspect on the issue of consent. In the second case (supra) the Apex Court in a criminal case found the evidence of the sole eye-witness to be not credible and therefore drew adverse inference for non-examination of the witnesses who arrived at the scene of occurrence soon after the occurrence. Thus, ratio in both the cited cases are of no relevance to the issue involved. Be that as it may, plaintiff is required to prove his status as the adopted son so as to succeed in getting a share in the family property. In the process of proving that if plaintiff would be found guilty of suppressing material evidence then only adverse inference can be drawn against him. In this case the entries in Exts. A and B regarding Ram Chandra Swain getting him admitted in the M.E. School cannot be regarded as detrimental to his interest in asmuch as it is the admitted case of the parties that Jairam died in the year 1964. Simply because the plaintiff was given in adoption to the family of Jairam, that does not deprive his natural father Ram Chandra to not to see to the education of the plaintiff. Therefore, simply because Ram Chandra got him admitted, that does not go against the factum of adoption. Apart from that, no circumstance has been brought on record to show that examination of Ram Chandra Swain as a witness would have been detrimental to the case of the plaintiff. Apart from that, this Court finds that, in challenging to the status of plaintiff as not the adopted son of Jairam, relevant evidence which could have been brought by defendant No. 1, if available, has not been brought on record. Such evidence could have been the Voter List or entries in any other document wherein plaintiff has acted or transacted as son of Ram Chandra Swain. Therefore, defendant No. 1 cannot adopt a double standard in defending to the case by not producing the relevant evidence, if available, and finding fault with the evidence adduced by the plaintiff when there is no such fault/lacunae in such evidence.
15. Appellant also argued that evidence of defendant No. 1 and non-giving of appropriate suggestions to her and her witnesses on the plea of adoption and similarly giving of appropriate suggestions by the defendant No. 1 to the P.Ws. during the course of cross-examination are sufficient to discard the evidence on adoption. In that respect he relied on the case of Traders Syndicate v. Union of India, AIR 1983 Calcutta 337. In that context, in the notes of submission filed at the time of argument, some more reported cases have been noted, but the above noted decision only was pressed into service. Therefore, it is not necessary to refer to the other decisions in that context. In Traders Syndicate (supra) suit filed by the consigner was defended by the Railway, inter alia, on the ground that plaintiff had never raised a claim before the concerned Railway Authorities. Witness examined by the plaintiff was not cross-examined. In that context, it has been held that it was the bounden duty of the defendants to cross-examine plaintiff's witness on the point in dispute and to suggest the defence plea. On perusal of the facts and circumstances of the said case it is found that the said ratio is not available to be applied in the present case.
16. Learned counsel for the appellant argued that there is descripancies as to the age of plaintiff on a reference to the cause title of the plaint, Ext. 1, Exts. A & B and the age given at the time of examination of the plaintiff and because of that, it be held that plaintiff could not have been adopted by Jairam. In that context this Court, on a reference to the plaint, found that the plaintiff has described him to be 25 years old when he instituted the suit in August, 1978 and described himself to be 25 years old when he deposed in July, 1979 and, therefore, plaintiff's year of birth be 1953 or 1954. Taking a clue from that, defendant No. 1 argued that according to Ext. 1 the date of birth is 18-5-1955 and according to Exts. A and B the date of birth is 25-5-1956 and therefore, if he was adopted when he was ten months old, i.e., by 1955 (by calculating the date of birth according to the age described in the plaint), then he was not born if the age is calculated by referring to Exts. A and B. This Court finds no credibility in that argument, because admittedly the date of birth was not given in his pleading. He described his tentative age. The provision in Order 7, Rule l(a), CPC does not mandate that the date of birth or the exact age is to be mentioned in the plaint by providing the completed years, months and days of such age. Apart from that, in the School Admission Register the correct date of birth or the exact date of birth is seldom reflected. Entry of date of birth in School Admission Register may be admissible but is not conclusive proof of the date of birth or age of a person. In this case the date of birth, which has been there in Exts. A and B, were not given by the plaintiff but by his guardian who got him admitted. There is no admission from the plaintiff that such date is the exact or the correct date of birth. No cross-examination was made to any of the witnesses including the P.W. 1 in that respect. While deciding the issue on adoption and about the date of adoption, the trial Court has adopted the theory of preponderance of probability and not the theory of proof beyond all reasonable doubt to record that the plaintiff was adopted when he was 10 months old. The Court below has not recorded the finding that the plaintiff was adopted in the year 1955. Therefore, the criticism against the impugned judgment in that respect is not sustainable.
17. For the reasons stated above, the finding on Issue No. 1 is confirmed by rejecting the above noted contentions raised by the appellant.
18. So far as the issue relating to nonjoinder of necessary parties is concerned, though defendant No. 1 took the plea that one Naya Gochhi is the nephew of Nabin, but no evidence worth the name in that respect was tendered. Be that as it may, any person claiming a share in Scheduled 'B' property may not be bound by the impugned decree if he was not added as a party in the suit. Therefore, the suit is not liable to be dismissed on the ground of non-joinder of necessary parties when there is no proof on record that Nabin has died leaving an heir other than the plaintiff and defendant No. 1.
19. For the reasons indicated above, the appeal stands dismissed. Parties are directed to bear their respective cost of litigation in this forum. Hearing fee be assessed at contested scale.