A.K. Parichha, J.
1. Defendant No. 1 is in appeal against the judgment and decree passed by the learned District Judge, Dhenkanal in Title Appeal No. 3 of 1981 confirming the judgment and decree of Subordinate Judge, Angul passed in Title Suit No. 1 of 1978-I.
2. The present respondent as plaintiff filed the above noted suit pleading inter alia that the suit Schedule 'A1 property belonged to Mahi Sahu, who got it in the family partition. Mahi Sahu had two daughters; Surkita and Ukuli (D-1). Surkita died in 1959 leaving a minor son Kishori (plaintiff). Since Mahi and his wife Hema had no son and after the death of Surkita, Kishori was left uncared for, Mahi and Hema adopted Kishori as their son in the year 1966. Mahi died in 1969. Till his death he was in possession of the suit land. After his death, his wife Hema (D.2) and adopted son Kishori (plaintiff) possessed the suit land jointly. When the mother stood thus, defendant No. 1 in the year 1972 staked her claim over the suit land with a plea that the same had been gifted to her by the father Mahi and in 1973 she (Ukali) forcibly dispossessed the plaintiff from the suit land. The plaintiff, therefore, filed the suit for partition of the properties of Mahi and for allotment of 4/9th share in his favour, 4/9th share in favour of Hema (D-2) and 1 /9th share in favour of Ukali (D-1). The defendants filed written statement denying the claim of adoption and share of the plaintiff. They pleaded inter alia that Mahi never adopted the plaintiff and the plaintiff had no occasion to possess the suit land. They claimed that on 10-1-1963 Mahi gifted away the suit property to defendant No. 1 by virtue of registered deed and defendant No. 1 became the owner in possession of that property. She got the suit lands mutated in her name in the records of right and paid rent regularly. Defendant No. 1 also took a plea that by virtue of her long, open and continuous possession over the suit land; she has acquired title by adverse possession.
3. From the pleadings of the parties learned trial Court framed as many as ten issues. The plaintiff examined six witnesses including himself, but he did not produce any document. The defendants also examined six witnesses and produced the khatian Nos. 125 and 6, the gift deed and rent receipts, which were marked as Exts. A to D series respectively. On consideration of such oral and documentary evidence, learned trial Court came to hold that the plaintiff is the adopted son of Mahi, that there had been no gift deed of the suit land in favour of defendant No. 1, that defendant No. 1 has not perfected her title by way of adverse possession. With these findings learned trial Court decreed the suit. In appeal, learned lower appellate Court confirmed the said finding of the trial Court. Therefore, this second appeal.
4. The following substantial questions of law were formulated at the time of admission for consideration in the appeal:
(i) Whether the Court below were justified in giving a finding that the plaintiff was the adopted son of Mahi Sahu, when the adoptive mother. Hema Bewa, was not examined though alive, the School Admission Register, which is admitted to be in existence was not brought before the Court and when the voter list, Ext. E. describes the plaintiff as the son of Sapana Sahu, the natural father?
(ii) Whether learned lower appellate Court was justified in rejecting the gift deed, Ext. C, with a simple observation that marking of a document is a ministerial act although the said document was marked as Ext. C without objection?
(iii) Whether learned Courts below were legally justified in rejecting the gift deed, Ext. C, on the ground that the same was not proved by an attesting witness although there was no specific denial about the execution of the gift deed?
(iv) Whether the Courts below were justified in their findings that defendant No. 1 had not acquired title over the suit land by adverse possession in the face of the legal principle that the possession through an invalid document amounts to adverse possession from the date of the invalid document?
(v) Whether the finding of the Courts below that the suit is maintainable is correct, when the gift deed in favour of defendant No. 1 was never challenged within the statutory period prescribed under Article 59 of the Limitation Act?
(vi) Whether the Courts below were justified in allotting 4/9th share to the plaintiff and 1 /9th share to the defendant No. 1 even after the death of Hema Bewa (D-2) during pendency of the appeal?
5. Mr. R.C. Rath, learned Counsel for the appellant stated that the burden of proving adoption was on the plaintiff, but he did not plead regarding day, date and tithi of adoption; did not produce any document of adoption; did not produce the school admission register although he admitted the existence of the same; did not examine the adoptive mother though she was alive; did not examine the barber or priest, so it was not legal and proper on the part of the Courts below to accept the plea of adoption particularly when the voter list, Ext. E of the year 1980 contains an entry that the plaintiff is the son of Sapana Sahu, the natural father. According to him, such conclusion of the Courts below is perverse and based on no evidence. Regarding gift deed, he argued that Ext. C was marked without objection and there was no specific pleading of evidence denying execution of the same, so, the finding of the Courts below that the gift deed is inadmissible as it was not proved by any attesting witness was wrong and contrary to the proviso of Section 68 of the Indian Evidence Act. Mr. Rath also argued that the Courts below after ruling that Ext. C is an invalid document and does not convey any title, should have ruled that the possession of the defendant No. 1 over the suit land was adverse in nature as law is settled that the possession of a person over a land through an invalid document becomes adverse in nature from the date of such invalid document.
6. Mr. B. N. Lenka, learned Counsel for the respondent supported the findings of the Courts below and stated that the plaintiff was not obliged to examine defendant No. 2, as she was supporting the case of the defendant No. 1 and she was also not duty bound to produce the school admission register as she never relied on that document. He stated that if the defendant No. 1 felt that the entry in the school register was in support of her case, then she could have produced that document. He also argued that non-production of any adoption document, non-examination of the priest, barber and non-mention of the specific date, day of tithi of adoption do not nullify an adoption and that an adoption becomes legally valid if the giving and taking ceremony is established through evidence. On the findings of the Courts below on the issue of gift, Mr. Lenka argued that the gift deed was not proved by any of the attesting witensses and was, therefore, rightly excluded from the evidence. On the score of limitation, he argued that mutation order or subsequent payment of rent pursuant to such mutation does not create any right, title in favour of a party and, therefore, the suit which was for partition and adjudication of right, title of the parties was never barred by limitation simply because a suit for setting aside the gift and mutation was not filed earlier within the prescribed period of limitation contemplated under Article 59 of the Limitation Act.
7. Since an adoption diverts the natural line of succession, the burden of proving proper and legal adoption lies on the shoulder of the party, who claims adoption. In the present case, the plaintiff pleaded that Mahi and Hema adopted him as their son in the year 1966 and thereafter he became their son and legal heir. The plaintiff tried to prove the adoption through oral evidence. He did not produce any document of adoption, or any records, registers or incidental document which described him as the son of Mahi and Hema. Hema, the adoptive mother as defendant No. 2, in her written statement stoutly denied that she and her husband adopted the plaintiff as their son, P.Ws. 2 and 3 claiming themselves as relatives, P.W. 5 as co-villager, P.W. 6 as the father -in-law of the natural father of the plaintiff supported the plea of adoption and spoke about the ceremony of adoption including the giving and taking. D.Ws. 1 to 3 denied that there was any adoption and also denied the fact that Trilochan Satpathy was the family priest or that he performed the ceremony. Learned first appellate Court observed that the P.Ws. were reliable and their evidence was unblemish whereas the evidence of D.Ws. were not acceptable as they were partisen witnesses. It can be seen from the judgments of the Courts below that there were discrepancies in the evidence of the P.Ws. about the year of adoption. They also did not describe specifically the day, date and Tithi of such adoption. The natural father of the plaintiff and Hema, the adoptive mother were not examined to support the plea of adoption. P.Ws. 1 and 2 stated that Mahi got the plaintiff admitted in the school and that Mah was described as the father of the plaintiff in the school record, but the school admission register or records were not called for or produced. The voter list of 1980 produced as additional evidence contains entry showing the plaintiff as son of Sapneswar, and as a resident of village Ghuntulpasi. It was also available in the evidence that the plaintiff was the only son of his natural parents.
8. Learned first appellate Court did not seriously analyse the above noted evidence and circumstances and held the alleged adoption is valid by simply observing that the evidence of P.Ws. 1 to 5 were reliable. It has already been clarified in the case of A. Raghavamma v. A. Chenchamma : [1964]2SCR933 , that burden of proof of adoption of only son is very heavy on the person propounding adoption, because in our society ordinarily an only son is neither given nor taken in adoption. Similarly, in the case of Hara Dibya v. Pravakar Satapathy (1990) 70 CLT 607, it has been held that as per the proviso to Section 7 of the Hindu Adoption and Maintenance Act, 1956, it is imperative that any male Hindu who desiers adoption must have the consent of his wife if the latter is living, unless she has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind and, therefore, the adoptive mother has a vital role to play in the process of adoption. It was also observed that the onus becomes heavier on the plaintiff claiming adoption when the alleged adoptive mother herself disputes the claim of adoption. In the present case, defendant No. 2, the alleged adoptive mother pleaded that she and her husband did not adopt the plaintiff. Though the plaintiff claimed that after the adoption in 1966 he remained in the house of Mahi and Hema and continued his possession over the suit property, not a single document was produced to show his relationship with Mahi and Hema or his possession over the suit land. The voter list of 1980 contained entry showing the plaintiff as the son of Sapneswar. Now, the appellant in this second appeal also filed a petition to introduce the latest voter list of 2007 as additional evidence, wherein the plaintiff has been shown as the son of Sapneswar Sahoo and his house number has been shown as 185 of village Ghuntulipasi. Though there is objection for introduction of this voter list as additional evidence, yet the same is accepted as additional evidence, as it would help in analysing the conduct of the parties and circumstances of possession, D.W. 2, the Ward Member of village Ghuntulipasi also stated that the plaintiff is the son of Sapneswar and is residing in the house of his natural father. No explanation is forthcoming from the plaintiff or his natural father as to why and how, the plaintiff is shown in public records like voter list as the son of Sapneswar and resident of Ghuntulipasi all along and how he is shown residing in the house of his natural father. Oral evidence can be created easily, but documents and records particularly official or public records cannot be created and so more reliance is to be placed on the entries of such documents. The plaintiff did not produce any document in support of adoption or his possession of the properties of Mahi as adopted son of Mahi. Learned trial Court held that the defendant should have produced the school register, forgetting the legal principle that the burden of establishing adoption is always on the person claiming adoption. The approach of the Courts below to the subject of adoption, therefore, clearly appears to be perverse and perfunctory. The above noted facts and circumstances are clearly against the plea of adoption and such circumstances should not have been overlooked by the Courts below in preference to the statements of the P.Ws. which were discrepant so far as the year, date and tithi of adoption. Whenever, the Courts below record a finding, which is based on no evidence or perverse approach, the finding can be reversed in second appeal (see the case of Puni Bewa v. Bijaya Kumar Mohapatra (1987) 63 CLT 686). Since the finding on the issue of adoption is a result of perverse approach and non-consideration of materials, evidence and circumstances, the finding on that issue is set aside.
9. The Courts below concurrently held that there was no valid gift by Mahi Sahu in favour of defendant No. 1 and that gift deed (Ext. C) did not convey any right, title of the suit land in favour of defendant No. 1. Mr. Rath, learned Counsel for the appellant stated that since Ext. C was marked as an exhibit without objection, formal proof of the said document was not necessary through any attesting witness and, therefore, the Courts below were wrong in their approach demanding formal proof of the document through attesting witness. He also stated that once formal proof of a document is waived, the contents of the document have to be accepted and in that view of the matter, there was no scope for the Courts below to say that the gift of the suit land by Mahi Sahu in favour of defendant No. 1 was invalid. In this regard he cited the cases of Gopinath Mahakud v. Ramachandra Mahakud 1971 (2) CWR 472; Sarat Chandra Mohanty v. Chanramani Bowa : AIR1972Ori222 ; Durgapada Jana v. Nemai Charan Jena : AIR1986Cal23 ; Kanchanganga Co. Ltd. v. State of West Bengal : AIR1973Cal325 and Dhruba Sahu (dead) and after him Nalumoni Sahu v. Paramananda Sahu : AIR1983Ori24 . In all these cases it was essentially said that when a document is admitted after formal proof being waived it means admission by a party waiving such formal proof on due execution of such document. Section 68 of the Evidence Act says that:
68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving this execution, it there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call on attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
As per Section 122 of the Transfer of Property Act, a document of gift is required to be attested. Such document cannot be used in evidence unless one attesting witness has been called for proving the execution. The only exception is that such proof by attesting witness will not be necessary, if the execution of such document is either admitted or formal proof at the time of admission of the document is waived. According to Mr. Rath, Ext. C was marked without objection and, therefore, the plaintiff-respondent cannot challenge the execution of the document at a later stage. It is true that if a party does not raise objection to the admission of a document and formal proof of the document is waived then objection at a later stage regarding due execution of the document cannot be entertained. But before adopting this principle, the Court must first of all satisfy itself that actually the adverse party did not raise objection to the admissibility of the document and waived formal proof thereof.
10. In the present case, the plaintiff propagated that he is the adopted son of Mahi Sahu and has accordingly got a share in the property. In the written statement, the defendant No. 1 claimed that Mahi Sahu had gifted away the suit property in her favour and D.W. 5, the scribe, stated that the scribed Ext. C and signed on the same. The execution of the document was stoutly challenged by the plaintiff while cross-examining this witness. There is no observation in the trial Court record either in the order sheet or in the deposition of D.W. 5 that the plaintiff either admitted the execution of the gift deed or waived formal proof thereof. So, the endorsement of the concerned clerk on the list of the documents that the document was marked without objection is of no assistance and could not by itself raise a presumption that the plaintiff admitted the execution of the document or waived formal proof of Ext. C.
11. Even otherwise proof of execution of a document by itself cannot presuppose the correctness of the entire contents of a document. So, not only the contents of the documents, but the surrounding facts and circumstances are to be considered before arriving at a conclusion that right, title of the property noted in the document actually passed to the beneficiaries named in the document. In the instant case, the scribe, D.W. 5, stated that he scribed Ext. C and his own signature on the document is Ext. C/1. He stated that Mahi Sahu also signed on the document, but in cross-examination, he was not sure if Mahi Sahu signed the document in his presence. He admitted that he cannot say if the signature Ext. C/2, was given by Mahi and if the person signing was in fact Mahi Sahu. He admitted that he never knew Mahi Sahu before the date of scribing the document and further admitted that the signature of Mahi on Ext. C is in a different ink than the ink used in the document. He also admitted that when ever he scribes a document he normally takes the signature of the executant in the same pen and same ink. These evidence not only show that the plaintiff stoutly denied the execution of the document by Mahi Sahu, but also reveal that the scribe is not sure if the person executing the document was Mahi Sahu and if such person signed in his presence. There was no evidence from the side of the defendant No. 1 that the attesting witnesses are dead or not available. There was also no evidence to show that defendant No. 1 made any attempt to bring any of the attesting witnesses to prove that actually Mahi Sahu executed the document and intended to gift away the suit property to defendant No. 1. Section 122 of the Transfer of Property Act defines 'gift.' The essential ingredient of a gift is that the donor must give a property to the donee without any consideration and the donee must accept the gift. In the present case, defendant No. 1 herself admitted that she did not know about the existence of (he gift deed and only when she got settlement record she knew about the gift deed. This shows that as donee she did not accept the gift at the time of the alleged gift or execution of the gift document. In such situation, the principle of no objection or waiver of formal proof was not available to the appellant-defendant No. 1 and rightly the Courts below rejected the plea of gift and held that the defendant No. 1 did not get any right, title through Ext. C.
12. A question is raised about the maintainability of the suit on the plea that the gift deed in favour of defendant No. 1 was never challenged within the statutory period of limitation prescribed under Article 59 of the Limitation Act. First of all, it is not there in the pleadings or evidence that the plaintiff was aware of any such gift deed. Then the evidence and circumstances reveal that the gift deed was not genuine and did not convey any right in favour of the defendant No. 1. In such situation, there was no scope of the suit being barred by Article 59 of the Limitation Act.
13. Plea of adverse possession was raised by defendant No. 1. Law is settled that as between the co-sharers possession of one co-sharer is in law possession of all co-sharers and such possession of one co-sharer cannot constitute adverse possession against the other co-sharer. So, even if it is accepted that defendant No. 1 was in possession of the suit land for some time that will not amount to adverse possession against the other co-sharers and, therefore. Defendant No. 1 cannot derive any title over the suit property by adverse possession.
14. The substantial questions of law are accordingly answered. The plaintiff is not found to be the adopted son of Mahi Sahu and the gift of the suit property in favour of defendant No. 1 is also not found to be genuine. So, the property left by Mahi Sahu will pass on to the natural heirs by intestate succession. Admittedly, the parties are governed by Mitakshara School of Hindu Law. Now that widow of Mahi Sahu, namely; Hema is no more, the property will be succeeded by defendant No. 1 and the plaintiff, who is the only issue of Surkita in equal share. So, the prayer for partition of the suit property is decreed to the extent that the plaintiff and defendant No. 1 would each get half share in the same.
15. In the result, the appeal is allowed in part on contest, but in the peculiar circumstances, the parties arc directed to bear their own costs.